Legal Reference Library

In Namboothiri Trust Vs. Government, a student secures admission in a college, completes the first year, applies to the University for inter-college transfer and secures it; the college compels the student to pay liquidated damages for the loss of fee it suffers because of the student’s leaving the college mid-course. The Hon'ble Kerala High Court held that the college is justified in demanding and collecting the liquidated damages from the student.

In Sankara Narayanan, President and Chief Operating Officer, Asianet Satellite Communications Limited Vs. Subbiah IAS, the Hon'ble Kerala High Court on deciding whether Final Report filed by the Investigation Officer can be substituted by another Final Report under Section 173 of Criminal Procedure Code, 1973 held that court below wanted to get the Final Report substituted by another Final Report, which course is not contemplated under any of the provisions contained in the Code of Criminal Procedure. This is a case wherein the Final Report was not returned for curing defects, or for proper presentation. The court below “remitted the final report” which is unknown to legal procedure.

In Kali Ammal Vs. Valliyammal, the Hon'ble Kerala High Court, while referring to the judgment of the Hon'ble Supreme Court in Uttam v. Saubhag Singh and others, (2016), held that a person could have claimed a right by birth only in respect of ancestral property in the hands of his father and the right claimable was only per stripes – No coparcener could have ever claimed a right by birth over the entire joint family properties on per capita basis.  The Hon'ble court also explained that :- Rights of coparceners can be enlisted as follows: (1) Right by birth (2) Right by survivorship (3) Right to partition (4) Right to joint possession and enjoyment (5) Right of alienation (6) Right to make selfacquisitions (7) Right to restrain unauthorised acts (8) Right to accounts

In Bihar Rajya Bhumi Vikas Bank Vs. State of Bihar, the following questions were raised before the Hon'ble Patna High Court :- i) If the principal civil Court is a tribunal, whether a writ of certiorari can be issued and if so, under what circumstances? ii) Whether the provisions of Section 34(5) are mandatory or directory? iii) Whether, while exercising jurisdiction under Section 34 of the Arbitration and Conciliation Act, 1996, the principal civil Court acts as a Civil Court of ordinary jurisdiction or as a mere Court or as a tribunal? And the Hon'ble court held that :- a) Principal civil court, while exercising powers under Section 34 of the Arbitration and Conciliation Act, 1996, is not a Court of civil judicature; rather, it only a tribunal with the trappings of Court. b) Arbitration and Conciliation Act, 1996 – Section 34 (5) – The notice, as prescribed by Section 34 of the 1996 Act, is mandatory before proceeding with the filing of an application under Sectio

In Dr. Jitendra Gupta Vs. State of Bihar, the hon'ble Patna High Court held that In India, the courts would not, ordinarily, quash a criminal proceeding merely because of the reason that at the end of the trial, conviction of the person, facing the trial, appears impossible on account of insufficiency of material. This restriction is, however, not a restriction of universal application. Hence, in a given case, it is possible to quash a criminal proceeding if, it is, on the basis of the materials available, reasonable to reach a conclusion that at the end of the trial, the accused would have to be acquitted.

In Oil India Limited vs Essar Oil Limited, the Hon'ble Delhi High Court while quashing the appeal of Oil India to set aside the arbitration award opined that mere delay by the arbitral tribunal to pronounce its award is no ground to set it aside, the Delhi High Court stated, dismissing an appeal of Oil India Ltd (OIL) against an award by a three-member panel in favour of Essar Oil Ltd. The high court said a party can raise the issue only if it suffered prejudice by the delay. In this case, there was a delay of three years, but OIL could not demand quashing of the award as it had failed to assert its right under the Arbitration and Conciliation Act.

If the defaulting borrowers are given an opportunity to settle the dues according to an existing policy, it can not be changed later to their disadvantage, the Supreme Court ruled in the case, Devidayal Castings Ltd vs Haryana Financial Corporation. In this case, two borrowing firms did not repay the loans and therefore they were declared non-performing assets. In 2005, the corporation promulgated a policy whereby borrowers were given an option to settle their dues on the basis of the principal amount of the out standing in the loan accounts as on the date on which the accounts were de clared as NPA. The two firms were given the offer and asked to de posit 10 per cent of the dues as precondition for consideration of their cases. The borrowers accepted the offer. However, in 2015, the corporation changed the policy and according to the new one, where the value of the securities was more than the settlement amount, the corporation should resort to the sale of the secured prop er ties

