In APO 64 OF 2022-CAL HC- Pensionary benefits should not be withheld for indefinite period when State has failed to conclude criminal proceedings within reasonable time frame: Calcutta HC asks Municipal Corporation to release pensionary benefits to employee subject to final decision in criminal proceeding
Justices Arijit Banerjee & Apurba Sinha Ray [25-11-2022]
Justices Arijit Banerjee & Apurba Sinha Ray [25-11-2022]
New Delhi, November 28, 2022: The Delhi High Court has clarified that Section 41(a) of the Specific Relief Act, 1963 bars injunction to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings
A Single-Judge bench of Justice Neena Bansal Krishna allowed the present application instituted under Order VII Rule 11 read with Section 151 Code of Civil Procedure preferred on behalf of the first defendant-National Insurance Co. Ltd., for rejection of the plaint.
The Bench was of the view that the claims of the plaintiff raised in the present suit, have already been adjudicated by a Competent Forum i.e in arbitration and the present suit cannot be permitted to continue to raise the same issues afresh.
It was submitted in the application that the plaintiff had filed a suit for Declaration, Mandatory and Prohibitory Injunction against the defendants, whereby the plaintiff had sought that the Letter of Repudiation dated November 19, 2015 issued by the first defendant rejecting the Insurance claim of the third Defendant and Statutory Surveyor Report dated August 19, 2014 of the Surveyor/ the second defendant be declared as wrong, invalid, erroneous, null and void.
After considering the submissions, the Court noted that under Order VII Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
It was further noted by the Court that a suit which is without any cause of action is as much as is frivolous, vexatious and meritless and has to be thrown out at the nascent stage since its continuation would only burden the already overburdened judicial infrastructure and will also result in harassment to the opposite party which has to face the rigmarole of full trial.
In the present case, the relief sought was not in respect of any declaration in regard to the legal character of the status but is purely in respect of the monetary claims which per se are not maintainable. The other relief sought by the plaintiff was Permanent Injunction against the third Defendant to restrain it from continuing with the Arbitration proceedings, the Bench noted.
“S.41(a) of Specific Relief Act, 1963 bars injunction to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings”, the Bench said while adding that on this ground itself, the relief of Permanent Injunction as claimed against the third Defendant was not maintainable.
The claims of the plaintiff raised in the present suit, have already been adjudicated by a Competent Forum i.e in arbitration and the present suit cannot be permitted to continue to raise the same issues afresh, the Court noted.
Thus, the reliefs claimed by the plaintiff in the present suit are not maintainable and no cause of action is disclosed in the suit. Moreover, this relief has already become infructuous as the arbitration proceedings have been concluded and the Award made on March 16, 2021,the Bench further remarked.
In the present case hence, there was no cause of action whatsoever which was disclosed in the suit, the Court noted while allowing the application under Order VII Rule 11 CPC.
In CWP No.10047 of 2016-PUNJ HC- Employee, who stands dismissed from service on account of criminal proceedings initiated against him, would be entitled to reinstatement if he stands acquitted and would also be entitled to all benefits for period he was out of service: P&H HC
Justice Jaishree Thakur [17-11-2022]
Justice Jaishree Thakur [17-11-2022]
Chandigarh, November 28, 2022: While dealing with a writ petition seeking the petitioner’s reinstatement in his service with all consequential benefits, the High Court of Punjab and Haryana has held that an employee, who stands dismissed from service on account of criminal proceedings initiated against him would be entitled to reinstatement if he stands acquitted, and would be entitled to all benefits for the period he was out of service.
The facts of the matter before the Bench of Justice Jaishree Thakur was such that the petitioner joined as a permanent employee in Punjab Police as a Constable in 1990. Five years later, he was selected for the promotion to Head Constable and his name was entered into the C-II list. An FIR was registered against the petitioner under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988.
In 2004, the petitioner was convicted and sentenced to undergo imprisonment for a period of five years with a fine of Rs.1000/- with a default clause. On the basis of conviction, the petitioner was dismissed from service via an order of the Senior Superintendent of Police, Kapurthala. Against this order, an appeal was filed and the same was allowed. The petitioner was acquitted of the charges framed against him by the Trial Court.
Thereafter, the petitioner was ordered to be reinstated back in service via the 2011 order of the Senior Superintendent of Police, Kapurthala (third respondent). The dismissal period from March 16, 2007, to October 05, 2007, was considered earned leave whereas the period from October 6, 2007, to November 2012 (when he was reinstated) was considered a non-duty period without pay.
The petitioner filed representations for giving all the benefits to him after being acquitted by the High Court, but to no avail. Thus, a writ petition was filed seeking a direction to be issued to release the salary of the petitioner for the period in which the petitioner remained dismissed from service till his reinstatement along with other benefits.
In response, the third respondent was directed to consider and decide the petitioner’s claim as set out in his representations, within a period of three months in accordance with the law. In compliance, the third respondent passed the third impugned order. Hence, the instant writ petition was filed.
Making a case for the petitioner’s reinstatement in his service with all consequential benefits, the petitioner's counsel submitted that as per Rule 16.3 of the Punjab Police Rules, 1934, after the judicial acquittal of the police officer, he was entitled to benefits as per Rule 7.3 of Punjab Civil Services Rules, Vol. 1, Part 1. He placed reliance on various judgments wherein it was held that an employee cannot be deprived of the benefits to back wages after his acquittal from the criminal cases.
On the other hand, the State counsel contended that the petitioner was acquitted by the Court by giving him the benefit of doubt instead of honourably acquitting him. He further added that as per the provision of Rule 16.2(2) of the Punjab Police Rules, 1934, any police official/officer convicted by the Criminal Court for more than one month, should not be kept in service and be dismissed/removed from the department.
The short question that arose for consideration of the Court was whether the petitioner could be denied his pay and allowances for the period in question i.e. from the date of his dismissal till the date of his reinstatement in service.
At the very outset, the Court made reference to Rule 7.3 of the Punjab Civil Services Rules, Vol. I, Part I, Chapter VII, to observe that in case a Government employee who is dismissed, removed, compulsorily retired or suspended, is reinstated upon having been fully exonerated, then he shall be given full pay and allowances to which he would have been entitled to, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be.
“An employee, who stands dismissed from service on account of criminal proceedings initiated against him, would be entitled to reinstatement if he stands acquitted, and would be entitled to all benefits for the period he was out of service”, the Court held.
Further, while referring to one of its earlier decisions, the Court reiterated that it is not fair and the rule of “No Work No Pay” is not applicable to cases where an employee, although willing to work, is kept away from work by the authorities for no fault of his. The normal rule of "No Work No Pay" is not applicable to such cases where the employee, although willing to work, is kept away from work by the authorities for no fault of his, the Court also observed.
While allowing the instant writ petition, the Court held that the petitioner was entitled to the relief as claimed in the petition with regard to the disputed period to be treated as a duty period with all consequential benefits.
