In cheque dishonor cases there exists a rebuttable presumption of a legally enforceable debt to be proved by Accused

Nov
24
2014


Presumption mandated by Section 139 of the Act includes a presumption that there exists a legally enforceable debt or liability and that is a rebuttable presumption.




Provisions of SICA, particularly Section 22 prevails over the provisions for recovery of debts in the RDDB Act

Nov
24
2014


SICA aims to revive and rehabilitate not all sick companies but those in the schedule to the IDRA, presumably vital to the economy of the nation




Impleadment of a subsequent Transferee in a pending suit is not a matter of right

Nov
11
2014


The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party.



Tags: 

National Tax Tribunals Act declared unconstitutional

Nov
11
2014


Sections 5, 6, 7, 8 and 13 of the NTT Act were held to be unconstitutional, they since constituting the structure of the NTT Act and without these provisions the remaining provisions becoming ineffective and inconsequential, the entire enactment was held to be declared as unconstitutional.




Party while seeking relief under Specific Relief Act must prove and establish the necessary ingredients of claim

Nov
11
2014


Section 20 of the Specific Relief Act specifically provides that Court’s discretion to grant decree of specific performance is discretionary but not arbitrary and this discretion must be exercised in accordance with sound and reasonable judicial principles




Tests to ascertain the genuineness of the Will

Nov
3
2014


The Apex Court in the matter namely H. Venkatachala Iyengar vs. B.N. Thimmajamma & Ors. [AIR 1959 SC 443]   dealt with an interesting and important question i.e. what is the true legal position in the matter of proof of wills?



Tags: 

Mere proof of “unfair trade practice” is not enough to seek punitive damages unless causing of loss is also established

Nov
3
2014


Mere proof of “unfair trade practice” is not enough for claim or award of relief unless causing of loss is also established. Punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded.




Complaint under Section 138 N I Act against a Director may be quashed, if the High Court finds no specific allegations against the Directors.

Nov
3
2014


Where on an overall reading of the complaint under Section 138 N I Act, the High Court may quash the Complaint against the Director in the absence of more particularls about role of the Director in the Complaint.




Acquisition proceedings shall lapse under LA ACT 2013 even if proceedings were stayed by the Court #indianlaws

Nov
3
2014


As per Section 24 of the  L A ACT 2013 it is clear that Section 24(2) of the 2013 Act does not exclude any period during which the land acquisition proceeding might have remained stayed on account of stay or injunction granted by any court.




Complaint for dishonour of cheque could be filed through the Power of Attorney #indianlaws

Oct
10
2014


In the light of section 145 of NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act.




Application of doctrine of promissory estoppel against State #indianlaws

Sep
28
2014


 A party acting in reliance on a promise made by the Government if has altered his position, is entitled to enforce the promise against the Government, even though the promise is not in the form of a formal contract as required by Article 299 and that article does not militate against the applicability of the doctrine of promissory estoppel against the Government.



Tags: 

A decree for specific performance of an agreement to sell cannot be reversed on the ground of rise in price #indianlaws

Sep
28
2014


Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed. However, the court may take notice of the fact of increase in prices and can impose conditions of grant of compensation.

 

 




Arbitrator cannot parties to act on a substituted contract-same shall be illegal or erroneous #indianlaws

Sep
28
2014


When parties have arrived at a concluded contract and acted on the basis of those terms and conditions of the contract then substituting new terms in the contract by the Arbitrator or by the Court would be erroneous or illegal




How to prove Emails and other Electornic Records in Court #indianlaws

Sep
28
2014


Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act and these special provisions on evidence relating to electronic record would be governed by the procedure prescribed under Section 65B of the Evidence Act.




Pre-mature filing of complaint under Section 138 N I Act is liable to be dismissed #indianlaws

Sep
28
2014


 Any complaint before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is infact no complaint at all under law




Termination of tenancy under Section 106 TPA not necessary for State Rent Contol legislations #indianlaws

Sep
24
2014


The theory of double protection or additional protection has been  stretched too far and without a proper and due consideration of all its remifications.It was accordingly held that no notice to quit is necessary under Section 106 of the Transfer of Property Act in order to enable the landlord to get an order of eviction against the tenant.
 




