Public Prosecutor when asking for withdrawal of prosecution U/s 321 of CrPC to act independently with application of mind #indianlaws

Feb
10
2016


The Supreme Court, in this case has held that while filing an application u/s 321 of CrPC, the Public Prosecutor is required to apply his own mind and the effect thereof on the society in the event such permission is granted. The Public Prosecutor is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large. He is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective. 




A second complaint to the District Forum is maintainable when the first complaint was dismissed for default #indianlaws

Jan
31
2016


There is no provision parallel to the provision contained in Order 9 Rule 9(1) Code of Civil Procedure which contains a prohibition that if a suit is dismissed in default of the Plaintiff under Order 9 Rule 8, a second suit on the same cause of action would not lie, in the Consumer Protection Act. That being so, the rule of prohibition contained in Order 9 Rule 9(1) Code of Civil Procedure cannot be extended to the proceedings before the District Forum or the State Commission. Therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.

 




Provisions of the SARFAESI Act cannot be used to override the provisions of Rent Control Act #indianlaws

Jan
31
2016


Supreme Court held that a landlord cannot be permitted to do indirectly what he has been barred from doing under the Rent Control Act, more so when the two legislations, that is the SARFAESI Act and the Rent Control Act operate in completely different fields.  The provisions of the SARFAESI Act cannot be used to override the provisions of the Rent Control Act. A tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant.




Giving of dowry and traditional presents does not always raise a presumption that it’s custody is with in-laws #indianlaws

Jan
31
2016


The Court clarified that giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act. In respect of ‘stridhana articles’ given to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house and used by her in her matrimonial house. Accordingly, it could not be held that dowry was given to groom’s parents and sisters who were living separately from the couple and they were duty bound to return the same to the deceased.

In the absence of specific allegations of entrustment of the dowry amount and articles to the in-laws, continuation of criminal proceeding against Appellants was held to be unjust and improper. 

The court further observed that power under Section 482 Cr.P.C. should be sparingly exercised in rare cases. When a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is to determine as to whether the uncontroverted allegations as made in the complaint prima facie establish the offence. The Court must take into consideration any special feature which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.

 




In the absence of pleading, evidence, if any, produced by the parties cannot be considered #indianlaws

Jan
20
2016


Supreme Court observed that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It was further observed that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question.

Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. 



Tags: 

In a Contract of Insurance, Parties (insurer/insured) can themselves decide on benefits #indianlaws

Jan
20
2016


A contract of insurance is one of the species of commercial transaction between the insurer and insured. It is for the parties (insurer/insured) to decide as to what type of insurance they intend to do to secure safety of the goods and how much premium the insured wish to pay to secure insurance of their goods as provided in the tariff. If the insured pays additional premium to the insurer to secure more safety and coverage of their insured goods, it is permissible for them to do so. Rule of contra proferentum applies only when there is ambiguity in the policy. This rule becomes operative where the words are truly ambiguous; it is a rule for resolving ambiguity and it cannot be invoked with a view to creating a doubt.




Reserve Bank cannot deny information sought under Right to Information Act, 2005 #indianlaws

Jan
20
2016


RTI Act is enacted to empower the common people, the test to determine limits of Section 8 of RTI Act is whether giving information to the general public would be detrimental to the economic interests of the country? Supreme Court observed that the Public Information Officers (PIO) under the guise of one of the exceptions given under Section 8 of RTI Act, cannot evade from the general public,the rightful information that they are entitled to.The Legislature’s intent was to make available to the general public such information which had been obtained by the public authorities from the private body. Had it been the case where only information related to public authorities was to be provided, the Legislature would not have included the word “private body”.

RBI does not place itself in a fiduciary relationship with the Financial institutions because, the reports of the inspections, statements of the bank, information related to the business obtained by the RBI are not under the pretext of confidence or trust. It is supposed to uphold public interest and not the interest of individual banks. RBI has a statutory duty to uphold the interest of the public at large, the depositors, the country’s economy and the banking sector. Thus, RBI ought to act with transparency and not hide information that might embarrass individual banks.




