Ahmedabad, September 14, 2022: The Gujarat High Court has affirmed that the no-bailable warrant could be issued when the person will not voluntarily appear in Court or police authorities are unable to find the person to serve him with a summon.
The Single Judge Bench of Justice Niral R. Mehta disposed of the instant petition preferred by the petitioner – original accused seeking quashing of a non-bailable warrant issued by the Judicial Magistrate First Class, in Criminal Case of 2018 in connection with the pending complaint filed under Section 138 of the Negotiable Instruments Act.
The Single Judge bench while bearing in mind the facts of the present case was of the opinion that it was apposite in the present case to convert the non-bailable warrant into a bailable warrant.
After considering the submissions of the parties, the Court noted that it is settled law that non-bailable warrants should normally not be issued if presence of the accused could be secured. The warrant could be issued when the person will not voluntarily appear in Court or police authorities are unable to find the person to serve him with a summons. The Court should avoid issuance of non-bailable warrants in the first instance to secure the presence of the accused and it should be applied as a last resort.
Considering the facts and circumstances of the present case, this Court was of the opinion that non-bailable warrant deserves to be converted into bailable warrant.
Accordingly, the non-bailable warrant issued by the Trial court was converted into bailable warrant on the condition that the petitioner shall execute a personal bond of Rs.05,000/- and one surety of the like amount to the satisfaction of the trial court and further conditions that the petitioner shall, remain present before the Trial Court within a period of one week from the date of receipt of the writ of this order; submit an undertaking before the Trial court stating that he will remain present on each date of the proceedings and cooperate with the proceedings and shall not take any unnecessary adjournment in the proceedings; not change his residential address without prior permission of the learned trial court and also shall provide his mobile number.
In light of the above stated observations, the instant petition was disposed of.
Read Order: Dalbir Singh v. Indian Overseas Bank and Others
Chandigarh, September 14, 2022: The Punjab and Haryana High Court, while dealing with a writ petition challenging the transfer of an employee of Indian Overseas Bank, has held that the petitioner cannot claim to be posted at any particular place as a matter of right.
The Bench of Justice Rajbir Sehrawat upheld the impugned transfer order on the ground that it was in accordance with the transfer policy of the respondent-bank as also on the ground that the petitioner could not have been adjusted at Patiala because there is no vacancy available at that place.
Essentially, the petitioner was transferred from Rajpura Branch to Kharar Branch of the respondent-Bank, which was at a distance of about 45 kilometres. The mother of the petitioner, a resident of Patiala was stated to be suffering from a heart problem. Therefore, the petitioner made a prayer to the authorities for transferring him to Patiala, where he could ensure better treatment for his mother's medical ailment. However, instead of accepting that prayer, the respondents transferred him to a distant place at Kharar Branch.
Hence, the present petition under Articles 226/227 of the Constitution of India seeking the quashing of the afore-said transfer order was filed. Apart from seeking directions to the respondents to allow the petitioner to serve in Patiala, a stay order against the impugned transfer order was also sought during the pendency of the petition.
The counsel for the respondents submitted that the petitioner completed five years' tenure at Rajpura. Under the policy of the respondent-Bank, the petitioner could be transferred within a maximum distance of 50 kilometres of his present posting, hence, with the transfer order under challenge, the petitioner was adjusted within the distance prescribed under the policy. It was pleaded that the petitioner could not have been adjusted at Patiala because there was no vacancy available at that place.
Having heard the counsel for the parties, the Court did not find any substance in the arguments raised by the counsel for the petitioner. The Court observed that it is not even in dispute that the petitioner completed five years of posting at Rajpura Branch and that he was transferred only in terms of the transfer policy of the respondent-Bank.
“Therefore, there is nothing inherently illegal in the action of the respondents. There is not even an allegation of mala fide against any person involved in the process”, held the Bench while also asserting that the petitioner cannot claim to be posted at any particular place as a matter of right.
Therefore, the present petition was dismissed.
Read Order: PRIYA KHOSLA & ANR v. RAKESH KHOSLA
New Delhi, September 10, 2022: The High Courts are not expected to sit in appeal while exercising jurisdiction under Article 227 of the Indian Constitution of the orders of the Courts below which are under challenge, especially where the orders are discretionary in nature, observes Delhi High Court.
A Single bench of Justice C Hari Shankar dismissed the instant petition which was instituted under Article 227 of the Indian Constitution in order to assail the order dated May 13, 2013 passed by the Joint Registrar of this Court in CS of 2011 which was the earlier avatar of the suit instituted by the respondent against various defendants of which the petitioners were Defendants 9 and 10. Consequent to enhancement of pecuniary jurisdiction of District Courts, the suit was transferred to the Court of the learned Additional District Judge.
Factual matrix of the case was such that when the suit was pending before this Court, the Joint Registrar in this Court, through order dated September 20 , 2012, condoned the delay of 106 days in filing of written statement by the petitioners (who are Defendants 9 and 10 in the suit) subject to payment of costs. Costs not having been paid, a last opportunity to do so was granted to the petitioners by the Joint Registrar on November 26, 2012. Instead of paying the costs, an application was preferred by the petitioners seeking waiver of costs, which was also dismissed by order dated December 5, 2012.
Despite this, the petitioners did not pay the costs as directed on September 20, 2012. In view thereof, the Joint Registrar through order May 13, 2013, struck the written statement filed by the petitioners (as Defendants 9 and 10) off the record.
This was the first order under challenge in the present petition. The second impugned order – dated 17th October 2017.
Consequent to the aforesaid order, on May 13, 2013, a preliminary decree was passed by a Single Judge, partitioning the suit property amongst various legal heirs, and referring the matter to a Local Commissioner to file a report regarding possibility of partition by metes and bounds. The aforesaid order was challenged, by the petitioners, by way of two proceedings, one by an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (as the preliminary decree was passed in the absence of the petitioners) and the second by way of a review application.
The application under Order IX Rule 13 of the CPC was filed by the petitioners and the review application, challenging the the preliminary decree dated September 5, 2013, was filed on October 26, 2016. In the interregnum, consequent to enhancement of pecuniary jurisdiction of District Courts, the main suit was transferred to the ADJ.
Even while, the application filed by the petitioners under Order IX Rule 13 of the CPC was pending, the ADJ, dismissed the review application, preferred by the petitioners on seeking review of the earlier. This order whereby the review application was dismissed by the ADJ constituted the second order under challenge in the present proceedings.
After hearing the submissions of the parties, the Court was of the opinion that the petition was bound to fail. It was further noted by the Court that there was no reasonable explanation, whatsoever, for the petitioners, not having challenged the orders dated May 13, 2013 and October 17, 2017 for nearly five years after the order dated October 17, 2017 had come to be passed.
Even if one were to ignore the delay of 4½ years between May 13, 2013 and October 17, 2017, on the consideration that the review application, which stood dismissed on October 17, 2017, also sought review of the order dated May 13, 2013, there was still no explanation for the petitioners remaining silent for five years even after October 17, 2017, before filing the present petition. In addition to the same, the Court also stated that the petitioners were not illiterate, or people belonging to the underprivileged strata of society who were unaware of their rights and of the law.
Mere engagement of a Counsel does not absolve the litigant of all responsibility to follow up the matter, for years on end. This was not a case in which the delay was of a few days or even of a few months, the Court noted.
As already noted, even after October 17, 2017, nearly five years passed before the present petition was filed. This was despite the fact that, in the order dated November 25, 2019, passed by the Division Bench of this Court, in the presence of Counsel for the parties, there was a specific recital to the effect that the order dated May 13, 2013 had attained finality, as no challenge to the said order was preferred till that date. Even after October 17, 2017, four years passed without petitioners deeming it necessary to challenge the order dated May 13, 2013 or October 17, 2017.
This, in the considered opinion of the Court, this case was a textbook case of laches, operating to disentitle the petitioners to relief, the Court further remarked.