“Let the arrears of salary etc. for the said period be released to the petitioner herein, within a period of three months from the date of receipt of a certified copy of this order, failing which, the amount due shall carry interest at the rate of 6% per annum till payment”, the Court held.
New Delhi, November 28, 2022: The purpose of the cheque return memo is to give the information of the holder of the cheque that his cheque on presentation could not be encashed due to the variety of reasons as mentioned in the cheque return memo and neither section 138 nor section 146 of the NI act has prescribed any particular form of such memo, the Delhi High Court has observed.
Justice Sudhir Kumar Jain dismissed the present petition instituted under section 482 Code of Criminal Procedure, 1973 for quashing the criminal complaint titled and the summoning order dated August 29, 2018 (impugned order) passed by the Trial Court.
The Single Judge bench was of the view that the grounds as taken by the petitioner to attack the impugned order were without any factual and legal basis. There was no infirmity or illegality in the impugned order. Hence, it was stated that the present petition was misconceived and it appeared that, it was filed to delay the proceedings of the case.
The second respondent/ complainant had filed a complaint under section 138 of the Negotiable Instrument Act, 1881 titled as Amrit Pal Singh Bedi V International Trenching Pvt. Ltd. & Ors. on the allegations that the first accused i.e. M/s International Trenching Pvt. Ltd. was engaged in the business of trenching/fibre optic laying and allied services.
The second accused and the third accused, namely, Sumit Bhasin werethe Directors of the first accused. The fourth accused namely, Summy Bhasin was handling the finances and accounts of the first accused. The petitioner and the accused no. 4 on behalf of the first accused approached the second respondent for availing the services for their business in upcoming projects and the second respondent had provided services from time to time and for which Rs.46, 60,000/- was agreed to be paid by the first accused to the second respondent on or before July 15, 2018.
The petitioner, the third accused and the fourth had failed to make the timely payment to the second respondent and thereafter, entered into a MoU dated, whereby the petitioner and the the third and fourth accused had agreed to pay Rs.47,53,519/- to the second respondent on or before February 27, 2019.
The petitioner on June 27, 2019 sent an e-mail to the second respondent asking him not to present the cheque in the bank for encashment. The second respondent presented the said cheque to his Banker i.e. the Syndicate Bank, which was returned back unpaid due to the reason “account blocked” vide return memo dated July 4, 2019. Thereafter, the second respondent served a legal notice dated through counsel on the official address of the first accused- petitioner and the accused third and fourth which was returned back with the remarks "always door locked"/not received despite repeated attempts and leaving intimation. The second respondent being aggrieved filed a complaint.
The trial Court vide impugned order, took the cognizance for the offence punishable under section 138 of the NI Act against the first accused- the petitioner and the third accused.
After considering the submissions, the Court noted that the cheque return memo is a memo informing the payee’s banker and the payee about the dishonour of a cheque. When the cheque is dishonoured, the drawee bank immediately issues a cheque return memo to the payee’s banker mentioning the reason for non-payment.
The purpose of the cheque return memo is to give the information of the holder of the cheque that his cheque on presentation could not be encashed due to the variety of reasons as mentioned in the cheque return memo. As per the section 146 of the NI act, the cheque return memo on presentation presumed the fact of dishonour of the cheque unless and until such fact is disapproved, the Bench noted.
The Bench clarified that Section 138 does not mandate any particular form of cheque return memo which is nothing but mere information given by the Banker of the due holder of a cheque that the cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal.
“The cheque return memo is not a document which is not required to be covered under section 4 of the Bankers Book (Evidence) Act, 1891. If there is any infirmity in the cheque return memo, it does not render entire trial under section 138 of the NI Act as nullity”, the Court further noted.
The perusal of the alleged cheque return memo which was under challenge reflected that the cheque April 15, 2019 amounting to Rs.47, 53,519 could not be encashed due to the “account blocked”.
“If it is presumed that there is any irregularity or illegality in the format of the said cheque return memo then it can be addressed during the course of trial. The petitioner has not disputed the issuance of cheque under his signature and the dishonour of the cheque by the concerned Bank”, the Court stated.
Hence, the Court opined that the grounds as taken by the petitioner to attack the impugned order were without any factual and legal basis. There was no infirmity or illegality in the impugned order. Noticing that the present petition was misconceived, the Bench dismissed the same.
In W.P.(C) 2663/2022-DEL HC- Writ of mandamus can only be issued to authority to do something when petitioner has established legal right vested in him and corresponding legal duty vested in State, says Delhi HC while directing CBSE to correct DOB in woman's marksheet
Justice Chandra Dhari Singh [25-11-2022]
Justice Chandra Dhari Singh [25-11-2022]
Read Order: PREMA EVELYN DCRUZ v. UNION OF INDIA AND ORS
New Delhi, November 28, 2022: The Delhi High Court has reaffirmed the settled principle of law that writ of mandamus can be issued only if an aggrieved party has an enforceable legal right under a statute or rule.
Justice Chandra Dhari Singh disposed of the instant petition which revolved around the birth certificate of a woman who by the stroke of a pen got her birth year wrongly recorded as 1983 instead of 1981.
The Bench was of the view that failure to exercise jurisdiction may put the petitioner to serious hardship. Hence, to render justice, it is always open for the Court to pass appropriate orders, taking into account the facts and circumstances of each case.
In 2019, upon digitization and publication of birth records, she gained access to her birth certificate and thus began her saga of getting her year of birth corrected in all the official documents – from Aadhaar, Voter ID, PAN, and passport – in which she succeeded. However, her quest hit a roadblock with CBSE, which declined to modify the same – and hence, the instant petition reached this Court.
Factual matrix of the case was such that the Petitioner was a citizen of India born in Chennai who was home-schooled and did not formally enroll in any educational institution during the period 1993 to 1999. Thereafter, the petitioner applied for appearing in the Secondary School Examination of the CBSE under the "Private Candidates" category, availing the services of an external agent.
The said agent, while submitting relevant documents, indicated the Petitioner's date of birth as February 27, 1983 which also came to be reflected in her admit card for the Secondary School Examination.
On October 5, 2021, the petitioner attempted to rectify the error in her date of birth mentioned in the earlier passport and applied for re-issuance of the passport with the correct date of birth to the Regional Passport Office. She also applied to the CBSE for correction of her date of birth in her Class X Certificate, and to record her correct date of birth consistent with her birth certificate.
The Regional Passport Office and the CBSE , however, did not take steps to rectify her date of birth.
After considering the submissions from both the sides, the Court noted the issue that was posed for consideration before this Court was as to what extent this Court will be justified in directing correction of date of birth in the mark sheet based on an extract of birth certificate.
In view of the same, the Court noted that the condition imposed in the bye-laws is not statutory in nature. However, it is enforceable as the bye-law conditions have to be observed by every candidate who undertakes the Board Examinations. Such conditions cannot be totally ignored or brushed under the carpet and every candidate will have to comply with such conditions, the Court noted.