The Supreme Court in Nagarpalika Thakurdwara vs. Khalil Ahmed & Ors, has held that, provisions of Section 102 of the Civil Procedure Code cannot be invoked if the subject matter of the suit is anything other than recovery of money or something more than recovery of money. Section 102 CPC states that no second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.  In the instant case, the municipality had filed a suit to recover only a sum of Rs.11, 006.07 by way of tax from the respondents. The High Court dismissed the second appeal invoking Section 102 CPC. On Appeal, the Bench comprising Justice Anil R. Dave and Justice L. Nageswara Rao observed that the instant suit was not only for recovery of money, but it was for a declaration and permanent injunction. The Court also noted that the issue with regard to location of the properties and whether the properties were situated within the muni

In Saroj Agarwalla (Dead) Thr. LR Abhishek Agrawalla Vs. Yasheel Jain, the Hon'ble Supreme Court held that held that mere receipt of some benefits under the Will cannot confer a caveatable interest in a third party unless he claims interest in the estate of the deceased otherwise than by way of Will sought to be probated. But the conclusions of the Single Judge were upheld on the basis of claim of Malati that she was widow of the testator. The Division Bench came to hold that the issue whether Malati is really a lawful widow of the testator or not cannot be conclusively decided in the probate proceedings but once prima facie materials support her claim, the application filed for discharge of her caveat deserves dismissal. This view is founded on the reason furnished by Division Bench by pointing out that a judgment in the probate proceedings is a judgment in rem and, therefore, a person establishing prima facie interest in the estate of the testator should be permitted to maintain

The Supreme Court in Anurag Kumar Singh & Ors. Vs. State of Uttarakhand, has observed that courts, in exercise of judicial discretion, cannot give any direction contrary to the statute or rules made there under and it is to be exercised only when there are two or more possible lawful solutions. The Bench comprising Justice Shiva Kirti Singh and Justice L. Nageswara Rao made this observation while upholding a judgment of High Court of Uttarakhand, wherein it had issued a direction to restrict the selection of assistant prosecuting officers only to the number of posts that were advertised. The Bench, observing that the aspirants who participated in the selection, which was initially for 38 posts and later increased to 74 posts, could not be appointed due to the judgment of the High Court which directed the selection to be only for 38 posts, said: “In view of there being no fault on the part of the appellants, we examined whether we could exercise our judicial discretion to direct

The Supreme Court in Shyam Pal vs. Dayawati Besoya, has reiterated that courts can exercise discretion under Section 427 of the Indian Penal Code to the benefit of prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The Bench comprising Justice Dipak Mishra and Justice Amitava Roy reiterated the dictum laid down in V.K. Bansal vs. State of Haryana and Another and a recent decision in Benson vs. State of Kerala The court also observed that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same. In the facts of the case, the court ordered that substantive sentences of 10-month simple imprisonment awarded to the appellant for his conviction under Section 138 of the Negotiable Instruments Act in the two complaint cases would run concurrently. “In arriving at t

The Supreme Court in Ashok Kumar vs. State of Bihar, has reiterated that the candidates who failed to raise any objection to a selection process were estopped from turning around and challenging the selection once they were declared unsuccessful. Selections made for promotion from Class IV posts to Class III posts in the district court of Muzaffarpur were quashed by a single bench of the Patna High Court on a writ petition by several unsuccessful candidates. The contention of the unsuccessful candidates was that the appointment process was vitiated, since under the relevant rules, the written test was required to carry 85 marks and the interview, 15 marks. The division bench set aside the single bench order and the candidates approached the Supreme Court. A three-judge bench comprising Chief Justice of India TS Thakur, Justice A M Khanwilkar and Justice Dr DY Chandrachud, referring to various case laws regarding the subject, observed that the division bench cannot held to be in error i

The Supreme Court in Satya Pal Anand vs. State of M.P, has held that once the document is registered, it is not open to any authority, under the Registration Act, 1908, to cancel the registration. In the instant case, an application was moved by a person before the Sub-Registrar (Registration) calling upon him to cancel the registration of extinguishment deed executed by the Society cancelling an allotment of plot.  Aggrieved by rejection of his application, on the ground that Sub Registrar has no jurisdiction to cancel the registration of a registered document in question, he approached Inspector General (Registration), but in vain. The high court, on his writ petition, held that, since the Registering Officer registered the document presented to him for registration, his function is exhausted and he would then become functus officio and no power to impound the document under Section 33 of the Act. This decision by the high court was assailed before the apex court. The apex c