Within the confines of the jurisdiction vested in this Court by Article 227 of the Constitution of India, no ground whatsoever can be said to exist for this Court to interfere. The mere fact that the trial in the suit may still be at an incipient stage cannot be a ground for this Court to interfere with the orders, if there is no reason otherwise to interfere with the said orders. Besides, the jurisdiction of this Court under Article 227 is circumscribed by the enunciation of the law contained in a veritable plethora of judgments of the Supreme Court, the Court observed.
“This Court, therefore, was not expected, while exercising Article 227 jurisdiction, to sit in appeal of the orders of the Courts below under challenge, especially where the orders were discretionary in nature. The scope of interference is heavily circumscribed”, said the Bench.
The order dated May 13, 2013 struck the written statement filed by the petitioners off the record, following the judgment of the Supreme Court in Manohar Singh’s Case(Supra) (2010) 1 SCC 53, as costs had not been paid on as many as four occasions, despite opportunities having been granted to the petitioners, the Court observed.
The impugned order dated May 13, 2013, therefore, adopts what, according to the Supreme Court, was “the appropriate course”. No exception can, therefore, be taken thereto, the Court further stated.
The order dated October 17, 2017 examined the plea for review of the order dated May 13, 2013. The only ground urged, for review of the order dated May 13, 2013, was that the father of the Counsel was seriously unwell, and that the Counsel had been unable, therefore, to communicate the requirement of payment of costs to the petitioners, the Court opined.
The ADJ observed that the review was itself unconscionably delayed. He observed that there was no explanation for the delay between May 13, 2013 and October 26, 2016, when the review application was filed, given the fact that the period of limitation for filing a review application under Article 124 of the Limitation Act, 1963 is 30 days.
Besides the fact that the decision of the ADJ was fundamentally discretionary in nature, it cannot, even otherwise, be said to be suffering from any such error of fact, law or jurisdiction as would justify supervisory correction by this Court in exercise of the jurisdiction vested in it by Article 227 of the Constitution of India, the Court further noted. The present petition, therefore, failed both on the grounds of laches as well as on merits. This petition was accordingly dismissed.
Read Judgment: Ketan Kantilal Seth Vs State of Gujarat & Ors
New Delhi, September 10, 2022: If the Court is satisfied that it is imperative to transfer the cases in the interest of justice or to secure ends of justice, then it may do so, the Supreme Court has observed.
The Single Judge Bench of Justice J.K. Maheshwari allowed the instant transfer petitions by observing the common nature of allegations raised against the petitioner in all 14 FIRs and criminal proceedings emanating therefrom which were yet pending before respective Trial Courts in four States.
In a nutshell, the prosecution story in majority of the cases revolved around one accused company namely M/s Home Trade Limited, which was alleged to be engaged in the business Stock, Securities, Brokering and Trading. The allegations against the petitioner herein and one Sanjay Hariram Agarwal were that they were the authorized signatories of the accused company and while acting in the capacity of Directors of the said accused company, they entered into several transactions dealing with the government securities and further sold the said securities without any authorization.
Further, it was also alleged that the government securities were not delivered within time and the money raised thereby was misappropriated by the accused persons including the petitioner.
During the pendency of the instant petitions, applications for intervention were also filed on behalf of one applicant seeking permission to intervene on the grounds of being a ‘necessary’ and ‘proper’ party as stated in the application. Before adverting to merits of the transfer petitions, the application seeking intervention was taken up for disposal.
The intervenor claimed to be an agriculturist who was dependent on financial aid provided by Nagpur District Central Cooperative Bank Limited for his day today agricultural activities. It was said Chairman of NDCCB, who lodged an FIR in 2002 against the petitioner and other accused persons alleging nondelivery of the government securities worth Rs. 125 crores which NDCCB purchased through the accused company in which the petitioner and other accused persons were directors. The petitioner also sought transfer of concerned trial in the instant transfer petitions.
After hearing the contentions of the parties, the Court noted that the primary issue for consideration before this Court was whether the criminal cases pending before different Trial Courts in four States can be transferred to one Trial Court in one State and if transfer of case of one of the criminal cases which is at the final stage of trial before the concerned Court in Nagpur, can be directed to be transferred at such belated stage.
“Section 406 deals with the power of the Supreme Court to transfer the cases. The Court can exercise such power for fair trial and to secure the ends of justice. The language impliedly left the transfer of the cases on the discretion of the Court. If the Court is satisfied that it is imperative to transfer the cases in the interest of justice or to secure ends of justice, then it may do so”, the Court further noted.
In the instant case, it was not in dispute that since 2002, multiple FIRs across four States namely, Gujarat, Maharashtra, New Delhi and West Bengal were filed against petitioner and other accused persons containing broad and common allegations pertaining to act done in collusion by accused persons to defraud the complainants and misappropriate the money raised thereby while dealing/trading in government securities in the name of accused company M/s Home Trade Limited.
The State in its counter affidavit stated that during investigation, the accused Company was found not to be eligible to deal in transactions relating to government securities, whereas, petitioner and other accused persons namely Sanjay Hariram Agarwal were acting as Directors and authorized signatories of the accused Company. From a bare perusal of the facts and FIRs, it was seen that there was commonality of facts in each FIR and that most of the transactions were taken place in Mumbai. Further, the FIRs mainly had petitioner and Sanjay Hariram Agarwal as common accused persons.
Thus, considering the common nature of allegations and pendency of proceedings, the Court opined that to meet the ends of justice and fair trial, the transfer petitions deserved to be allowed.
Read Order: VIJAY BHUSHAN GUPTA v. UNION OF INDIA
New Delhi, September 7, 2022: Involvement of identically placed persons and judgment not being restricted to operate in personam by the Court, are the prerequisite conditions for the conferment of benefits of a judgment to non-parties, the Delhi High Court has reiterated.
The Division Bench of Justice Satish Chandra Sharma and Justice Subramonium Prasad disposed of the instant petition by observing that if the petitioner met the criteria for such regularization, then merely because he could not approach the Tribunal for seeking a direction to the department, cannot be a reason for the department to not have considered his representation.
The petitioner in this case had put forth a case that he had been superseded by three of his juniors who were promoted to the rank of Senior Investigator out of turn, owing to the relaxation of certain rules by the department, first on ad-hoc basis and then on regular posts. Consequently, the petitioner was also promoted. However, the respective dates of regularization of the petitioner and the three juniors had a gap of 4 years and aggrieved therewith, the petitioner called upon the Court to regularize his services from a prior date.
Factual matrix of the case was such that on June 5, 1979 , five Jr. Investigators, including the three colleagues in question, were promoted as Sr. Investigators on an ad-hoc basis w.e.f. June 1, 1979.
The petitioner gave representation to the department for consideration of his name as well for promotion. The department refused to accede to the representation. Thereafter, on January 31, 1981 the petitioner was appointed as Sr. Investigator on an ad-hoc basis.
After almost 8 years, in 1989, the three juniors of the petitioner approached the Tribunal, through O.A. 1631/1989 for regularization of their promotions from the date of their ad-hoc appointments. Thereafter, the petitioner also approached the Tribunal being aggrieved against the refusal of the department to entertain his representation for grant of promotion along with the three juniors in the same year i.e. 1979.
The Tribunal passed a common order on November 22, 1993 observing that there was no right to seek regularization from the date of ad-hoc appointment, and refused to entertain the cases on merits. However, noting that the vacancies in senior grade had arisen in 1986, it directed the department to conduct a review of DPC and consider the case of the applicants in light of the aforesaid vacancies.
In 1996, the three juniors of the petitioner preferred another application before the Tribunal seeking regularization w.e.f. the date of their ad-hoc appointment in the senior grade i.e. from 1979. The Tribunal identified that some regular vacancies existed from 1964 onwards, and the case of the applicants must be reviewed accordingly. Consequently, the department reconsidered the case of Sh. Suresh Kumar, Sh. R.S. Attri and Sh. K.L. Goyal, and regularized their appointment as Sr. Investigators w.e.f. June 14, 1979, September 16, 1979 and January 13, 1981 respectively.
The petitioner gave certain representations to the respondent for seeking the benefit of the Tribunals order the application, however, the same was denied.