It was further noted by the Court that in the instant case, the case of the petitioner does not fall under the category of clerical or typographical error, in comparison with the school records.
It appears to be a genuine mistake as the date of birth is entered as February 27, 1983 instead of February 27, 1981. As rightly contended by the counsel for the petitioner, since the forms of the examination were filled up by the agent of the petitioner, therefore, he might have filled up the wrong date of birth of the petitioner, the Bench added.
In other words, a situation as envisaged for reconciling the school records with the birth certificate from statutory authority was not contemplated by the CBSE in their bye laws, the Court further stated.
The Court observed that the bye-laws of the CBSE cannot be applied to the facts and circumstances of this case. However, to reconcile the date of birth entry in the mark sheet with that of the entry in the statutory certificate, the candidates should not be left without any remedy. Their right to approach the Court for redressing their grievance thus cannot be ruled out.
In pursuance of the same, the Court noted “it is a well settled principle of law that writ of mandamus can be issued only if an aggrieved party has an enforceable legal right under a statute or rule. The writ of mandamus can only be issued to an authority to do something when the petitioner has established a legal right vested in him and a corresponding legal duty vested in the State”.
The Court opined that failure to exercise jurisdiction may put the petitioner to serious hardship. Hence, the Bench ordered that CBSE shall correct the entries in the mark sheet of the petitioner with reference to her corresponding birth certificate issued by the statutory authority and other documents like Aadhar Card, Voter ID Card, PAN Card and Passport.
New Delhi, November 28, 2022: Noting that the act of adoption is not available to be exercised with respect to a child specific, the Delhi High Court has made it clear that whenever a question of adoption does arise, the need or the desire of a Prospective Adoptive Parent would always be subservient to the interest of the child.
A Single-Judge bench of Justice Yashwant Varma allowed the present writ petition instituted to assail the communication issued by the Central Adoption Resource Authority (CARA) informing the Specialized Adoption Agency (SAA) concerned and where Child “S” presently stands housed, of a complaint which had been received by the National Commission for Protection of Child Rights (NCPCR) alleging violation of the adoption regulations which apply. CARA in terms of that communication apprised the SAA that till the aforesaid complaint is investigated, it should withdraw the Adoption Petition which had been presented before the competent court.
Factual background of the case was such that "Child “S” was found abandoned in a cremation ground.On a preliminary medical examination, the child was found to have been born prematurely and therefore was referred for further examination. The attending doctor on November 5, 2019 apprised the CWC that considering that the child was suffering from meningitis, she would require further medical treatment. Consequently, Child “S” remained hospitalized and underwent treatment.
The child was ultimately declared legally free for adoption by the CWC and the petitioners, the Prospective Adoptive Parents (PAPs) made a reservation in favour of Child “S” thereafter.
The dispute emanates from a complaint which is stated to have been made to the NCPCR by one Amit Kumar Mishra who had alleged that Child “S” had been rescued by his uncle and that the entire medical expenditure relating to her treatment in different hospitals had been born by the complainant and his family. The inspecting team of CARA has categorically stated that no Resident Indian including the complainant or for that matter an NRI or an OCI card holder made any reservation with respect to Child “S” within the stipulated period. It is disclosed that it was only after the period of 15 days from 05 November 2021 had expired that the petitioners acting as the PAPs’ had reserved Child “S”.
After considering the submissions from both the sides, the Court took into account section 38 of the Care and Protection of Children Act, 2015 which sets out the procedure which is to be followed for adoption of the orphaned or abandoned children. Further Section 58 and 59 of the Act and Regulations 2017 were also considered.
Coming onto the case, the Court noted that “Child “S” was not only orphaned, but one who was found to be of “special needs”. It thus becomes the bounden duty of the Court to not only empower her to erase and overcome the trauma that she underwent, but to also enable her to find the warmth of a home and enable her to stand on her feet as expeditiously as possible, the Court further stated.
“The act of adoption is not available to be exercised with respect to a specific child. This for each child is a gift of God and thus entitled to an equal right to be embraced by a family and be fostered and nurtured. Neither colour, caste, creed nor nationality should on a fundamental plane have any role to play at all”, the Court further remarked.
The Bench noted that it couldnot possibly be said that the priority principles adopted in the 2017 and 2022 Regulations were violated. CARA had categorically averred that the adoption procedure was completed by adhering to a fair and transparent process and in accordance with the procedure prescribed under the regulations. Undisputedly no reservation came to be made by a resident Indian, NRI or OCI card holder within the stipulated period prescribed under the regulations, the Court added.
The Bench further said, “The registration of a PAP on the system is solely aimed at enabling a reservation being made in respect of a child who may at any given point of time become available for adoption on the CARINGS portal. However, no PAP can claim a right in law to be entitled to adopt a child of his or her choosing or desire.”
The Bench opined that Child “S” was made available for inter-country adoption only when no reservation from a resident Indian, NRI or OCI card holder was forthcoming.
“If a failure on the part of a resident Indian be the cause for a child being made available for inter-country adoption, that cannot possibly be viewed as constituting a valid or cogent ground to either doubt the validity of the adoption or question the integrity of the adoption process”, the Bench held.
The Court in any case was of the firm opinion that the validity of an adoption can neither be doubted nor questioned merely on an asserted “possibility of irregularity. In view of such observations stated above, the petition was allowed.
Read Order: Aditya Rose v. State of Haryana
Chandigarh, November 28, 2022: While dealing with a petition for the grant of anticipatory bail to the petitioner in a case of cheating involving a sum of Rs 8 crore, the High Court of Punjab and Haryana has held that considering the seriousness of the allegations levelled against the petitioner regarding cheating a number of innocent victims of their hard earned money in lieu of giving higher rate of interest, no ground to grant bail was made out as the custodial interrogation was required.
In this case, before the Bench of Justice Arvind Singh Sangwan, an FIR was registered under Sections 406, 420, 506 IPC at the instance of 12 complainants who alleged that the main accused Rahul Rose and the petitioner committed the offence of cheating and misappropriation of the amount of Rs. 8 crores. The said amount was received by the accused for the purpose of investment in some businesses for a 2% interest on the said amount.
Later, it came to the knowledge of the investors that the mastermind of this scam was constructing a house from the money which he earned by playing fraud with the investors. It was also the investors’ plea that upon being approached by them, the petitioner’s wife and mother threatened them. Accordingly, it was prayed that legal action be taken against Rahul Rose, Aditya Rose (petitioner) and Jatin.
The petitioner’s counsel further argued that there was no evidence as to how Rs. 8 crores were paid by the victims as no details of the payment was given in the FIR. It was also submitted that there was no agreement that the petitioner or other accused persons promised to pay 2% interest on the amount paid by them and even, no document in this regard was given to the Investigating Officer. It was further contended that the petitioner was in the business of dry fruits by the name and style of ‘Rose Associates’.
The Counsel further submitted that from the bare perusal of the FIR, the offence under Sections 406, 420 and 506 IPC were not made out. It was also submitted that the petitioner was ready to appear before the Investigating Officer and join the investigation.