If the conclusion on the facts in evidence made by the court below is possible, there is no perversity #indianlaws

Jan
11
2016


It is well settled that the first appellate court, under Section 96 of the Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse. Further, in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. The trial court had given definite finding on structural alteration done by the tenant which was also endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which was a pure question of fact.




Claim petition is maintainable at a place where insurance company is carrying on its business #indianlaws

Jan
11
2016


The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business.




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.



Tags: 

Proceedings by a secured creditor under SARFAESI Act cannot be interfered with by a Company Judge under the Companies Act #indianlaws

Jan
2
2016


The required provisions of the Companies Act are incorporated in the SARFAESI Act for harmonizing the SARFAESI Act with the Companies Act in respect of dues of workmen and their protection under Section 529 A of the Companies Act. In view of such exercise already done by the legislature, it was held  by the Supreme Court as not trite to take recourse to any provisions of the Companies Act and permit interference in the proceedings under the SARFAESI Act either by the Company Judge or the liquidator.




Assignments of Life Insurance policies are valid and binding #indianlaws

Jan
2
2016


Apex Court clarified that the insurance policies issued by LIC (Appellant) are transferable and assignable in accordance with the provisions of the Insurance Act, 1938 and in terms of the contract of life insurance.The Apex Court held that the 2015 amendment to Section 38 of the Insurance Act is prospective in nature and the intention of the Legislature is clear in incorporating sub-section (9) which protects rights and remedies of assignees that arose prior to the commencement of the Amendment Act provided that they comply with the requirements laid out in Section 38 are valid.  




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.



Tags: 

Appellate court to allow plea of additional evidence for ‘substantial cause’ and only if it is ‘required’ by the Court #indianlaws

Dec
9
2015


For expending the power under Order 41 Rule 27 the Appellate Court has to read the words “or for any other substantial cause” with the word “requires”, which is set out at the commencement of the provision so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply. It is under these circumstances such a power could be exercised.




Proximate & live link between cruelty based on dowry demand and death is a must to prove dowry death #indianlaws

Dec
9
2015


 

To attract the provisions of Section 304B, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty or harassment “for, or in connection with the demand for dowry”. The expression “soon before her death” used in Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. Though the language used is “soon before her death”, no definite period has been enacted and the expression “soon before her death” has not been defined in both the enactments. Accordingly, the determination of the period which can come within the term “soon before her death” is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned.




Husband has a pre-existing duty to take care of health and safety of the wife #indianlaws

Dec
9
2015


It is a duty of the husband to take care of the health and safety of the petitioner-wife. In the instant case also it was a primary duty of the husband only to provide facilities for the treatment of his wife. This is a pre-existing duty of the husband, provided the husband has sufficient means and he is diligently doing his part in taking care of her. In the present case, by the mediation settlement agreement the respondent-husband promised to do something which he was already duty bound, and the same was not a valid consideration for the settlement. The wife was suffering from such a disease which compelled her to agree for the mutual consent divorce and therefore her consent is vitiated for the same.




Time to file reply to consumer complaint not later than 45 days from the receipt of notice #indianlaws

Dec
9
2015


The Supreme Court held that the District Forum can grant a further period of 15 days in addition to the 30 days (from the date of notice) provided for in section 13 of the Act to the opposite party for filing his version or reply and not beyond that. It was held that the view expressed by the three Judge Bench of this Court in Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi [(2002) 6 SCC 635] would prevail as the judgment delivered in this case holds the field. .Supre




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.



Tags: 

Amendment cannot be allowed in the grounds of appeal or writ, once disposed #indianlaws

Dec
1
2015


The Supreme Court held that when there does not exist any ground of challenge on merits in the writ petition High Court could not have adverted to it. If a party is allowed to seek amendment in the grounds of appeal or writ petition after its disposal, it can lead to abuse of process of law, and the parties would not let the proceedings come to an end. 