The Tribunal dismissed the application holding that no discrimination has been meted out to the petitioner vis-à-vis the three juniors as they were promoted upon the completion of four years by offering a one-time relaxation as a class.
This petition emerged from the above order passed by the Central Administrative Tribunal. The principal argument addressed by the petitioner was that the three juniors of the petitioner were granted undue relaxation for promotion as they had merely completed 2.5 years of regular service (and not 4 years) when they were promoted in 1979. It was urged that the petitioner stood on the same footing with the three juniors at that point of time, and thus, discrimination was meted out to him by not granting the same relaxation.
After considering the submissions of the parties at length, the Court noted that the law regarding whether or not the benefit of a judgment could be extended to those who are not parties to the same is no more res integra.At this stage reliance was placed on the case of State of U.P. V. Arvind Kumar Srivastava.
In furtherance of the same, the Court noted that there was nothing on record which made the the case of the petitioner different in a manner that his request for regularization from the date of ad-hoc appointment cannot even be considered by the department, in accordance with the rules and as per the availability of vacancies.
If the petitioner met the criteria for such regularization, then merely because he could not approach the Tribunal for seeking a direction to the department, cannot be a reason for the department to not have considered his representation, the Court noted.
Particularly, keeping in view that the petitioner was an applicant in previous application relating to this subject matter, his case also warranted indulgence by the department, at least for the purpose of consideration when the cases of other identically placed employees were being considered. Therefore, for the purpose of consideration of regularization from the date of ad-hoc appointment, the petitioner was identically placed with the applicants.
Thus, the Court noted that there was no question for retrospective consideration of regularization of promotion in senior grade at a time when the employee was not even eligible for promotion.
“As the settled law states, the eligibility for promotion and existence of vacancy at the relevant point of time are two prerequisites for regularization of appointment from a prior date (wherever rules so permit)”, the Bench said. Thus, to maintain parity with the three juniors, whose services got regularized from the date of their ad-hoc appointment, the Court was inclined to give the petitioner a chance to get his case considered for similar regularization from the date of his ad-hoc appointment i.e. January 28, 1981, the Court observed.
Hence, it was noted that if the respondent department finds that the case of the petitioner meets the criteria for such regularization; all consequential benefits shall accordingly follow from the date of such regularization.
Thus, the petition was disposed of.
Read Order: Jangir Singh @ Jagir Singh v. State of Punjab
Chandigarh, September 3, 2022: After considering one-year-long incarceration of the petitioner in an NDPS Act matter involving commercial quantity and the stagnancy in the Trial, the Punjab and Haryana High Court has granted bail to the accused who was apprehended with his co-accused on a bike, carrying a polythene bag containing contraband.
The Bench of Justice Manoj Bajaj held, "Apart from it, the material witnesses are police officials and at present there does not seem to be any possibility of their being won over."
The petitioner in this case filed this petition under Section 439 Cr.P.C. for the grant of regular bail pending trial in an FIR registered under Section 22 Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was in custody since his arrest on October 26, 2019.
The brief facts leading to this FIR are that the Police party, while being on patrolling duty apprehended the petitioner (pillion rider) and his co-accused (bike rider) for carrying a polythene bag in between them containing 100 strips of Tridol 50V.No.C11537 total 1000 capsules and intoxicant tablets Clovidol 100 SR B. NO.TVD 19294 i.e. 21 strips total
It was the case of the Counsel for the petitioner that the petitioner was in custody for a long period and was not involved in any other case. The counsel submitted that the co-accused of the petitioner who was driving the motorcycle, was already granted the concession of regular bail by this Court.
According to him, the investigation of the case was complete and charges were framed, but no prosecution witness was examined so far, thus he prayed for bail.
On the contrary, the State counsel opposed the prayer on the ground that the alleged contraband recovered from the petitioner fell within the ambit of commercial quantity.
After hearing the parties and considering the above background, particularly the custodial period of the petitioner, the Court opined that his (petitioner's) further detention behind the bars was not necessary for any useful purpose, as the trial was not making any progress and its conclusion would consume considerable time.
"Apart from it, the material witnesses are police officials and at present there does not seem to be any possibility of their being won over", added the Bench.
Accordingly, the present petition was allowed.
Order VII Rule 14(1) Code of Civil Procedure provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under :
14: Production of document on which plaintiff sues or relies.– (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.”
Supreme Court of India | 21-03-2012
In the said case, the Supreme Court highlighted that suspicious pleadings, incomplete pleadings and pleadings not supported by documents would not even warrant issues to be settled by making following observation:-
71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.
72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.
73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission.
75. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.
(High Court Of Delhi) | 06-03-2017
In the said case, the Delhi High court highlighted the vague assertion of the appellant in the pleadings and by referring P.K. Gupta vs Ess Aar Universal (P) Ltd in which it has been stated “11. We need to highlight that the fundamental principles, essential to the purpose of a pleading is to place before a Court the case of a party with a warranty of truth to bind the party and inform the other party of the case it has to meet. It means that the necessary facts to support a particular cause of action or a defence should be clearly delineated with a clear articulation of the relief sought. It is the duty of a party presenting a pleading to place all material facts and make reference to the material documents, relevant for purposes of fair adjudication, to enable the Court to conveniently adjudicate the matter. The duty of candour approximates uberrima fides when a pleading, duly verified, is presented to a Court. In this context it may be highlighted that deception may arise equally from silence as to a material fact, akin to a direct lies. Placing all relevant facts in a civil litigation cannot be reduced to a game of hide and seek.” held that in the plaint the lack of pleadings to said effect cannot be overlooked. There is thus a bald assertion without any material particulars regarding the firm M/s Gian Singh Sukhdev Singh being set up by the great grandfather of the appellant on which present appellant claims his share.
(High Court Of Judicature At Bombay) | 21-09-2011
In this case Bombay High court made the following observation:-
“4. We have gone through the pleadings and the documents on record and heard the respective submissions of the learned Senior Counsel appearing for the parties. Mere allegations of fraud or conspiracy or misrepresentation are not sufficient. Apart from above prayer clauses, the basic averments with regard to the allegations though made in paragraph 11 but there are no particulars/ materials /details provided. Mere allegations and/or averments are not sufficient to grant any interim or ad-interim relief, as sought, in the present case, by the Plaintiffs. The alleged defaults, misrepresentations and/or loss or damages caused to the company if any, need to be stated in a clear terms with supporting documents and the particulars. The vague allegations or averments made in the Petition, therefore, in our view, cannot be a basis to grant interim relief as sought in the present matter at this stage.”
(High Court Of Judicature At Bombay) | 27-09-2013
In this case Bombay High court stated that In the matter of an admiralty action to arrest a ship, it cannot be mere averments that would support the action. It must be supported by documentary evidence to show that the goods were in fact shipped to maintain action against the vessel and made the following observation-
“24 When a ship is arrested the owners are put to immense pressure and loss. It is not only the owners but even those whose cargo are on board the vessel suffer. Any attempt of parties to cleverly draft the plaint and create an illusion of the cause of action and obtain orders of arrest of vessel to pressurize owners to settle the matter should be nipped in the bud. Some owners may succumb to the pressure, particularly in view of the fact that cost of litigation is very high today. It will save lot of time of the Courts if fraudulent and frivolous litigations are not entertained. A meaningful reading of the Plaint shows that the basis of the Plaintiffs allegation against Defendant Nos.1 and 2 are based on documents. But no document has been produced or presented or entered in any list to show there was a contract between the plaintiff and Defendant no.2 or that the consignment was loaded on defendant no.1-vessel or carried by defendant no.2. The single Judge and the Division Bench has conclusively held that the plaintiff has failed to so establish. This is not a case where admittedly the vessel has carried the cargo but the Plaintiff has not been able to establish his prima-facie title to sue or establish the value of his claim and the security is ordered to be reduced or returned. The Single Judge and the Division Bench have in no uncertain terms held that the Plaintiff has failed to establish any link with Defendant Nos.1 and 2. In such circumstances, just because the plaintiff has alleged that they have a cause of action by narrating facts without any basis, and which has so been held by the single Judge and the Division Bench, it will be unfair to make the defendant nos.1 & 2 to go through the entire trial by incurring costs. It would also save valuable time of this Court.”
