No copyright subsist in a title of work #indianlaws

Oct
31
2015


A title of a work has been considered to be not fit to be the subject of copyright law. A title by itself is in the nature of a name of a work and is not complete by itself, without the work. The title in question cannot therefore be considered to be a ‘literary work’ and, hence, no copyright can be said to subsist in it, vide Section 13 of the Copyright Act.




While admitting public document in evidence its probative value has to be checked #indianlaws

Oct
11
2015


A public document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. Even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved.  So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value.




Assignor does not lose right to continue appeal because of assignment during the pendency of appeal #indianlaws

Oct
11
2015


Merely by transfer of the property during the pendency of the suit or the appeal, plaintiff or appellant, as the case may be, ordinarily has a right to continue the appeal. It is, at the option of the assignee to move an application for impleadment.




Specific performance may not be granted where the terms of contract give unfair advantage to one party #indianlaws

Oct
11
2015


Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract though not voidable, gives the plaintiff an unfair advantage over the defendant, the decree of specific performance need not be passed.

 




Grant of Leave to Defend may be granted where the question is relating to Applicability of Order 37 #indianlaws

Oct
11
2015


Where the applicability of Order 37 itself is in question, grant of leave to defend may be permissible. The Court before passing a decree is entitled to take into consideration the consequences therefor. The Courts dealing with summary trials should act very carefully taking note of the interests of both the parties. Merely on the ground that the defendant may resort to prolonged litigation by putting forth untenable and frivolous defences, grant of leave to defend cannot be declined.

 




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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Mere change of counsel cannot be a ground to recall witnesses #indianlaws

Sep
24
2015


 As per both, Section 311 CrPC and Section 138 Evidence Act for the purposes of criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. 




Notice under Section 138 is required to be given to the ‘drawer’ of the cheque and not to any other person#indianlaws

Sep
24
2015


Notice under Section 138 N I Act is required to be given to the ‘drawer’ of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. No other person is contemplated by Section 138 as being entitled to be issued such notice.

 




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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Employee holding the post requiring trust and confidence is expected to behave with discipline and loyalty #indianlaws

Sep
15
2015


Court should not adopt a lenient approach when employee holding a position of trust acts contrary to rules and such misconduct causes financial losses to the employer



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Principles to be followed by Courts while granting/ rejecting Anticipatory Bails #indianlaws

Sep
14
2015


The expression “may, if it thinks fit” occurring in Section 438(1) of the Code of Criminal Procedure (Code), gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case”.




Reliance on “Last Seen Theory” not safe in a case based on circumstantial evidence when time gap is long

Sep
14
2015


In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. 




Evidence recorded before Criminal Courts not conclusive for granting decree of specific performance

Sep
14
2015


Where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. 




Court to act cautiously while pronouncing judgment in a case where opposite party (Defendant) fails to file Written Statement#indianlaws

Sep
6
2015


The Supreme Court has ruled that the Court, at no stage, can act blindly or mechanically. While enabling the Court to pronounce judgment in a situation where no Written Statement is filed by the defendant, the Court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the Court can either pronounce judgment against the defendant or pass such order as it may think fit. In a situation where no Written Statement has been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission the Court can conveniently pass a judgment against the defendant who has not filed the Written Statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub- rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8. In judicial proceedings, there cannot be arbitrary orders. A Judge cannot merely say "Suit decreed" or "Suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other.




Punishments should be proportionate to the nature and gravity of the offences#indianlaws

Sep
6
2015


In a writ before the Supreme Court,a declaration was sought that Section 364A inserted in the Indian Penal Code (IPC) by Act 42 of 1993 was ultra vires the Constitution to the extent of prescribing death sentence for anyone found guilty. The Apex Court held that just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric. In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence. The Court answered that the provision of Section 364A was accordingly held to be constitutional, holding that assumed hypothetical situations cannot be brought to bear upon the vires of Section 364A. S




Apex Court interprets the term ‘First Learns’ under Limitation Act#indianlaws

Sep
6
2015


The Hon’ble Supreme Court has interpreted the meaning of the term “first learns” as provided under Article 91(a) of the Limitation Act, 1963 and held that the provision of Article 91 (a) of the Limitation Act demands two things: First, knowledge on the part of the plaintiff; and second, the relevant fact is within his peculiar knowledge. The term “first learns” places a burden of knowledge which is rather specific in nature. Thus, the knowledge must be of the identity of a specific person in whose possession the bonds are and that he acquired the possession of the said bonds under an arrangement, which in law would constitute wrongful conversion.




State barred from setting aside acquisition upon its subsequent failure in carrying out compliance

Aug
23
2015


State barred from setting aside acquisition upon its subsequent failure in carrying out compliance with Section 11A 1894 LA Act




Writ Court may entertain disputes arising out of contract in exceptional circumstances #indianlaws

Aug
23
2015


A While entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case has discretion to entertain or not to entertain a writ petition.