Tags: 

Retirement benefits cannot be denied in a case of Voluntary Retirement #indianlaws

Dec
1
2015


The Supreme Court held that the Appellant ought not to be deprived of pension benefits merely because he styled his termination of services as “resignation” or because there was no provision to retire voluntarily at that time. The commendable objective of the Pension Rule is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates to palliate the differences between the two and reconcile them as far as possible. The State being a model employer should construe the provisions of a beneficial legislation in a way that extends the benefit to its employees, instead of curtailing it.

 



Tags: 

Wife does not cease to be “Aggreived person” u/s 12 of DV Act, after a decree of judicial seperation #indianlaws

Dec
1
2015


In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. As long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. The Supreme Court held that a wife after having been judicially separated does not cease to be an “aggrieved person”.




Right to maintenance of Hindu widow not a mere formality #indianlaws

Nov
20
2015


Supreme Court has held that, in whatever form a limited interest is created in favour of a Hindu widow, having a pre-existing right of maintenance, the said rights become an absolute right by the operation of Section 14(1) of the Hindu Succession Act.

The Supreme Court while disposing the present issue made following observations on settled legal position under the Hindu Law:

  • Husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled to a right to be maintained out of such properties.
  • Claim of Hindu widow to be maintained is not a mere formality which is to be exercised as a matter of concession, grace or gratis but is a valuable, spiritual and moral right.
  • The right of a widow to be maintained, although does not create a charge on the property of her husband but certainly the widow can enforce her right by moving the Court and for passing a decree for maintenance by creating a charge.



Hindu Succession (Amendment) Act, 2005 prospective in effect #indianlaws

Nov
20
2015


An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. • The main provision is not retrospective in any manner. • Rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 • Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected.




In The Case Of Composite Negligence Claimant Entitled To Sue Both Or Any One Of The Joint Tort Feasors #indianlaws

Oct
31
2015


In case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the Court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage.




Demand Of Illegal Gratification Also To Be Proved While Constituting Offence Of Corrupt Practices #indianlaws

Oct
31
2015


The legal position with regard to Section 7 of the Prevention of Corruption Act is settled that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under the provision, since demand of illegal gratification is sine-qua-non to constitute the said offence.




Expression “Fact Discovered” In S.27 Of Evidence Act Also Includes Mental Fact Besides Physical Or Material Fact #indianlaws

Oct
31
2015


The expression “fact discovered” in Section 27 of the Evdence Act is not restricted to a physical or material fact which can be perceived by the senses. It does include a mental fact. The information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability.




Liability Of Insurer Continues Notwithstanding The Contract Of Transfer Of Vehicle #indianlaws

Oct
31
2015


Liability of insurer continues notwithstanding the contract of transfer of vehicle, such contractual liability cannot be said to be excluded by virtue of second proviso to Section 147(1) of the Motor Vehicles Act of 1988. Hire purchase agreement, an agreement for lease or an agreement for hypothecation are covered under Section 2(30) of the Act of 1988. A person in possession is considered to be an owner of the vehicle under such agreements. In case such contractual liability is excluded then anomalous results would occur and financer under hire purchase agreement would be held liable and so on. An agreement for lease on hire cannot be said to be contract envisaged for exclusion under contractual liability in second proviso to Section 147(1) of the Act of 1988.




An Unstamped Instrument Is Not Admissible In Evidence Even For Collateral Purpose #indianlaws

Oct
31
2015


In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. 




Courts not to appoint a substitute arbitrator only in cases of clear prohibition in the Agreement #indianlaws

Oct
31
2015


Whenever parties agree for arbitration and even name a specific arbitrator with no specific provision for appointment of another arbitrator on the recusal/withdrawal of the said arbitrator, the said omission is made up by Section 15(2) of the Act and unless arbitration agreement between the parties provide a categorical prohibition or debarment in resolving a question or dispute or difference between the parties by a substitute arbitrator in case of death or the named arbitrator or non-availability of the said arbitrator, Courts have the power to appoint substitute arbitrator, as provided under Section 15(2) of the Arbitration Act








© 2010-15