From the above discussions and decisions the following points emerge:
The pleadings must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action and recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Same can be inferred from Order VII Rule 14(1) as well that when a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court.
The following are the Case Laws answering these questions:
1. Standard Chartered Bank v. Dharminder Bhohi (Supreme Court of India) | 13-09-2013
In this case Supreme Court observed as follows:-
“27. The aforesaid provision makes it quite clear that the tribunal has been given power under the statute to pass such other orders and give such directions to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. Thus, the tribunal is required to function within the statutory parameters. The tribunal does not have any inherent powers and it is limpid that Section 19(25) confers limited powers. In this context, we may refer to a three- Judge Bench decision in Upper Doab Sugar Mills Ltd. v. Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd. wherein it has been held that when the tribunal has not been conferred with the jurisdiction to direct for refund, it cannot do so. The said principle has been followed in Union of India v. Orient Paper and Industries Limited.”
2. M/s. Satnam Agri Products Ltd. & Others v. Union of India & Others (High Court Of Delhi) | 10-12-2014
In this case, a direction was sought by petitioner before DRT in Section 17 to issue any direction to the creditor bank to consider the rehabilitation or settlement proposal, if any submitted by the borrower, On which High court of Delhi observed as follows:-
“20. Though we entertain doubt as to the correctness of the view of the two Division Benches of this Court, being of the opinion that expanding the scope of a proceeding under Section 17 of the Securitization Act to the same extent as a proceeding under the DRT Act would to a large extent nullify the very purpose of enactment of the Securitization Act, we do not feel the need to refer the said aspect for consideration by the Full Bench inasmuch as we are of the view that even if DRT in a Section 17 proceeding under the Securitization Act were to have the jurisdiction to adjudicate the debt, still it would not have the jurisdiction to issue a direction as sought by the petitioners, to the creditor bank to consider a proposal for rehabilitation / settlement.
21. It may also be added that DRT being a statutory Tribunal can perform only such functions as the Statute provides. From a reading of the Securitization Act, we are unable to find any provision empowering DRT, in a proceeding under Section 17, to issue any such direction to the creditor Bank/Financial Institution to consider the proposal for rehabilitation.”
3. Messrs Eminent Agencies & Another v. Bank of Baroda & Others (High Court of Judicature At Bombay) | 17-10-2015
In this case, Petitioners on 24th May, 2010 filed Miscellaneous Application No.101 of 2010 under Section 19(25) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, “the RDDB Act, 1993”) before the DRT inter alia praying that the Respondent Bank be ordered and directed to accept the balance OTS amount of Rs 64.50 lakh together with interest at the rate of 10% p. a. from 16th February, 2009 or such other rate as the DRT deems fit. The Bombay High court after observing that O.A. was already decided observed as follows:-
“17. Before parting, we must mention here that we seriously doubt whether the DRT had jurisdiction to entertain the prayer sought for by the Petitioners in Miscellaneous Application No.101 of 2010. In the said Application, the Petitioners, in effect sought enforcement of the settlement proposal dated 19th December, 2008. In view of the fact that the DRT had already decreed the Original Application filed by the Respondent Bank, it had become functus officio and therefore we seriously doubt that at the instance of the debtor such a Misc Application seeking enforcement of the settlement proposal dated 19th December, 2008 could have been entertained by the DRT under section 19(25) of the RDDB Act, 1993. However, since this issue was neither argued nor raised by the parties, we leave this point open to be considered in an appropriate case.”
4. State Bank of India v. Mcleod and Co. Ltd. and Ors (Debts Recovery Tribunal At Kolkata)| 03-08-2005
In this case, applicant bank refused to accept the settlement proposal as it was not covered by RBI guidelines, Debt recovery tribunal observed that it would not be equitable and just to accept the proposal of compromise under Section 19(25) of the RDDBFI Act and held as follows:
“17. It is obvious from the above quoted submission of the certificate holder Bank that the proposed compromise is not covered by the R.B.I, guidelines. Furthermore, the learned Recovery Officer has clarified in his reference vide order No. 34 dated 28th February, 2005 that the proposed compromise settlement has been approved at an amount less than the amount of certificate. Keeping in view the above circumstances where the certificate holder Bank has expressed its inability to accept the compromise proposal being contrary to the guidelines and keeping in view the ratio decidendi of the Civil Appeal No. 4929/2004 (arising out of SLP(C) No. 17147/03) as quoted above, it would not be equitable and just to accept the proposal of compromise under Section 19(25) of the RDDBFI Act. In case the compromise proposal is granted beyond what has been declined to be granted by the Bank it would not be an equitable settlement of claims. The requirement settlement of claim is the settlement between the parties by any lawful agreement of compromise. In case the settlement is against the policy of the
R.B.I. which is not acceptable to the certificate holder Bank it would be imposition of the settlement and not an equitable and agreeable settlement between the parties which cannot be accepted in the interest of justice.”
5. Neeraj Syal and Ors v. State Bank of India (High Court of Delhi)| 4-11-2019
By Highlighting the erroneous act of DRT on not accepting the settlement reached by the parties, even if both continued to stand by the settlement which they considered binding on themselves, High court of Delhi observed as follows:-
“18. This Court has heard the submissions of learned counsel for the parties. The failure to take on record the settlement arrived at between the parties by the DRT or the DRAT was the subject matter of Satish Chander Gupta (supra) where this Court inter alia observed as under:
“The DRAT is no one to decide as to at what value the bank should settle its dues with the borrower especially when the bank has Managers who have acted in pursuance to authorization in their favour and after due consideration of the proposal of the petitioners.”
19. Later in Harpreet Kaur v. M/s. Fullerton India Credit Company Limited (supra), again in the context of the failure of the DRT to take on record a settlement, it was again held:
“Even otherwise, as observed by a Division Bench of this Court in the said order dated 19.4.2010, extracted hereinabove, the parties to a proceedings are at liberty; at any stage thereof, to arrive at an amicable settlement in relation to the subject matter of the dispute, and it does not lie in the mouth of the judicial authority to obstruct or impede the amicable settlement on a ground which is not sustainable in law. The learned DRAT, as observed in the said order dated 19.4.2010, is not some kind of Ombudsman/Auditor of the Bank; to scrutinise the settlement arrived at between the bank and the borrower, as it is not within the scope and ambit of its jurisdiction or function. It is reiterated that the learned DRAT cannot arrogate to itself the power to determine the value at which the Bank should settle its dues with the borrower, especially when it does not any involve public money.”
1. Rajan Singh v. Roshan1
(High Court Of Delhi) | 12-02-2020
This court by citing the precedent held that no rights in immovable property are created, even on passing of decree for specific performance and till in execution thereof a Sale Deed is executed.
Relevant para is as follows:-
“16. Agreement purchasers do not have any right in the property/land agreed to be purchased. The Court, as far back as in Jiwan Das Vs. Narain Das, (1981) AIR Delhi 291 held that an Agreement to Sell does not create any right in the property to which it pertains and merely gives a right to the agreement purchaser to seek specific performance thereof. It was further held that no rights in immovable property are created, even on passing of decree for specific performance and till in execution thereof a Sale Deed is executed.”
2. M.a. Keerthi Prasad And Others v. Bharuka Power Corporation Ltd. And Others2
(High Court Of Karnataka) | 22-07-2015
In this case court observed that though appellant got a decree for specific performance but he should have executed the decree for specific performance on or before 23.01.1986. He did not initiate any execution proceedings at all. Therefore whatever right was accrued to him in the decree for specific performance was lost.