The Supreme Court, in State of Punjab vs. Jagjit Singh has held that temporary employees would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post. Justice Jagdish Singh Khehar and Justice S.A. Bobde held that the principle of ‘equal pay for equal work’ would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. The Bench was hearing an appeal against the High Court order which had held that temporary employees are not entitled to the minimum of the pay-scale, as was being paid to similarly placed regular employees. India is a signatory to the above covenant, having ratified the same on 10.4.1979. There is no escape from the above obligation, in view of different provisions of the Constitution referred to above, and in

Summons; Sweety Gupta Vs. Neety Gupta [Delhi High Court, 25-10-2016] Contents Summons 17. Procedure when defendant refuses to accept service, or cannot be found 18. Endorsement of time and manner of service 6. Procedure when only plaintiff appears 13. Setting aside decree ex parte against defendant Sections 101 and 103 of the Indian Evidence Act, 1872 101. Burden of proof 103. Burden of proof as to particular fact Jagat Ram Khullar and Anr. v. Battu Mal, 1976 RCJ 94 Shiv Dutt Singh v. Ram Dass, AIR 1980 All 280 Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani, (1989) 2 SCC 602 Basant Singh and Anr. v. Roman Catholic Mission, 2002 (7) SCC 531 Section 27 of the General Clauses Act, 1897 Civil Procedure Code, 1908 – Order 5 Rule 17 & 18 – Endorsement of the process server / postman – If no evidence is given with regard to service of summons, the fact that the postman or the process server reported refusal/non acceptance of the service would have to be acc

The Supreme Court in Harbeer Singh Vs. Sheeshpal, has observed that delay in recording of statements of the prosecution witnesses under Section 161 CrPC., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. A bench comprising Justice Pinaki Chandra Ghose and Justice Amitava Roy made this observation while upholding a Rajasthan High Court judgment, which had acquitted the accused in a murder case. Referring to Ganesh Bhavan Patel Vs. State Of Maharashtra, the court observed that though it is a well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony, but if those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, and even then the delay has occurred, it would cast a doubt upon the prosecution case. T

The Supreme Court in Yogesh Singh Vs. Mahabeer Singh, has held that the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts and the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful considerations. A bench comprising Justice Pinaki Chandra Ghose and Justice Amitava Roy set aside an Allahabad High Court judgment which had acquitted the accused in a murder case and restored the conviction recorded by the trial court. Referring to State of U.P. vs. Krishna Gopal and Anr. and State of Punjab Vs. Jagir Singh, the court observed: “It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts.” The bench observed that the accused was not per se entitled for acquittal on the ground of non

High Court of Delhi National Highway Authority of India v. Hindustan Steelworks Construction Limited MANU/DE/2834/2016 19.10.2016 Arbitration Once the parties have approached certain court for relief under Arbitration Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings Present application filed by National Highways Authority of India (NHAI) seeking to explain delay of 296 days in filing Petition under Section 34 of Arbitration & Conciliation Act, 1996 (the Act) to challenge Award dated 24th February, 2015 of Arbitral Tribunal (AT) in disputes between NHAI and Respondent, Hindustan Steelworks Construction Ltd + SIPL (HSCL) arising out of a contract dated 18th July, 2005 for construction of a four lane highway. It is stated by NHAI that it received a copy of the Award dated 24th February, 2015 only on 27th February, 2015 by courier and that was the date from which the period of limitation for the purpo

High Court of Rajasthan Megha Insulation Private Limited and Ors. v. J.K. White Cement Work Gotan MANU/RH/0937/2016 17.10.2016 Civil Unless proved contrary, service of notices sent properly addressed, prepaid and by registered post would be deemed to be proper service. Instant appeal filed by Appellants aggrieved against order passed by Additional District Judge, whereby, application filed by Appellants under Order IX, Rule 13 CPC seeking setting aside of ex parte decree has been dismissed. Appellant claimed that, summons sent through registered post acknowledgment due were not served on Appellants and, in absence of service of summons, suit could not have proceeded and be decreed ex parte. Provisions of Order V, Rule 9 CPC which were inserted vide amendment in year 1999 and were again substituted in the year 2002, specifically provides that service of summons may be made by delivering a copy by registered post acknowledgment due addressed to the defendant provided that se