On the other hand, the State Counsel further submitted that the modus operandi of all the accused persons was that since the time of inception of commission of offence, in conspiracy with other, they allured all the victims including many other persons/victims, whose complaints were also pending with the police, with fake assurance that the accused will pay higher rate of interest @ 2% per annum and in that process, they have cheated the innocent persons of their hard earned money.
It was also stated that the intention of all the accused persons since the inception of committing the crime was clear to cheat the victims as by taking the amount in cash or in the account, just to gain the confidence of the victims, fake documents like pronotes/receipts and cheques, etc. were issued.
After hearing the parties, the Court observed that considering the seriousness of the allegations against the petitioner regarding cheating a number of innocent victims of their hard earned money in lieu of giving higher rate of interest, no ground was made out to grant anticipatory bail to the petitioner.
While dismissing the petition, the Court held, “... this Court finds no ground to grant anticipatory bail to the petitioner as the custodial interrogation is required.”
Read Order: MRS. X V. STATE OF HARYANA AND OTHERS
Chandigarh, November 28, 2022: While allowing a petition seeking medical termination of pregnancy of a minor rape victim, the High Court of Punjab and Haryana has observed that since the pregnancy was an outcome of violation of the minor, it will be a testimony to her bruised soul.
“In either of the said situations, the mother, as well as the child, suffer social stigma and incarceration for the rest of their lives. The same is not in the best interest of either the mother and her family already have expressed their unwillingness to bring up the child, it may not even be advancing the cause of the unborn, who will grapple to come to terms with life and be subjected to maltreatment for no fault”, the Bench added while also reflecting on how “such decision is tough, however, life is not just about being able to breathe-it is about being able to live with dignity”.
The instant writ petition was filed for the issuance of a writ in the nature of Mandamus directing the respondents to terminate the pregnancy of victim “X” (daughter of the petitioner) under the provision of the Medical Termination of Pregnancy Act, 1971.
The instant petitioner got pregnant on account of rape which she was subjected to. An FIR was registered under Sections 363, 366-A, 376, 450 and 34 of the IPC and Sections 4 and 17 of the Protection of Children from Sexual Offences, Act, 2012.
It was submitted that the petitioner was a minor and the continuation of the pregnancy will cause great physical and psychological trauma to her. It was further submitted that since the pregnancy was more than 24 weeks old, the petitioner was bound to approach this Court for seeking termination of the pregnancy in accordance with the statutory mandate.
Pursuant to an order of the Court, the petitioner appeared before the Medical Board of the Shaheed Hasan Khan Mewati Govt. Medical College & Hospital, Mewat and subjected herself to a medical examination. A report from the Board of Directors was submitted to the Court.
It was the categorical submission of the petitioner that the continuation of the said pregnancy was likely to cause her great pain as she was a minor and the pregnancy would be a persistent reminder of the atrocity to which she was subjected. It was further submitted that the anguish caused by the pregnancy was itself sufficient to constitute a grave injury to the mental health of the petitioner and that it would rather be in the betterment and best interest of the unborn child as well as the petitioner that the pregnancy was permitted to be terminated.
After hearing the parties, the Court observed that the victim was still a minor and was dependent on her family; she was yet to complete her education and pursue her goals in life. Further, while considering that the pregnancy was an outcome of a violation of the minor, the Court held that the pregnancy was a testimony to her bruised body and soul.
“The child, if born, is not a reminder of good memories, but shall be a reminder of trauma and agony she had to undergo. As an unwanted child, the member is also likely to either live a tormenting life filled up with taunts to his origin or only to be given away”, the Bench observed while holding that in either of the said situation, the mother, as well as the child, would suffer social stigma and incarceration for rest of their lives.
“The same is not in the best interest of either the mother and her family already having expressed their unwillingness to bring up the child, it may not even be advancing the cause of the unborn, who will grapple to come to terms with life and be subjected to maltreatment for no fault”, the Court held.
Importantly, the Court opined,
“Such decisions are tough, however, life is not just about being able to breathe-it is about being able to live with dignity. Where the denial of dignity and social as well as family acceptance or approval is writing on the wall, it compounds the agony of the child and leads to greater injustice. The balance thus needs to be drawn to examine the overall well-being”.
Thus, while allowing the termination of the pregnancy, the Court directed the Director of the Medical Board of the Shaheed Hasan Khan Mewati Govt. Medical College & Hospital, Mewat to take all appropriate and necessary steps needed to carry out the medical termination of the pregnancy of the petitioner upon satisfaction of all such necessary conditions as prescribed in law.
The petitioner would be at liberty to espouse her financial status before the authorities concerned and be entitled to the benefit under the prevalent schemes in accordance with the rules, the Court held.
Read Order: Hukam Singh v. Saravjit Kaur and Others
Chandigarh, November 28, 2022: While dismissing a revision petition assailing the Trial Court’s order dismissing the plaintiff’s application for setting aside the dismissal of his suit on the ground that he did not compromise the matter, rather his son obtained his false thumb impressions by taking advantage of his old age, the High Court of Punjab and Haryana has held that old age does affect physical health and mental faculties to some extent but it does not render a person susceptible to influence and pressure of others and to act on their dictates without exercising his own discretion and intelligence.
“Old age does not mean that a person suffers any loss in his mental faculties”, the Bench of Justice H.S. Madaan asserted while also holding, “It is not the sweet will of a person to file a suit, pursue it and thereafter, withdraw it from the Court and then sleep over the matter for a long time and one fine morning come up with a plea that he had not withdrawn the suit, rather he was tricked by his son in doing so”.
The plaintiff (Hukam Singh- then aged 98 years) filed a suit seeking a declaration to the effect that he was in cultivating possession of the suit land but the first defendant in collusion with the other defendants suffered an alleged sale deed in favour of the second and third defendants and a mutation was also sanctioned based on the sale deed.
Challenging the mutation as a result of fraud, concealment of facts, and misrepresentation, the plaintiff sought the same to be set aside. In addition to that, the plaintiff sought relief of permanent injunction restraining the defendants from interfering in the peaceful cultivating possession of the plaintiff over the suit land.
The suit was dismissed as withdrawn. Subsequently, the plaintiff filed an application before the trial Court seeking the restoration of the suit contending that on account of his old age (106 years), he was residing with his son who played fraud with him by changing his counsel and getting the suit withdrawn without him compromising the matter out of his free will. He further added that his thumb impression was obtained by his son with the help of new counsel in collusion with the defendants.
The second and third defendants contested the application by submitting that the application was barred by time as the suit was already decided in National Lok Adalat on the basis of the plaintiff’s statement with regard to arriving at a compromise. It was submitted that the plaintiff was identified by the village headman (Sarpanch, Gram Panchayat) and he put his thumb impression on his statement before the Court in the presence of the Presiding Officer as well as the Sarpanch.