Relevant Para is as follows:-
17. The understanding of the plaintiff that once a Civil Court declares the sale deed as void, the fifth defendant who lost the property under the sale deed the title reverted back to Smt. Rukminiyamma is erroneous. Fifth defendant was made a party to the suit for specific performance because, on the day the suit was filed, Smt. Rukminiyamma had no right or title vest with the fifth defendant. In pursuance of the decree for specific performance only the fifth defendant along with Smt. Rukminiyamma should have executed the sale deed. Fifth defendant would have lost the right if the sale deed had been executed. No such sale deed is executed, time prescribed in law for enforcement of decree for specific performance has lapsed. Notwithstanding the fact that sale deed in favour of the 5th defendant was declared to be void, fifth defendant continued to be the owner of the suit property. Therefore he has every right to make a gift and he has executed the sale deed in favour of the 3rd defendant. All these alienations are valid. The plaintiffs have no right or interest over the property. Therefore, we do not see any merit in this appeal. Accordingly, the appeal stands dismissed.”
3. Amol & Others v. Deorao & Others3
(In The High Court of Bombay at Nagpur) | 06-01-2011
In this High court of Bombay stated that a decree for specific performance passed on the basis of an agreement to sale or a contract for sale, merely recognizes a claim for specific performance of contract, which is capable of being specifically enforced at the instance of a decree-holder. It does not elevate the status of a decree-holder, subsisting prior to passing of such a decree, to that of the owner of the property in question. It does not create any right, title, interest in or charge on the immovable property in favour of a decree-holder. Even in respect of such a decree, the sale would be complete only upon the execution of the sale-deed in favour of the decree-holder either by the vendor/judgment-debtor or through the process of the Court. It is only upon the registration of such sale-deed upon payment of stamp duty under Item 20 of Schedule I of the Stamp Act, that any right, title and interest in such property shall validly pass on to the decree-holder, who is the purchaser of the suit property. Hence, mere passing a decree for specific performance of contract does not result in the transfer of property.
Another relevant para is as follows:-
“The decision is on clause (vi) of Section 17(2) of the Registration Act, which deals with any decree or order of a Court, which is exempted from registration under clauses (b) and (c) of Section 17(1) of the said Act. It has been held that the exception engrafted therein is meant to cover that decree or order expressed to be made on compromise, which declares the pre- existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value exceeding one hundred rupees. The Executing Court has recorded the finding that Hifzul Kabir was one of the plaintiffs and was having preexisting right in the decree. Assuming this finding to be correct, the exemption under clause (vi) of Section 17(2) of the said Act would apply. Be that as it may, a decree for specific performance of contract, as has already been held, neither extinguishes right, title or interest in the immovable property, nor creates right, title or interest in immovable property and hence it is not compulsorily registrable under clauses (b) and (c) of Section 17(1) of the said Act.”
4. Kumaran v. Kumaran & Another4
(High Court of Kerala) | 30-11-2010
In this case, High court of Kerala by citing the precedents stated that the law, with no doubt, is that a decree for specific performance of an agreement for sale would not, by itself, be effective as a transfer of title and so long as the sale deed is not executed in favour of the successful vendee, either by the vendor himself or by the court, the title continues where it was before the passing of the decree. To the same effect is the decision of the Division Bench of this Court in Chrisentia Chacko v. Choyikutty [1987(1) KLT 60 Case No.83]. A Full Bench of the Allahabad High Court in Mahendra Nath and another v. Smt.Baikunthi Devi and Others [AIR 1976 All. 150] stated that a person who has got only a contract for sale or has got a decree for the specific performance of the contract, has got no interest in the land. He can only enforce the contract compelling the other side to execute the sale deed failing which the Court might execute a sale deed for the defendant, but the rights and liabilities under the contract do not attach to the land. In Hiralal Agarwala v. Bhagirathi Gore and others [1975 Cal.445], it was stated that a decree for specific performance passed on the basis of a contract for sale of immovable property does not create any interest in the property in favour of the decree holder. It only super-adds the sanction of the court to enforce it through the medium of court.
Another Relevant Para is as follows:-
7. Even if the appellants version that he was put in possession by the vendor (the judgment debtor herein) in part performance of that contract for sale, the claim that the appellant may have could be only under S.53A of the Transfer of Property Act as against his vendor. That claim does not contain or recognise any element of title in the vendee, the appellant, who is merely a promisee qua the vendor. Title to that immovable property does not pass even by a direction that is issued by a court in a suit for specific performance requiring a vendor to perform the contract, as already noted. Such a direction, as is contained in Exts.A1 and A2, the judgment and decree, has necessarily to be followed by the transfer of property by a document either on the defendant voluntarily executing it following the direction of the court or by such a document being executed with the intervention of court on the failure of the defendant to abide by the direction of court. The transfer of title occurs only with the execution and registration of the document of transfer of title, wherever registration is required. This is the law.”
1. Sudhakar Dinkar Malekar v. Hemu Prabhudas Thakur1
(High Court Of Judicature At Bombay) | 24-07-1981
In this case, question before the court was whether noncompliance with the provisions of Section 173(5)(a) and (b) and Section 207 of the Criminal Procedure Code affects the legality of the proceedings. By denying the application of the applicant, Court made the following observation:
“In the present case therefore, the mere fact that copies of the statements were not supplied to the accused persons before the case was committed to Sessions by the learned Magistrate as required by Section 207 of the Criminal Procedure Code, would not by itself, be sufficient to quash the proceedings. It is after all a question of prejudice and in the present case it is an admitted fact that the copies of the statements have been furnished to the accused. This case stands on the same footing as Narayan Raos case (supra) where the notes were destroyed by the police. After all the statements of witnesses under Section 161 of the Criminal Procedure Code are required to be recorded by the police, and the signature of such witnessses are not obtained on those: statements. They stand on the same, footing as the notes recorded by the police officers in Narayan Raos case (supra). Therefore, it is difficult for me to hold that merely because the original statements are to-day, not available, that prejudice has been caused to the accused.
16. In regard to the F.I.R. recorded under Section 154 of the Code, it is no doubt true that the original F.I.R. is not available, but its copy is available and it is furnished to the accused. It will be for the trial court to decide as to what would be the consequence of the original F.I.R. not being available, and whether secondary evidence could be led on that score, but the fact that the original F.I.R. is not available is not sufficient to quash the proceedings.”
2. Suresh Kumr Pathrella v. State through CBI2
(High Court of Delhi) | 13-09-2010
In this case, petitioner contended that the prosecution-CBI has not filed original documents and therefore cognizance should not have been taken is also without merit and cannot be accepted. The High court of Delhi, on dismissing the petition observed as follows:-
“The court had taken cognizance and issued summons after filing of statements of witnesses and perusing the said statements. Photocopy of the documents were filed. It is not alleged that the charge sheet did not comply with Section 173(2) of the Code. Cognizance is taken on the basis of the police report and material submitted therewith. Section 190(1)(b) of the Code provides that the magistrate has power to take cognizance upon a police report of such facts as provided therein on being satisfied that it is a fit case for taking cognizance of the offence.”
3. SHIVHARI LOKHANDE v. PRABHA SINGH3
(High Court Of Madhya Pradesh) | 05-10-2016
In this case, it was vehemently argued by the petitioner that photocopies cannot be admitted as secondary evidence and there were manipulation in the cheque. To this, High court of Madhya Pradesh held as follows:-
“10. In the case of Aher Rama Gova v. State of Gujarat reported as AIR 1979 SC 1567, the Apex Court has held that “in a criminal proceeding, on proof of loss of original dying declaration, secondary evidence can be given by the prosecution”. This indicates that in criminal trial, when the original papers and the documents were missing, it was not a ground to quash the proceedings and the question whether the secondary evidence could be admitted was for the trial Court to decide with reference to the documents.
11. In case of State of Kerala v. Raju 1982 Cri.L.J. 304 (Kerala), it is held that even if the originals have not been produced as provided by Section 173(5) (b) of the Criminal Procedure Code, 1973 Section 65 of the Evidence Act is wide enough to enable the accused to use the copy delivered to him as secondary evidence for the purpose of contradicting the witnesses. It would be appropriate to clear it that under Section 65 of the Evidence Act, secondary evidence is admissible only of the existence of the contents of documents which is lost but the execution of the document must be proved by primary evidence as required by Section 67 read with Section 47 of the Evidence Act.