The Supreme Court with ‘immense pain’ has asked the high courts to keep in mind the established doctrine of restraint, while issuing writ of mandamus in tender/bidding matters. The court also observed that a writ court cannot sit in appeal over the financial consultant’s assessment. The bench comprising Justice Dipak Mishra and Justice Shiva Kirti Singh made this observation in an appeal (TANGEDCO vs. CSEPDI–Trishe Consortium) against a high court order which, on a writ petition filed by a bidder, directed the owners to consider representations submitted by the bidder and to take certain aspects into consideration. The bench observed: “If the courts would exercise power of judicial review in such a manner, it is most likely to cause confusion and also bring jeopardy in public interest. An aggrieved party can approach the court at the appropriate stage, not when the bids are being considered.” The court added that once the price bid was opened, a bidder could not have submitted represen

The Gujarat High Court has dismissed the writ application of a former branch manager of a Gramin Bank in Manishkumar Arjanbhai Patel v. Saurashtra Gramin Bank & two ors., who was removed from his service on the account of charges of misconduct and negligence in discharging his duties, stating that a delay, by itself, would not vitiate departmental inquiry as sometimes charges may be so serious that the issue of delay pales into insignificance. The decision taken by the court through Justice JB Pardiwala was arrived at after careful examination of the facts and after being assured that the procedure of inquiry was carried out in accordance with law. In this case, 21 charges were alleged against petitioner MA Patel while he was serving as the branch manager of Gramin Bank, Jamnagar. A departmental inquiry was instituted against him the result of which was that all the charges were established by the inquiry officer. The disciplinary authority, i.e. chairman, Jamnagar Rajkot Gra

The Supreme Court in Rajender Bansal & Ors. Vs. Bhuru (D), has held that a civil court would not cease to have jurisdiction to try a pending suit of eviction if the suit property came under the notified area during pendency of the suit. The bench comprising Justice AK Sikri and Justice NV Ramana summarised the following principles laid down in several decisions like Mansoor Khan Vs. Moti Ram and Atma Ram Mittal Vs. Ishwar Singh Punia: * Rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the law applicable on the date of filing of the suit will continue to apply until suit is disposed of or adjudicated. *If during the pendency of the suit, the Rent Act becomes applicable to the premises in question, that would be of no consequence and it would not take away the jurisdiction of civil court to dispose of a suit validly instituted. *In order to oust the jurisdiction of civil court, there must be a specific provision in the Act taki

The Delhi High Court in Mange Ram Jain vs Jatinder Kumar Jain has ruled that temporary disconnection of water supply does not constitute ‘mischief’. The court stated that the act does not confirm to the essential provisions defining the offence of ‘mischief’ under Section 425 IPC. The single judge bench of Justice Mukta Gupta quashed summons issued to the respondents and stated that, ‘one of the essential ingredients of the offence of “mischief” is ‘wrongful loss or damage to any person by causing destruction of any property or making a change which diminishes its value.’ The dispute between the parties was with regard to the dues towards the complainant which was an admitted fact and even on an erroneous calculation thereof temporary disconnection of the supply would not cause either destruction of the property or diminishing its value’. The conflict goes back to the dispute over payment of dues towards home loan in the Atma Vallabh Cooperative Group Housing Society between the involv

A Full Bench of Kerala High Court in Firos Ali v. State of Kerala, has issued guidelines pertaining to filing of subsequent bail applications for same crime. The Bench comprising of Chief Justice Mohan M. Shantanagoudar, Justice Thottathil B. Radhakrishnan and Justice K.T. Sankaran clarified a few doubts that were raised in the principle that was laid down in a previous Supreme Court judgment in Shahzad Hasan Khan v. Ishtiaq Hasan Khan and followed through in subsequent cases. According to the result of the successive apex court judgments, the judicial discipline requires that if successive bail applications are filed by the same accused in the same crime, the matter must be placed before the same judge who disposed of the earlier application, if he is available for orders, in order to 1.    Prevent abuse of the process of court; 2.   To prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking; 3.    To save time of the