It was also claimed that after the dismissal of the suit, the plaintiff himself transferred the suit land in favour of his son Harnam Singh and the same was incorporated in the revenue record. Another civil suit was filed by the plaintiff’s son Bhagwan Singh wherein Hukam Singh filed a written statement. From all these things, it was contended that the plaintiff was well within the knowledge of the facts of the present case.
After hearing arguments, the trial Court dismissed the application. Hence, the present Court was approached.
After hearing the parties, the Court observed that the plaintiff himself withdrew the civil suit filed by him, however, subsequently, after about one year, he had second thoughts and filed the application for restoration of the suit which was rightly dismissed by the trial Court, vide impugned order.
The petitioner’s Counsel contended that on account of his old age, the plaintiff was unable to consider what was good or bad for him and he was tricked by his son into going to the Court and withdrawing the civil suit. With respect to this argument, the Court observed that old age does affect physical health and mental faculties to some extent but does not render a person susceptible to the influence and pressure of others and to act on their dictates without exercising his own discretion and intelligence.
“Old age does not mean that a person suffers any loss in his mental faculties”, the Court observed.
Further, from the chain of events, the Court observed that the plaintiff himself had withdrawn the suit by making a statement before the Court and then he did not do anything and after about one year, filed an application for restoration of the suit which under the circumstances was rightly dismissed by the trial Court.
Accordingly, the present petition was dismissed.
In W.P. No. 18 of 2022-BOM HC- Principles of fairness & reasonableness under Article 14 cannot be applied to assail legality of concluded contracts: Bombay HC dismisses petition for re-transfer of land conveyed in favour of State Govt where no case of coercion was made out
Justices G. S. Kulkarni & Bharat P. Deshpande [25-11-2022]
Justices G. S. Kulkarni & Bharat P. Deshpande [25-11-2022]
Goa, November 28, 2022: The Goa Bench of the Bombay High Court has dismissed a petition filed by a litigant for re-transfer of a plot of his land which was conveyed by him in favour of the State to be utilised for an electricity sub-station after considering that the Deed of Transfer itself was legal and no case of forceful transfer was made out.
“...doctrine of fairness and reasonableness which are concepts under administrative law, have been held are not to be mixed up with the fair or unfair terms of the contract. More particularly, in the present circumstances when under the contract(Deed of Transfer) which has stood settled for a period of more than 10 years and when for all these years the petitioner had no quarrel whatsoever of its land having stood transferred/ vested with the respondents”, the Division Bench of Justice G. S. Kulkarni and Justice Bharat P. Deshpande asserted.
The facts of this case were such that the petitioner, an owner of a larger property situated at village Bambolim in Goa had sought to develop the property by constructing residential and commercial units. The petitioner's project is known as “Aldeia de Goa”. After due consultation with the Electricity Department, the petitioner was informed by the electricity department that a new sub-station would be required to be put up for the supply of electricity to the petitioner's project.
It was the petitioner’s case that after various meetings, the respondents insisted the petitioner to transfer and convey the property admeasuring 1000 sq. mts. in favour of the respondents for the purpose of setting up a new 33 KV sub-station which would cater to the electricity needs of the petitioner, as also the power supply in the surrounding area.
It was decided that the land to be transferred would be provided by the petitioner, free of cost and the respondent would put up a sub-station and supply electricity. As per the applicable law and the notification of Condition of Supply of Electrical Energy, dated July 6,2012 published by the Government of Goa, the Petitioner was merely liable to provide the land for setting up a new sub-station and there was no need to transfer the ownership of the land to the respondents.
As per the petitioner, till date, the respondents had not set up the sub-station. Contending that the transfer of the said plot in favour of the respondent amounted to an unjust enrichment, the petitioner had filed the petitionunder Article 226 of the Constitution of India, for issuance of a Writ of Mandamus to the Chief Engineer of the Electricity Department (first respondent) and the State of Goa to “reconvey and/or re-transfer” the said plot by cancelling the Deed of Transfer.
Noting that a free and voluntary action was resorted on the part of the petitioner providing the said land to the respondents, free of cost under the Transfer Deed and there was no material to even remotely suggest that there was any coercion on the petitioner executing the Deed of Transfer with the State Government,the Bench said, “Thus, on such false basis, if the petitioner is invoking the jurisdiction of this Court under Article 226 of the Constitution of India, to pray for a discretionary relief, the petition on this count alone would deserve to be dismissed.”
Mentioning that the petitioner had somehow by a camouflage intended to bring the cause of action within the purview of Article 226 and had very boldly stated that the petitioner had no other efficacious remedy available, the Bench opined that the petitioner knew well the scope of jurisdiction of the writ Court to grant such a relief on disputed questions of fact but he had raised various contentions asserting rights in respect of a conveyed land, in the present petition.
As per the Bench, when the petitioner asserted to reconvey/re-transfer of the plot of land in question which had stood vested with the respondents by Deed of Transfer, it certainly couldnot be a matter of judicial review in the facts of the present case when the transfer itself was under a registered document between the parties and as per law.
The High Court also clarified that the principles of unjust enrichment were not attracted in the present case, as the plot in question justly belonged to the petitioner as the respondents had retained the said plot only after the same was lawfully transferred in their favour.
It was noticed by the Bench that for a long period from the year 2012 up to 2021 requesting the respondents to re-convey the plot of land to the petitioner, there was not a whisper or any grievance of the petitioner against the respondents of any coercion being practised by the State on the petitioner.
Considering that no case of forceful transfer or any coercion was made out, the Bench dismissed the petition.
New Delhi, November 28, 2022: DSK Legal has advised Kotak Investment Advisors Limited (KIAL) in relation to the closure of KIAL’s 13th real estate fund for opportunistic real estate investments in India, the Law Firm has said.
This fund will have a corpus of USD one billion, secured through an investment of USD five hundred million from a wholly owned subsidiary of Abu Dhabi Investment Authority (ADIA) and is domiciled in Gujarat International Finance Tech City (GIFT City), DSK Legal said in a press statement.
The Law Firm assisted KIAL in reviewing, negotiating and revising the contribution agreements, investment management agreement and the trust deed and drafting and reviewing of all other ancillary documents related to the transaction.
The team representing DSK Legal comprised of Mr. Hemang Parekh (Partner), Ms.Saumya Malviya (Senior Associate) and Ms. Sharmishtha Bharde (Associate), it said.
Read Order: Sushil Kumar v. State of Haryana
Chandigarh, November 28, 2022: While dealing with a petition seeking the grant of regular bail to a Cashier of the State of Bank of India who withdrew a sum of more than Rs 40 lakh from an inactive account of a deceased account holder, the High Court of Punjab and Haryana has held that the general public has an undying and everlasting faith in the Banking system,however, when the very employee of a Bank starts doing cheating with the customers, the same reminds one of the saying `nothing can be safe when the fence start eating the crop’.