12. It is established that the original document was lost or that the party is not in a position to produce and it has been satisfactorily proved by the complainant/respondent, therefore, the provision of Section 65 (C) of the Evidence Act can be invoked. Hence, the order dated 09/09/2014 passed by the learned Fourth ASJ, Jabalpur calls for no interference.”
(In The High Court of Bombay At Nagpur) | 02-02-2018
In this case, Bombay High court stated that the power to grant maintenance under Section 20(1)(d) of the D.V. Act conferred upon the Magistrate is in the nature of monetary relief and is directly related to suffering of the losses by the aggrieved person and any child of the aggrieved person as a result of domestic violence. Therefore, unless it is shown that the aggrieved person and/or her child has suffered such a loss, no order of maintenance can be passed under Section 20(1)(d) of the D.V. Act. In a given case, the aggrieved person has in her hand an order of maintenance granted in her favour under Section 125 of Cr.P.C. or any other law for the time being in force, still, maintenance can be granted to the aggrieved person or a child or both by invoking power under Section 20(1)(d) of the D.V. Act. But, in such a case, the order of maintenance to be granted would be in addition to the maintenance already granted to the aggrieved person or a child under the other law and that in order to be entitled to receive such additional maintenance, the aggrieved person or a child would have to establish that subsequent to the order of maintenance passed under the other law, there were fresh circumstances amounting to domestic violence leading to suffering of loss by her or her child. If no such circumstances are pleaded and proved, the power of granting maintenance under Section 20(1)(d) of the D.V. Act cannot be exercised by the Magistrate in such a case.
This court referred the case of B. Prakash vs. Deepa & Anr., reported in 2016 ALLMR (CRI)168, in which learned Single Judge of Madras High Court taking the same view, has held that the maintenance which could be granted under Section 20(1)(d) of the D.V. Act is in the nature of mandatory relief and such mandatory relief cannot be granted unless two conditions are fulfilled i.e. sufferance of domestic violence by the aggrieved person at the hands of her husband as contemplated under Section 3 of the D.V. Act and incurring of expenses and/or suffering of losses by the aggrieved person or her child as a result of such domestic violence.
The court further observed as follows:-
“8. The learned Magistrate has gone on record saying that filing of divorce petition by the respondent against the petitioner after 23 years of marriage itself amounted to domestic violence. The remark is outlandish and, if I may say so, is alien to the known jurisprudential concepts. If this is the way how the applications filed under Section 12 of the D.V. Act are decided, as has been done in the present case by the learned Magistrate, as rightly submitted by the learned Counsel for the respondents, all the provisions of law, be they be from Hindu Code Bill or Family Courts Act or D.V. Act, creating rights and obligations of parties while maintaining a fine balance between the competing interests of both sides, would be rendered nugatory and a party would dither to initiate a proceeding for assertion of his right, for the fear of being labelled as merchant of domestic violence. The learned Magistrate shall do well to avoid making such remarks without giving any thought to rights and obligations of parties under the law.”
(High Court Of Gujarat At Ahmedabad) | 09-01-2018
In this case grievance of the applicant was that both the courts below have failed to consider that there was mental cruelty against him by his wife and that there was no proof regarding Domestic Violence Act, and that wife has not prayed protection against domestic violence, so there cannot be a straitjacket order of maintenance in absence of domestic violence.
The High Court of Gujarat remanded the matter to the trial court to decide the matter afresh by observing as follows:
“It is quite clear and obvious that though trial Court is empowered to award maintenance for the aggrieved person as well as the children, if any, including an order under or in addition to an order of maintenance u/s.125 of the Code of Criminal Procedure, 1973 or any other law for time being in force, while disposing an application u/s.12(1) of the Domestic Violence Act, such reliefs is to be granted to meet with the expenses incurred and losses suffered by the aggrieved person as a result of domestic violence and not otherwise. Therefore, there is material difference so far as right to claim maintenance is concerned in all different provisions viz. u/s.125 of the Cr.P.C. – wherein maintenance is payable when husband neglects to maintain the wife and minor child, who are unable to maintain themselves; u/s.24
of the Hindu Marriage Act – maintenance during pendency of litigation; u/s.26 of the Hindu Marriage Act – maintenance is granted in case of divorce between the parties; and Section 18 of the Hindu Adoption and Maintenance Act – wherein maintenance is payable when wife has been deserted and when husband is having sufficient properties. Thereby, it is a maintenance based upon the civil dispute between the parties; whereas, under the Domestic Violence Act, Section 20 makes it clear that monetary relief to meet the expenses incurred and losses suffered, may be directed to be paid when aggrieved person suffers such loss as a result of domestic violence. Therefore, if there is no need of protection against domestic violence because the parties are residing separately and thereby, when there is no proper proof of domestic violence at the time of filing such application, which seems to be filed at a belated stage i.e. after 18 years of marriage, it would be appropriate for the trial Court to re- examine the evidence and to decide the matter afresh so as to avoid any injustice to either side.”
(High Court of Judicature at Bombay) | 04-05-2018
In this case Bombay High court stated that though the Act of Domestic Violence would be established after rendering evidence before the Court, at least the Court prima facie must be satisfied that the person approaching is as an “aggrieved person”. It is not every person who can invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family.
The Matter was remanded to Family Court to decide the entitlement of maintenance of the wife under Section 20 of the D.V. Act and following observation was made by the court:-
“However, at the same time it is to be noted that the reliefs mentioned under Section 12 are available to “Aggrieved person” and the reliefs which may be availed by invoking Section 17, 18, 19, 20, 21 and 22 are dependent on one important aspect namely the said relief is available to an “aggrieved person” who alleges to have been subjected to any act of domestic violence by the respondent. The object of D.V. Act 2005, being to protect the rights of women who are offended by the act of domestic violence committed by the respondent which
may include any adult male person or with whom the aggrieved person is in domestic relationship. The term Domestic Violence has been given a specific connotation under Section 3 of the Act and any act, omission and commission or conduct of the respondent shall constitute domestic violence in case it :
(a) harms or injuries or endangers the health, safety, life, limp or wellbeing, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any lawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injuries or causes harm, whether physical or mental, to the aggrieved person.
12. Thus, in order to claim relief under Section-12 of the Act which permits an “aggrieved person” to present an application to the magistrate seeking one or more reliefs under the Act, levelling the allegations of Domestic Violence. Thus, the reliefs contemplated under the Act are thus available to an aggrieved person who alleges that she is or has been in domestic relationship with the respondent and was subjected to any Act of Domestic Violence by the respondent. Allegation about the commission of a Domestic Violence Act is prerequisite for the magistrate or Court of competent jurisdiction to exercise the powers under the Protection from Women from Domestic Violence Act, 2005, and grant of any reliefs contemplated under the Act.
13. Perusal of the application filed by the wife claiming maintenance would reveal that apart from making the allegations that the husband is well off and earning a huge amount and the wife is left with no source of livelihood, not a single averment has been made as to any act of domestic violence which would have brought the applicant wife under the category of “aggrieved person” who would have been entitled for the benefits flowing under Section-12 including to the benefits under Section-20 of the D.V. Act 2005. The applicant in the
application preferred on 16th February 2013 do not give a single instance of domestic violence and the application has been simply preferred under the caption as an application under Section20 of the D.V. Act 2005 praying for following reliefs.”
(Before The Madurai Bench of Madras High Court) | 15-10-2015
In this case Madras High court upheld the decision of the lower court of denial of Maintenance as allegation of domestic violence was not proved and highlighted that mere registration of a complaint will not amount to proof of cruelty, as registration of the First Information Report is towards the first step to investigate and to find out whether the allegation stated in the complaint is true or not. Further court held as follows:
“35. From the provisions of Section 20(1)(d) of the P.W.D.V. Act, it is clear that the grant of maintenance under this Act is in addition to the amount awarded under any other enactment providing for maintenance. Therefore, even though the revision petitioners is not granted any maintenance, it is open to her to work out her remedy before any other law if found eligible.”
