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In CS(COMM) 118/2021-DEL HC- Suit without any cause of action is frivolous, vexatious and meritless which has to be thrown out at nascent stage, holds Delhi HC
Justice Neena Bansal Krishna [25-11-2022]

 

 


Read Order: KATARIA CARRIERS V. NATIONAL INSURANCE COMPANY LIMITED AND ORS 

 

Mansimran Kaur

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.

 

Further reliance was placed on the cases namely, Dahiben vs. Arvindbhai Kalyanji Bhanusali & Ors. and  T. Aribanandam vs. T. Satyapal .

 

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]

 

Read Order: Bhupinder Pal Singh v. State Of Punjab and Others 

 

Monika Rahar

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. 

 

In CRL.M.C. 4100/2022-DEL HC- If there is any infirmity in cheque return memo, it does not render entire trial u/s  138 of NI Act as nullity: Delhi HC
Justice Sudhir Kumar Jain [14-11-2022]

 

 

Read Order: GUNEET BHASIN v. STATE OF NCT OF DELHI & ANR. & ORS

 

Mansimran Kaur

 

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]

 

Read Order: PREMA EVELYN DCRUZ v. UNION OF INDIA AND ORS 

 

Mansimran Kaur

 

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.




 

In W.P.(C) 14069/2022-DEL HC- No prospective adoptive parent can claim right in law to be entitled to adopt child of his or her choosing or desire, rules Delhi HC
Justice Yashwant Varma [25-11-2022]

 

 

 Read Order: MICHELLE CAMILLERI & ANR v. CENTRAL ADOPTION RESOURCE AUTHORITY (CARA) & ANR 


 

Mansimran Kaur

 

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. 


 

In CRM-M No.53121 of 2022 (O&M)-PUNJ HC- P&H HC denies pre-arrest bail to man accused of cheating innocent people of massive amount of Rs 8 crore on pretext of giving them higher rate of interest
Justice Arvind Singh Sangwan [22-11-2022]

 

 

Read Order: Aditya Rose v. State of Haryana

 

Monika Rahar

 

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.”

 

In CWP-25508-2022-PUNJ HC- P&H HC allows minor rape victim to terminate her 26-week pregnancy, says pregnancy is testimony to her bruised body and such decisions are tough, however, life is about being able to live with dignity
Justice Vinod S. Bhardwaj [21-11-2022]

 

 

Read Order: MRS. X V. STATE OF HARYANA AND OTHERS

 

Monika Rahar

 

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. 


 

In CR-5386-2022 (O&M)-PUNJ HC- Litigant cannot file suit, withdraw it from Court, sleep over matter for long time and thereafter come up with plea that he had not withdrawn suit, rather he was tricked by his son in doing so: P&H HC
Justice H.S. Madaan [22-11-2022]

Read Order: Hukam Singh v. Saravjit Kaur and Others

 

Monika Rahar

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]

 


 

Read Order: GOAN REAL ESTATE AND CONSTRUCTION PVT. LTD v. The Chief Engineer and Ors 


 

Tulip Kanth

 

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.

 

DSK Legal advises Kotak Investment Advisors for real estate investments in India

LE Desk


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.

In CRM-M-47491-2022-PUNJ HC- Nothing can be safe when fence starts eating crop, rules P&H HC in case where SBI cashier along with others withdrew more than over Rs 40 lakh from deceased account holder’s dormant account
Justice Harnaresh Singh Gill [17-11-2022]

 

Read Order: Sushil Kumar v. State of Haryana

 

Monika Rahar

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.