“Thus, being the custodian of the public money, the petitioner was ordained with utmost honest conduct, but he has breached the same. If the people like petitioner, are enlarged on bail, the same would defeat the very fiduciary relationship”, the Bench of Justice Harnaresh Singh Gill held.
Prayer in this petition was for the grant of regular bail to the petitioner in an FIR registered under Sections 420, 467, 468, 471, 204 and 120-B IPC.
The petitioner was working as Clerk in State Bank of India since 2010. As per the prosecution version, there was a bank account in the name of Savitri Devi, having Rs. 42,55,082/- as a credit balance. This account remained inoperative for about 10 years and thus, was categorized as 'dormant'. The said account was allegedly withdrawn in cash by the petitioner along with the other co-accused.
Upon an enquiry conducted by the Bank, it was found that product of the account of Savitri Devi was changed and made operational by one Gaurav Indora and based on the forged documents, the amount was transferred from HATT Road Safidon Branch to Pillu Khera Branch. Following this, the petitioner allegedly withdrew the said amount from June 2019 to September 2020.
As per the petitioner’s counsel, the petitioner discharged his duties with utmost sincerity, honesty and had an unblemished record. The Counsel further added that in fact the petitioner himself was a victim of the criminal conspiracy being hatched by the Bank's senior officials in order to save their skin. Still further, it was submitted that the petitioner was never posted at Safidon Branch, where the account of Savitri Devi existed and that all these facts indicated his innocence.
He further submitted that the petitioner was in custody since May 2022 and after investigation, the challan was already presented, thus, the further incarceration of the petitioner was not justified.
Per contra, the State counsel argued that the petitioner actively participated in the occurrence. It was his submission that after the death of Savitri Devi in 2008, the petitioner being the Cashier along with the other co-accused, withdrew an amount of Rs. 46,30,000/- from her bank account and that too by forging her signatures.The Counsel added that after the petitioner’s arrest, an amount of Rs. 50,000/- was recovered from him. He submitted that initially when no objection was raised to the withdrawal of Rs.100/- from her account, the petitioner withdrew the remaining amount on different occasions and the last withdrawal was made in September 2020 which was in his name.
Still further, it was submitted that though the account of Savitri Devi was classified as 'Dormant', yet on an inquiry of the said account, it was found that the same remained in operation for about 84 days and sometimes, in a single day 7 to 8 transactions were made.
After hearing the parties, the Court observed that severe and specific allegations were levelled against the petitioner who used his ID (Identity Document) to withdraw a huge amount from the account of Savitri Devi (since deceased), which admittedly was classified as 'dormant'. Merely because the petitioner was in custody since May 2022, there was no ground to grant him the concession of regular bail, the Court added.
Further, seeing the nature and the gravity of the offence, the Court observed that the general public has an undying and everlasting faith in the Banking system and they deposit their hard-earned money in the Banks, considering the same as a safe destination.
“However, when the very employee of a Bank starts cheating with the customers, the same reminds one of the saying `nothing can be safe when the fence starts eating the crop’”, the Court remarked.
Thus, the Court held that being the custodian of the public money, the petitioner was ordained with utmost honest conduct, but he breached the same. If the people like the petitioner are enlarged on bail, the same would defeat the very fiduciary relationship, Justice Gill asserted.
“Still further, setting the petitioner free, would further set a bad example and would rather give oxygen to the fraudsters. Hence, the petitioner does not deserve to be enlarged on regular bail”, the Court held.
The present petition was dismissed.
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
By Chirag Singla and Akash Kumar
November 16, 2022
The Indian Judicial system is overburdened with numerous cases which have cascading effects on the entire country. Mechanisms like arbitration, mediation, conciliation, and negotiation can be used to attain the goal of expeditious and party-centric dispute resolution. To attain the goals, the legislature has time and again tried to find ways to incorporate Mediation with the existing recourse available to the parties in case of dispute settlement. One such example is the Commercial Courts Amendment Act, 2018. Here, the legislature has made pre-litigation mediation a mandatory step that needs to be exhausted before instituting a suit under the Commercial Courts Act. Pre-litigation mediation can be construed as an amicable process whereby the parties come together to settle their dispute with the aid of an impartial mediator before the institution of a suit.
It is in this spirit that to facilitate the parties in expeditious resolution of disputes, a two-judge bench of the Supreme Court in the case of Patil Automation Pvt. Ltd. Vs. RakhejaEngineers Pvt. Ltd upheld that the statutory pre-litigation mediation under section 12A of the Commercial Courts Act, 2015 is mandatory and any suit instituted violating the mandate of section 12A must be rejected.
DECODING THE JUDGMENT
In the case of Patil Automation Pvt. Ltd. Vs. Rakheja Engineers Pvt. Ltd. (supra) the respondent had filed a Suit for recovery before the Additional District Judge, Faridabad. The appellant filed an application contending that the suit was filed without adhering to Section 12A of the commercial Courts act. In reply, the respondent contested the matter contending that the suit was not barred for non-compliance with Section 12A of the Act. The seminal question which arose for consideration before the Court was whether the statutory pre-litigation contemplated under Section 12A of the Commercial Courts Act, 2015 as amended by the Amendment Act of 2018 is mandatory. The Hon’ble Supreme Court dealt with it in a two-fold manner.
The Object of the Law and the Legislative Intent behind Section 12A :
The Court examined the object and legislative intent behind Section 12A and read it with rule 3 which is made for the mediation process. The Court held that language of Section 12A and strict timelines as provided in the rule pointed out that the legislature intends to make mandatory in nature. The Court further emphasized the point that the language used in Section 12A is imperative in nature. Even by going through the sublime object of the Act, the Court fully reinforced its opinion that the pre-litigation mediation is intended to produce results, which has a direct bearing on the fulfillment of the noble goals of the Lawgiver. Moreover, the settlement under section 12A of the Commercial Courts Act is accorded the status of an award under the Arbitration & Conciliation Act, it unerringly points to the object of the legislature to make pre-litigation mediation compulsory.
Whether the Provision of Section 12A is Mandatory in Nature :
To determine whether section 12A is mandatory, the Court relied on the case of Sharif-ud-Din Vs. Abdul Ghani Lone. In this case, it has been held that, if the object of the law is defeated by non-compliance with the provision, then it would be regarded as mandatory. In the present case if the pre-litigation mediation is not complied with then the whole object of the Amendment Act would be frustrated. Therefore, the Court declared that the provision of Section 12A of the Commercial Courts Act is mandatory in nature.
The Hon’ble Supreme Court, while dealing with the question of the mandatory nature of Section 12A, referred to the analogy drawn in the case of Bihari Chowdhary and Anr. vs. State of Bihar and Ors and stated that since the pre-requisite for filing a suit against the government or public servant is mandatory by the grace of section 80 CPC therefore the pre-requisite for filing a suit under Commercial Courts Act must also be mandatory and 12A must be complied with before institution of a suit.