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 Kumar Shashwat
June 22, 2022
Character merchandising can be defined as the revision or secondary utilization, by the creator of an imaginary character or by a real human being or by one or several sanctioned third parties, of the indispensable personality characteristics (such as the name, image or appearance) of a character in relation to a range of goods and/or services with an outlook to creating in potential consumers a yearning to get hold of those goods and to use those services because of the customers’ attraction with that character. It should already be highlighted that the person or legal entity which will systematize the merchandising activity (the merchandiser) will infrequently be the creator of the fictional character or the real person concerned. The various property or personality rights vesting in the character will be the subject matter of contracts (such as transfer or license agreements or product or service endorsement agreements), enabling one or more than a few involved third parties to be regarded as authorized users of the character.
Registration of Character Trade Marks
The primary function of marks that are symbols in its real sense is to indicate the origin of the goods so that the consumers can distinguish who is responsible for the goods that are placed in public. On the one hand, the creator of the fictional characters is not themselves engaged in such merchandising activities. Still, they may want to procure the trademark rights for their characters in order to regulate and license their use for commercial or merchandising purposes. On the other hand, sportspersons, actors, and pop stars use their characters most rewardingly.
However, in English Law, the Trade Marks Act 1938 prohibits the use of the trademark for trafficking, dealing mainly in a commodity in the right and not primarily to indicate or identify merchandise in which the owner of the trademark is interested; do not contain such restrictions with respect to the registration of trademarks.
In Tarzan, the candidates who were solely qualified to produce movies, records, and commercialization concerning the renowned anecdotal character Tarzan were denied enlisting the word Tarzan in relation to movies, attractive tape recordings, amusement toys and merchandise. The Court of Appeal held that since the word Tarzan was outstanding and was a piece of the dialect, it neglected to meet all requirements for enrolment as a developed or invented word. It was additionally held that the word had an immediate reference to the character and nature of the items since a film managing the endeavours of Tarzan would be portrayed as a “Tarzan” film, and the candidates’ different items were merchandise connected with Tarzan. Hence, the trademark was not considered to be fit for recognizing the candidates’ merchandise. Tarzan couldn’t be enlisted as a trademark because of the way that it spoke of the character and subsequently did not appear to show the origin of the items.
The idea that fame acts as the central impediment to getting the registration of a trademark was further explained in the Elvis Presley case. The candidates, who were the legitimately perceived successors of any promoting exercises carried for the famous personality Elvis Presley, were denied enlisting of the words ” Elvis” and “Elvis Presley”, and the mark “Elvis A. Presley” regarding toiletries. The Court said that every one of the products for which enrollment was looked for was legitimately viewed as memorabilia since they were promoted principally because of their connection with the name and picture of Elvis Presley. It was in this manner held that the imprints were not unmistakable; buyers obtained stock identifying with Elvis Presley, not because they considered that Elvis Presley Enterprises showcased it, but since it conveyed the name or picture of Elvis Presley. The Court’s view was that the general population is occupied with acquiring the merchandise identified with a most loved name as a famous person and is not concerned whether licensees of such a big name create such items. Finally, the Court held that when a character is well known, it is exceptionally far-fetched that the check will mean the inception of the item.
Also, in the Diana case, the executrices of the Estate of Diana, Princess of Wales connected to enlist as a trademark the words “Diana, Princess of Wales” for a wide variety of products and ventures. However, the application was rejected since it was held that the words Diana, Princess of Wales needed peculiarity. It was held that while most individual names might be considered to symbolize the inception of the merchandise, this is not the situation where an acclaimed name is worried; in such cases, it is conceivable that the name will serve to mean the topic of the items, rather than its beginning. It was further held that a normal customer would not expect that all memorabilia bearing the Princess’ name were marketed under the control of one undertaking in charge of their quality.
Exactly when an anecdotal character is introduced in academic work, as a creative work, or an abstract work, it is spoken to by the gauges of copyright law. Usually, the makers of the works hold copyright over these characters. When these characters are a part of a film or the producer has copyrights over the character. Note that the copyright may not come to exist in any fictional character appearing in a copyrighted work without any other person’s information. For such a character to be freely secured under the degree of copyright certification, the character must be managed independently of the story, cartoon or movie that it belongs to. In this instance, Star India v. Leo Burnett, the above was noted:
“The fictional characters are generally drawings in which copyright subsists, e.g., cartoon, and celebrities are living beings who are otherwise very famous in any particular field, e.g., film stars, sportsmen. It is necessary for character merchandising that the characters to be merchandised must have gained some public recognition, that is, achieved a form of independent life and public recognition for itself independently of the original product or independently of the milieu/area in which it appears. Only then can such character be moved into the area of character merchandising. This presumes that the character has independently acquired such reputation as to be a commodity in its own right independently of the goods or services to which it is attached or the field/area in which it originally appears. It is only when this is established on evidence as a fact, that the claimant may be able to claim a right to prevent anyone else from using such a character for other purposes.”
The producer of a film won’t have full rights to exploit the characters that can’t be disengaged from the performer portraying the same. In such a case, the character benefits of the performing craftsman apply despite the producer’s copyrights. This, from time to time, offers a climb to a battle between the two sorts of rights. For example, there has been a conflict between a performing artist assuming the part of a well-known character Gutthi in an Indian TV show and a TV station, which is additionally the maker of the arrangement. Because of this conflict, the performing artist moved out of the show and went ahead to begin his new show on an alternate TV slot. The principal TV slot issued an open proclamation that the character Gutthi had been made for the first show. Thus, it has copyright over the same. The on-screen character issued another announcement declaring his identity rights and saying that it is he who has accomplished acknowledgement as and is constantly related to Gutthi. Inferable from this conflict of rights, none of the parties could utilize the character Gutthi in their separate shows amid the season of the conflict. Identity rights unmistakably apply in instances of superstar marketing. Copyright is relevant just to the degree there are photos of superstars, and they are to be popularized; the picture takers have rights over the photographic works.
Since the vital character components of fanciful and authentic people are utilized as a part of the connection to business articles, trademark law standards likewise come into light in instances of character promotion. For example, in India, a trademark is known as any gadget, heading, plan, mark, word, name, signature, and so on which is fit for a graphical representation and which ought to be equipped for recognizing merchandise and/or administrations of one gathering from those of the other. This broad clarification makes it conceivable to have any anecdotal or real individual’s crucial identity elements as trademarks. For example, the name of a character and his picture, signature, character outlines, voice, catchphrases he utilized, and so forth could be ensured under trademark law.
When it comes to craftsmanship, one needs to consider the most unmistakable identity properties that are celebrated and deserving of trademark security. Character promoting is the initial step for treating acclaimed anecdotal characters or genuine identities as exchange signs. Famous people additionally authorize their identity and name rights under the laws of passing off. For example, in a noteworthy case concerning the identity and trademark privileges of the well-known pop singer “Daler Mehndi”, the pop star and his partner, the offended party, could effectively uphold trademark rights over the name “Daler Mehndi” against the respondents who earned tremendous financial gains by the offering of toys in light of his identity. Even though the name of Daler Mehndi or his fundamental identity components were not enrolled as trademarks, custom-based law gives exclusive privileges to the pop star in his name and identity. The productive instance of passing off could be brought for the execution of customary law marketing rights by the proprietors of such characters in case crucial parts of their characters’ personalities are used without their endorsement. Getting statutory trademark security is also profitable in bringing actual blue instances of trademark infringement against manhandling. The proprietors of universally acclaimed characters like Batman, Harry Potter and so forth have likewise procured statutory rights by enlisting the characters’ names as trademarks in India. On the Indian side, the proprietors of the fictional character Munnabhai (that showed up in the motion picture titled “Munnabhai MBBS” and its continuation “Lage Raho Munnabhai”) have additionally enlisted such character name as a trademark.
 Tarzan Trade Mark  FSR 245, CA.
 Elvis Presley Trade Mark  RPC 543.
 Diana Princess of Wales Trade Mark  ETMR 25. See also the similar view of Isaac,B., ‘Merchandising or Fundraising? Trade Marks and the Diana, Princess of Wales Memorial Fund’ (1998) 20 European Intellectual Property Review 441.