Directing the State police to “learn a lesson” from the reported murder of a 24-year-old woman from Tirunelveli due to non registration of a complaint of abduction lodged by her father in September last, the Madras High Court Bench here on Thursday stressed the need for registering First Information Reports (FIR) irrespective of territorial jurisdiction. A Division Bench of Justices S. Nagamuthu and M.V. Muralidaran passed the order on a habeas corpus petition filed by C. Gnanaiah (50) of Sankarankoil Taluk in Tirunelveli district on August 10 this year seeking a direction to Tirunelveli police to save his daughter G. Anbu Stella, a lab technician, from the clutches of a Pastor Millan (50) of Tharuvai in Tirunelveli district. Enquiries made by the judges with R. Thirugnanam, Commissioner of Police, Tirunelveli city, and V. Vikraman, Superintendent of Police, Tirunelveli, revealed that the petitioner had lodged a complaint with the office of Tirunelveli Deputy Inspector General of P

The Supreme Court in Cheviti Venkanna Yadav vs. State of Telangana and Ors, has upheld the constitutional validity of sub-section (3) of Section 5 of the Andhra Pradesh (Agricultural Produce and Livestock) Markets (Amendment) Act, 2015. Section 5 of the Andhra Pradesh (Agricultural Produce and Livestock) Markets (Amendment) Act, whereby the term of the market committee was reduced from three years to one year by giving retrospective effect in the Amendment Act, was under challenge before the Andhra Pradesh High Court. Aggrieved by the decision of division bench of the high court which had upheld the provisions, an appeal was preferred before the apex court. The court observed that after the legislature came into existence, it has the competence to enact any law retrospectively or prospectively within the constitutional parameters (M/s. Rattan Lal and Co. and another etc. v. The Assessing Authority, Patiala and another). The bench also added that the legislature has the power to enac

The Supreme Court in Nitu vs. Sheela Rani, has held that family pension does not form part of the estate of the deceased and it is to be given under the provisions of the relevant pension scheme. The high court, in this case, had held that the mother of deceased employee was entitled to the succession certificate in view of the provisions of Section 8 of the Hindu Succession Act, as she was also one of the heirs to the deceased employee. The widow of the deceased approached the apex court against this order, which held that the mother should also get 50 per cent share in the pension. Article referred: http://www.livelaw.in/family-pension-not-part-anyones-estate-disposed-will-sc/

The Supreme Court in Gulshera Khanam vs. Aftab Ahmad, has held that any woman, married or unmarried, who has a legal right of residence in the building, is also included in the definition of “family” in relation to landlord, and is entitled to seek eviction of the tenant from such building for her bonafide need. The Bench comprising Justice J. Chelameswar and Justice Abhay Manohar Sapre set aside the Allahabad High Court judgment that had held that Section 3(g)(iii) of the of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, includes only an “unmarried daughter” and that the landlord cannot seek eviction for the need of her married daughter.  The court interpreted the provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which defines “family” in relation to landlord or tenant of a building to include (1) spouse (2) male lineal descendants (3) such parents, grandparents, unmarried or widowed or divorced or ju

In FERNAS CONSTRUCTION COMPANY INC VS. GUJARAT STATE PETRONET LTD. , the Hon'ble Gujarat High Court held that any existence of dispute between the parties to the contract cannot be a ground to restrain from evoking the bank guarantee.

IN THE SUPREME COURT OF INDIA Civil Appeal Nos. 8245-8246 of 2016 Decided On: 04.10.2016 Appellants: A. Ayyasamy Vs. Respondent: A. Paramasivam and Ors. Case Note: Arbitration - Agreement - Maintainability of suit - Applicability of precedent - Section 8 of Arbitration and Conciliation Act, 1996 - Parties had entered into deed of partnership containing arbitration Clause - Respondents filed civil suit - Appellant moved application under Section 8 of Act, 1996 raising objection to maintainability of suit in view of arbitration agreement between parties - Trial Court dismissed application, relying upon judgment in N. Radhakrishnan v. Maestro Engineers and Ors. - Appellant preferred petition before High Court - High Court had also chosen to go by dicta laid down in N. Radhakrishnan - Hence, present appeal - Whether view of High Court in following dicta laid down in case of N. Radhakrishnan was correct or not - Whether dispute raised by Respondents in suit was incapable of sett