The author herein believes that the Hon’ble Supreme Court has erred in drawing the analogy from Section 80 of the Civil Procedure Code, which lays down the provision with respect to the mandatory notice given before the institution of a suit. The Court failed to realize that the interpretation given to Section 80 is with respect to the suit filed against the government and public officials. Whereas section 12A of the Commercial Courts Act deals will commercial disputes which can also be between two private parties. The rationale behind the mandatory nature of the notice under section 80 of the Code of Civil Procedure is not apt for interpreting Section 12A of the Commercial Courts Act. The object behind the notice under section 80 is to provide an opportunity for the government or public officer to thoroughly investigate the legal proposition and settle the claim put forth by the plaintiff. The time of two months given under section 80, is to enable the government to assess the matter objectively and seek proper legal advice. The legislative intent behind this provision is to save the expenditure of the public exchequer and give apt time to the government to try and settle the claims and not to indulge in litigation thereby saving on public money and time. In the case of section 12A of the Commercial Courts Act, the same analogy cannot be ascribed because the intent of mandatory nature of Section 80 is in furtherance of public money and time whereas, the intent of mandatory nature of Section 12A is with respect to expedite the resolution of the dispute and to ease the burden of the Courts.
Furthermore, the Hon’ble Supreme Court used the golden rule of interpretation, which is interpretation in conformity with the plain language to interpret the provision of Section 12A of the Commercial Courts Act.
Moreover, the Hon’ble Supreme Court also settled the legal position with respect to the manner in which Section 12A would operate. The Court held that amendment of Section 12A will be applied prospectively, however, this judgment would be effective from 20.08.2022 so that the stakeholders become completely aware. The Court also explained how certain situations would be dealt with. These situations are as follows:
1. In case the plaint is rejected for non-compliance and no steps have been taken within limitation period, the matter cannot be reopened on basis of the prospective effect of this judgement.
2. If upon rejection of plaint, a fresh suit has been filed the benefit of prospective effect of this judgement would not be available to the plaintiff
3. In case the jurisdictional High Court has already made Section 12A mandatory and a suit is filed without adhering to Section 12A, then this judgement would not be applicable
While determining a similar question of law, the Delhi High Court, in the case of Bolt technology Vs. Ujoy Technology Pvt. Ltd placed reliance on the judgment of Patil Automation Pvt. Ltd. Vs. Rakheja Engineers Pvt. Ltd. (supra) on the point of object of the Act and how Section 12A would operate. The High Court concluded that an application under Order VII Rule 11 ought to be dismissed for non-compliance with the provision of section 12A of the Commercial Court Act unless the relief sought is urgent in nature.
The intention of the legislature is clear from the moment section 12A was introduced. However, owing to the different interpretations of High Courts, this amendment never got its teeth. By this judgment, the Hon’ble Supreme Court has given impetus to this section by making it mandatory. The Court has also held how the section would apply prospectively and explained certain situations. This new strategy aims to handle a problem at its early stage by preventing a conflict from progressing to the point where a lawsuit ever needs to be launched.
Chirag Singla is an Associate and Akash Kumar is an intern at Seraphic Advisors, Advocates & Solicitors, New Delhi.
By B S Mahajani
November 9, 2022
Hon’ble Mr. Justice D.Y. Chandrachud has assumed the office of the Chief Justice of India from today. He will have a tenure of two years as the CJI, which is fairly long. In these two years, he will have to deal with some of the pressing issues faced by the Indian Judiciary, as summarised in this write up.
1.0 Huge pendency of cases across the board:
1.1 It is a known fact that there is huge pendency of cases in all courts. As per the figures available from the official websiteecourts.gov.in, in 39 High Courts (establishments) there are 5.95 Million cases pending & in 3429 District & Taluka courts there are 42.71 Million cases pending as on today.
1.2 Normal reaction to this would be that the high number of vacancies in various courts are responsible for the huge pendency of cases. However, in my opinion, following illustrative reasons are more responsible for this age-old problem than the vacancies of judges.
a) Vacation system in the courts:
Apart from regular holidays, the courts in India have seven to eight weeks’ vacation during a year. This system eithershould be abolished or reduced by at least 50%.
It is amazing to note that the vacation mood sets in one or two weeks prior, which has a crippling effect on the functioning of the courts. Such colossal waste of time has to stop, if we want to get rid of the huge pendency.
b) Poor or no system for Appraisal of Performance of judges:
There is no mechanism for monitoring a judge’s performance. It is totally a grey area.There is no fear of losing job unlike in other government departments. In the lower / district judiciary, there is an increasing trend that judges do not hear the matters so that they do not have to pass orders/ judgments.
Concrete steps need to be taken to make judgesaccountable. It is high time that mediocrity is replaced by meritocracy in our judiciary.
c) Transfer of judges done without reviewing pendency of their judicial work:
Invariably judges are transferred without taking into account pending judicial work left by them. Many times, it is observed that a judge whose transfer is due, either does not hear the arguments or if he hears the matter, he will not pass final orders/ judgments. As a result, whenthe new judge takes over, the Advocates have to get the matters heard afresh.Due to this, the matters are dragged on & on. There should be system in place to ensure that the transferee judges do not leave pending/ part heard matters.
d) Adjournment culture:
The infamous adjournment culture of our judiciary has to be ended. There are many cases pending, for non- prosecution by the Plaintiffs/ Complainants etc. There should be system of imposing heavy costs on such litigants/ lawyers, who are not serious about conducting the cases lodged by them. In High Courts also, many petitions are admitted but how many of them are heard finally & disposed of?
e) Frivolous & vexatious litigations:
There are many frivolous & vexatious litigations/ PILs etc. lodged in various courts. Although, of late, the courts impose costs, still, the ratio is much less than desired. Abuse of legal process/ courts must be viewed seriously & courts should not be made instruments to settle personal scores / hidden agenda of litigants.
2.0 Need to introduce reforms in system of Judicial Appointments:
The Court innovated the apparatus and apparition of the collegium wresting to itself the power of appointments and transfers. This is clearly opposed to the intent of the Constitution. The collegium system is being sought to be elevated to a status higher than the law and the Constitution.The present system of collegium (i.e. Judges appointing judges) is a stark disaster and an illegitimate judicial creation. Hence it should be scrapped at the earliest.
The SC has been tirelessly advocating bringing transparency in appointments of other institutions of our country. Then, why should judiciary be spared from such pathbreaking measures.
If we intend to bring credibility & efficiency in judiciary, these are some of the important & much needed measures.
3.0 Upgradation of infrastructure of Courts ~ Training of Judicial Officers:
a) Although many effective measures are taken to upgrade the infrastructure of courts across the country, there is still much to do. It is astonishing that in India, there are still many courts in remote areas where basic necessities of water, toilets etc. are not provided.
b) Mr. Justice Chandrachud, as Chairman of E-Committee/ e-courts has done remarkable work to digitize court infrastructure.However, there are still many judges at the district level who are interested in adapting themselves to the need of the hour. Not only is the status of cases not updated, the orders passed by the courts are also not uploaded.
c) The Court staff (including lower judicial officers) need exhaustive training in this regard so as to make our courts effectively digital.