Mere admission of tenancy does not necessarily mean passing of a decree on admissions #indianlaws

Aug
23
2015


Judgment on admission is not a matter of right and rather is a matter of discretion of the Court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order XII Rule 6 CPC.




The charges applicable on Landing & Parking Charges by Airport Authority Of India cannot be treated as ‘Rent’ under Section 194-I of the Income Tax Act#indianlaws

Aug
12
2015


The Supreme Court has held that the charges which are fixed by the AAI for landing and take-off services as well as for parking of aircrafts are not for the 'use of the land'. These services include providing of air traffic services, ground safety services, aeronautical communication facilities, installation and maintenance of navigational aids and meteorological services at the airport. Further there are various international protocols which mandate all such authorities manning and managing these airports to construct the airports of desired standards which are stipulated in the protocols. The charges thus were not for use of land per se and therefore cannot be treated as 'rent' within the meaning of Section 194-I of the Act.




Appellate Tribunal has the jurisdiction to condone the delay in filing an appeal under Section 18 (1) of the SARFAESI Act#indianlaws

Aug
12
2015


The Supreme Court held that delay in filing an appeal under Section 18 (1) of the SARFAESI Act can be condoned by the Appellate Tribunal under proviso to Section 20 (3) of the RDB Act read with Section 18 (2) of the SARFAESI Act. The contrary view taken by the Madhya Pradesh High Court was overruled.




Arbitrator’s decision is generally binding upon the parties as it is a tribunal selected by the Parties#indianlaws

Aug
12
2015


The Hon’ble Supreme Court has held that arbitrator's adjudication is generally considered binding between the parties for he is a tribunal selected by the parties and the power of the court to set aside the award is restricted to cases set out in section 30 of the Arbitration Act.




Official Liquidator cannot adjudicate claim of a Statutory Corporation# indianlaws

Aug
12
2015


 The Supreme Court has held that the Official Liquidator has no jurisdiction to ascertain or adjudicate the claim of a secured creditor who has been permitted by the Company Judge to stand outside the liquidation proceeding with liberty to pursue its remedy as per statutory rights available under the State Financial Corporations Act 1959, subject only to the conditions imposed by the court. The rights of a financial corporation available under the provisions of the SFC Act by the amendment of 1985 in the Companies Act,  is for a  limited purpose of securing the right of the workers but such limited impediment to their rights under the SFC Act will not alter the status of State financial corporations as secured creditors and they will not be required to prove their debt which they are entitled to realize under the provisions of the SFC Act subject to right of the workers to receive their wages also as secured creditors on pari passu basis. 




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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Complaint alleging breach of trust and cheating must convincingly prove entrustment and deception #indianlaws

Aug
1
2015


To constitute an offence punishable under Section 406 IPC, the essential ingredient is the “entrustment” of the property.  It is only after entrustment is shown, it can be said that there was criminal breach of trust. To constitute an offence punishable under Section 409 IPC, apart from entrustment, it is an essential requirement that it should be shown that the accused has acted in the capacity of a public servant, banker, merchant, factor, broker, attorney or agent.




Amendment in Criminal Complaint is permissible where Court is yet to take cognizance of the offence(s) complained #indianlaws

Aug
1
2015


Amendment in Criminal Complaint is permissible where Court is yet to take cognizance of the offence(s) complained. A Magistrate takes cognizance of an offence when he decides to proceed against the person accused of having committed that offence and not at the time when the Magistrate is just informed either by complainant by filing the complaint or by the police report about the commission of an offence.




Under Section 52 of the Transfer of Property Act, 1882, the 'lis' continues so long as a final decree or order has not been obtained from the Court #indianlaws

Aug
1
2015


Under Section 52 of the Transfer of Property Act, 1882, the 'lis' continues so long as a final decree or order has not been obtained from the Court. Even after the dismissal of a suit a purchaser is subject to "lis pendens", if an appeal is afterwards filed.' If after the dismissal of a suit and before an appeal is presented, the 'lis' continues so as to prevent the Defendant from transferring the property to the prejudice of the Plaintiff.




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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Director signing cheque in personal capacity is liable in a cheque dishonor case#indianlaws

Jul
23
2015


Where the cheque is drawn by the employee of the appellant company on his personal account, even if it be for discharging dues of the appellant-company and its Directors, the appellant-company and its Directors cannot be made liable under Section 138. This is so that the Section itself makes the drawer liable and no other person. 




An unwed mother of the child can claim herself to be guardian of the child without notifying father #indianlaws

Jul
23
2015


Whether an unwed mother can claim herself to be the guardian of the child without notifying father, was the subject matter for consideration before the Apex Court. The court while recognizing that the father’s right to be involved in his child’s life may be taken away if Section 11 of the Guardians and Wards Act, 1890 (the Act) is read in such a manner that he is not given notice, but given his lack of involvement in the child’s life, held that there is no reason to prioritize his rights over those of the mother or her child. 








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