Mere appointment of a contractor or employee does not Absolve Corporation from its statutory duties #indianlaws

Sep
24
2014


It was held by the Supreme Court held a Corpoation who grants the boating rights to contractor would continue to be liable to suprevise the boating activities and pay for the loss of life during boating.




Supreme Court not a Court within the meaning of Section 2(1)(e) of the Arbitration and Conciliation Act, 1996 #indianlaws

Sep
24
2014


Supreme Court under no circumstances to be considered as “Court” for the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an Arbitrator




Liability of the surety is co-extensive with that of the principal debtor #indianlaws

Sep
10
2014


It was held that if the composite decree is a decree which is both a personal decree as well as a mortgage decree, without any limitation on its execution, the decree-holder, in principle, cannot be forced to first exhaust the remedy by way of execution of the mortgage decree alone and told that only if the amount recovered is insufficient, he can be permitted to take recourse to the execution of the personal decree.



Tags: 

laws of pleading in complaint under Section 138 Negotiable Instruments Act #indianlaws

Sep
10
2014


It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.




Arbitrator cannot decide upon issues not arbitrable in a Contract of Arbitration

Sep
10
2014


It is  not open to the Arbitrator to arbitrate upon the disputes which in view of a specific clause in the contract to the effect of they been “excepted” issues. 




Disputes cannot be referred to an Arbitrator when there are serious allegations of fraud #indianlaws

Aug
30
2014


Section 8 of the Arbitration and Conciliation Act, 1996 (Act) provides for powers of the judicial authority/ Court to refer parties to arbitration where there is an agreement to this effect. There are number of judicial pronouncements to contend that when there is an express provision referring disputes to arbitration, the Civil Courts are bound to refer the matter to an Arbitrator. However, whether there would be any change or different interpretation when one of the Parties raise issues relating to misappropriation of funds and malpractices on the part of other party.



Tags: 

Cheque dishonoured due to Stop Payment instructions may or may not be covered under Section 138 of NI Act #indianlaws

Aug
30
2014


If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence Under Section 138 would not be made out.




Court not to substitute Arbitrator’s view by its own unless error apparent on the face of record #indianlaws

Aug
30
2014


In considering objections to the Award passed by an Arbitrator, the Court is not justified in reappraising the material on record and substituting its own view in place of Arbitrator's view.




Action of an Advocate duly authorised by his client similar to that of power-of-attorney acting on behalf of principal #indianlaws

Aug
21
2014


Counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (CPC) and such decree is perfectly valid.




Court while dealing with prayer of vacation of interim injunction cannot decide the main controversy in issue #indianlaws

Aug
21
2014


Court while dealing with prayer of vacation of interim injunction cannot decide the main controversy in issue




Court can deviate from agreed terms while appointing arbitrator in exceptional circumstances #indianlaws

Aug
21
2014


Even if the arbitration agreement specifically provides for any particular qualification(s) of an arbitrator the same would not denude the power of the Court acting under Section 11(6), in an appropriate case to depart therefrom.




Issue of complaint under Section 138 N I Act being barred by time has to be raised before the Trial Court #indianlaws

Aug
21
2014


High Court should consider the provisions of condonation of delay inserted as proviso to clause (b) of Section 142 of the NI Act before dismissing the complaint being barred by limitation




A hand written note intimating about dishonour of cheque satisfying all mandatory requirements is a valid legal notice #indianlaws

Aug
21
2014


Hand written note about dishonour of cheque can be considered a notice under Section 138




Constitutionality of a Parliamentary Act not always maintainable before Delhi merely because it is the seat of Union of India #indianlaws

Aug
11
2014


Passing of legislation by itself do not confer any such right to file a writ petition unless a cause of action arises therefor. A distinction between a legislation and executive action should be borne in mind while determining the said question








© 2010-15