The above are some of the challenges which need to be addressed with a definite plan &in a time-bound manner, to improve the justice delivery system.Rather, in my view the CJI designate hasa very good opportunity to chart a course of action to make Indian Judiciary world class, especially when Indian Judiciary will celebrate its 75th year in 2025.
Best Wishes to Hon’ble Justice Chandrachud for a successful stint as the 50th CJI.
B. S. Mahajani is an Advocate based in Mumbai with over 30 years’ experience.
By Vipul Lamba
October 10, 2022
We all live in an economic world where our focus is to build our business and profession and take it to new heights. But one of the major concerns of all the businesses, startups and professionals is how to deal when a client / debtor / customerasks for credit, as most of the times we aren’t able to do the necessary exercise of due diligence about such client / debtor / customer either on account of lack of ignorance, negligence, lack of knowledge and resources, or with a narrow objective of improving our sales and turnovers. Unlike banks or big corporates, the primary focus of medium scale businesses, startups and professionals is to bring in business without much focus on the financial standings of clients. Lack of such required due diligence, many a times, leads to mounting of huge bad debts or delay in payments which acts as a slow poison for any business and adversely impacts future growth of resources and opportunities. A German proverb appropriate to mention here is: ‘HE WHO IS QUICK TO BORROW IS SLOW TO PAY’.
Asking for a debt to be repaid is an uncomfortable but sometimes necessary part of being a business owner. These following steps may help as a guide for recovering an overdue payment :-
a. Always Raise Tax Invoice:
Whenever, you provide any service or supply goods / products to any client / debtor / customer, first and foremost step to be taken is to consideration is to always raise an ‘Invoice’ against such supply of goods or serviceand charge applicable tax onto the Client. After supplying of such goods or services, it is advisable to always take an acknowledgement on such invoice from your Client. The company seal / stamp of your client along with the signature of the authorized person also becomes important in case your client is a company or an entity having separate corporate legal personality.
Raising an invoice and charging the applicable tax on the same, will make the amount to be recovered a legally enforceable debt and acknowledgement of receiving on the invoice confirms that client has accepted such goods or service being provided or supplied under the terms and conditions of such Invoice.
It is also advisable to put points / highlights / clauses in respect of interest on delayed payments, place of delivery and jurisdiction of courts as per your convenience. Although such highlights may not sound very important on ears but plays very important role in case of any future recovery proceedings.
b. Continuous Follow Ups
This, can be done through sending continuous letters through speed posts, emails, WhatsApp Chats for confirming the amount due and for confirming the amount due. Once a confirmation of an outstanding amount is received, the confirming party becomes liable to pay for the debt and cannot afterwards take a contrary stand.
c. Send a Demand Letter
If the Client is still dilly dallying from making the payments due, send a written Demand Letter to the Client directing the Client to clears the dues within the prescribed time, otherwise he would have to face the legal consequences.
WHAT TO DO WHEN THE PARTY REFUSES TO PAYITS DUES AND REMEDIES AVAILABLE THROUGH COURTS
a. CIVIL SUIT FOR RECOVERY UNDER ORDER 37 OF CODE OF CIVIL PROCEDURE, 1908
The most common civil remedy for recovering of money is suit for recovery of money under Order 37 of the Civil Procedure Code, 1908. The Suit under Order 37 of the Civil Procedure Code is called Summary Suit, which can be filed when there is written agreement between the parties and acknowledgement of debt by the other party. Once the Suit is instituted in the Court, and the Court has issued a summons to the Defendant, then the defendant has to make an appearance within 10 days in the Court and if the Defendant fails to make appearance then the Court assumes that the plaintiff’s allegations are true and accordingly awards the plaintiff. If the defendant makes an appearance, then the defendant has to satisfy that he has a defence and only when the Court is convinced that there are some triable issues, then only leave to defend is granted otherwise the Suit is Decreed in favour of the Plaintiff.
b. COMMERCIAL SUIT UNDER COMMERCIAL COURTS ACT, 2015
Commercial Dispute as defined under Commercial Courts Act, 2015 are the Suit which arises out of Commercial Transactions between the parties and includes ordinary transactions of merchants, bankers, financiers and traders, agreements relating to immovable property used exclusively in trade or commerce, agreements for sale of goods or provision of services. Thus, for recovery of money arising out of commercial transactions, the Commercial Suit are maintainable over other types of recovery suits. Under this type of suit also the disposal is summary in nature and the Court only goes into the trial or evidence only when it appears that there are issues which can be resolved after the parties lead the evidence, otherwise Court give its Judgment after going through the pleadings and documents filed in support of the pleadings by both the parties.
c. SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT: DISHONOURMENT OF CHEQUE
Giving goods and Services on Credit after taking the Blank Signed Cheques from the parties, is most prevalent practice for giving the goods or services on credit. Once the Cheque issued by a party Dishonours for any reason including but not limited to insufficient funds, payment stopped by the Drawer or for any other reason, then the issuing party is liable to prosecuted for an Offence under Section 138 of the NI Act, which in itself is a penal provision and issuer of the Cheque if found guilty may be punished for the imprisonment which may extend to two years along with the fine which may be double the amount of Cheque dishonoured. For instituting a Cheque Bounce case under Section 138 of the NI Act a defined procedure has to be followed. Firstly, a legal notice for dishonourment of the Cheque has to sent to the drawer within 30 days of the dishonourment of the Cheque and then if no payment is received within 15 days of the receipt of the legal demand notice, then the Complaint has to be filed in the Court within 30 days from the date of expiry of 15 days. The recovery of money through dishonoured Cheque is the fastest way to recover as the drawer has fear of imprisonment and in 90% of the Cases the drawer of the Cheques settles the dispute and makes the payment.
Hope this Article is helpful in letting you know how to safeguard your money and how to get the same recovered through Court of Law.
Vipul Lamba is advocate practicing in various Courts of Delhi. He specialises in Civil matters pertaining to Property Laws, Recovery of Money, Commercial Disputes, Arbitration and Cheque Bounce Matters. He can be contacted at firstname.lastname@example.org and 9911725864.
In APO 64 OF 2022-CAL HC- Pensionary benefits should not be withheld for indefinite period when State has failed to conclude criminal proceedings within reasonable time frame: Calcutta HC asks Municipal Corporation to release pensionary benefits to employee subject to final decision in criminal proceeding
Justices Arijit Banerjee & Apurba Sinha Ray [25-11-2022]
Justices Arijit Banerjee & Apurba Sinha Ray [25-11-2022]
In CWP No.10047 of 2016-PUNJ HC- Employee, who stands dismissed from service on account of criminal proceedings initiated against him, would be entitled to reinstatement if he stands acquitted and would also be entitled to all benefits for period he was out of service: P&H HC
Justice Jaishree Thakur [17-11-2022]
Justice Jaishree Thakur [17-11-2022]
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