1. Ahuja V K, Law Relating to Intellectual Property Rights (English), Lexis Nexis, 2nd Edition, 2013.
2. Wadehra B L, Law Relating to Intellectual Property (English), Universal Law Publication, 5th Edition, 2012.
3. Ananth Padmanabhan, Intellectual Property Rights HB (English), Lexis Nexis- New Delhi, 1st Edition (Hardcover), 2012.
1. John Perry Barlow, The Economy of Ideas, Wired, Mar. 1994
2. Emem Uduak Udobong, Copyright infringement in the search engine, December 2005.
Kumar Shashwat is Founding Partner at Kumar & Singh Associates.
By Deo Prakash Singh
June 2, 2022
Disciplinary proceedings are the documented rules that define the relationship and control between a master and a servant. The power of the master to exercise control over the servant is to maintain and sustain the working environment at the workplace to achieve the dedicated goal and objectives. It signifies the obligation of the servant to obey and act in accordance with the code of conduct formulated by the master.
Disciplinary action is imposed by the employer on an employee against an act of misconduct by ordering punishment. The proceedings are perhaps the most vast and litigated branches in India and are full of dilemmas and dogmas. Service matters have the maximum number of commentaries, statutes, rules and regulations. The author here tries to discuss disciplinary proceedings — how they are conducted in public service tribunals, the procedure through which cases filed, and how they are conducted.
The general conception that a government job, in contrast to a private job, is a safe and secure job that ensures uninterrupted pay, perks and other service benefits is a misnomer. The statement may be true to a considerable extent because of the play and importance of natural justice in conducting disciplinary proceedings in public service. But the master in this case is that the mighty state has the capacity to diminish the future prospects of a government delinquent employee. Not only this, in public service the government delinquent employee has no way except to knock the doors of the court which is a time-taking and expensive exercise that sometimes even remains undecided. During the pendency of the litigation the employee may be deprived of service benefits and promotions. It is very difficult to decide between the two — whether justice delayed is justice denied or justice hurried is justice buried. The principle of natural justice sometimes derails from its impregnated objective.
Natural Justice and Disciplinary Proceedings
The principles of natural justice, generally, are taken care of while conducting disciplinary proceedings.
Article 311 of the Constitution of India guarantees the protection of rights of civil servants against arbitrary dismissal, removal and reduction in rank. This protection is not available where the employee has been convicted of a criminal charge or the competent authority is satisfied that compliance with the rules of natural justice is not reasonably practicable or the President or the Governor is satisfied that holding of an enquiry is not expedient in the interest of the security of the state. This is one of the express exceptions referred to in Article 310 and not subject to any control by any other provision of the Constitution. This provision in the Constitution aims at providing security of tenure to a government servant. This shield is a security to the extent of providing certain safeguards which have been made conditions precedent for dismissal or removal or reduction in rank of a government servant.
It is established that the principle of natural justice mainly comprises of following two rules:
(I) no person is to be condemned without hearing
(II) no person shall be a judge of his own cause
These two are the basic features. It means that fairness in conducting the proceedings shall be the essence of practice and the delinquent employee should be treated fairly which may culminate into punishment. The fairness principle requires a tribunal to proceed and hear the aggrieved employee on the points of law and procedure of fairness to protect the rights ensconced in the law book.
Elements of Disciplinary Proceedings
The proceedings are conducted under the domestic jurisdiction of the employer. To hold an enquiry into the misconduct of the employee is the most important feature and a precondition to the imposition of any punishment on a public servant. It is a universal principle and procedure because of the fact that almost all government servants and employees of statutory corporations or government companies are governed by rules which generally provide for a detailed procedure to be followed before imposing any punishment.
A departmental proceeding is a quasi-judicial proceeding and hence the enquiry officer’s performance a quasi-judicial function. The articles of charges levelled against the delinquent employee must be found to have been proved. The enquiry officer is duty-bound to arrive at a finding upon taking into consideration the materials brought on record by the parties. The proceeding has to be conducted against any person in a strict adherence to the statutory provisions and the principles of natural justice. The charges would be specific, definite and distinct setting out the details of the incident which forms the basis of the charges. No enquiry can be sustained on vague charges. The enquiry has to be conducted fairly, objectively but not subjectively. The findings should not be unreasonable and perverse nor the same should be based on conjectures and surmises. The court is very a specific on proof and suspicion. Every act or omission on the part of the delinquent employee cannot be a misconduct. The authority must record reasons for arriving at the findings of fact in the context of the statute defining the misconduct. Evidence adduced should not be perfunctory. Even if the delinquent employee does not take the defence or raise any protest, that does not absolve the inquiring authority from being vitiated for the reason particularly in respect of an order involving adverse or penal consequences.
Central Civil Services (Classification, Control and Appeal) Rules, 1965 under Rule 11 enumerated major and minor penalties and the procedure to conduct the disciplinary proceedings. It has also provided, under many decisions of the Government of India, the difference and definition of major and minor penalties in which major penalty shall be in case of grave and serious charges.
The Law provides for the establishment of Administrative Tribunal for the Union and the states specifying the jurisdiction and powers of such tribunals, procedure to be followed by the tribunals and excludes the jurisdiction of all courts except the Supreme Court.
The law also provides that the president in case of Union and the Governor in case of a state may make rules and regulations of services and posts in connection with the affairs of the state to such services.
Here it is important to include that only government servants throughout a state can file their respective cases in the tribunal to get their grievances redressed. It means that the tribunals are vested with the authority to hear the grievances of the employees of the state/Union only whereas further the employees working with private companies or organisations which are not owned by the state can only file their cases under industrial disputes in labour courts and industrial tribunals.
Normally the disciplinary authority appoints a preliminary enquiry officer to look into the alleged charges against the government servant and if the preliminary enquiry officer is prima facie guilty of the alleged misconduct, he may prepare a charge-sheet of the same and produce it before the disciplinary authority. The proceeding may not be known to the delinquent employee. The disciplinary authority on the basis of the charge-sheet submitted by the preliminary enquiry officer proceed to initiate departmental enquiry and it may start afresh and may not be from the point where the preliminary enquiry officer left. It is an established rule that the preliminary enquiry officer cannot be appointed as enquiry officer in the full-fledged enquiry as he may be prejudiced to the delinquent employee because he had already framed a charge-sheet against him in the preliminary enquiry.
Procedure To Conduct Enquiry In Case Of Major Penalty
The appointing authority/ disciplinary authority has to issue in order to initiate the disciplinary proceedings against the government servant. Sometimes the Governor of the state has to do the same as he is being the appointing authority of the specified government servants. The disciplinary authority may himself enquire into the charges or appoint an officer subordinate to the enquiry officer to enquire into the charges. The charge-sheet shall be approved by the disciplinary authority. The charges should be precise and clear to facilitate the government servant of the facts and circumstances against him. The documentary evidences and the names of witnesses proposed should prove the same along with oral evidence.
The delinquent government servant shall be required to submit a written statement of his defence in person within a specified time period mentioned in the book of rules preferably within 15 days from the date of issue/receipt of the order. The government servant shall have to state that whether he desires to cross examine any witness mentioned in the charge-sheet or whether he desires to produce some new or extra evidence. He shall also be informed that in case a written submission is not filed within the specified date it will be presumed that he has none to furnish and the enquiry officer shall proceed to complete the enquiry ex parte.
It has also been decided by a court judgement that after the charge-sheet is given to the employee, an oral enquiry is must and notice should be given to the employee intimating him about the date, time and place of enquiry. It has also been laid down in this case that if an opportunity to the employee to produce witnesses or to rebut the evidence against him is not given then the whole enquiry is liable to be quashed ab initio and the punishment on the basis of such enquiry report shall not be sustainable.
It is settled law that the documents relied in support of the charges have to be proved in departmental enquiry by the enquiry officer in the presence of the delinquent employee. The government servant is also at liberty to ask for documents in case they are mentioned in the charge-sheet. But is the same have not been annexed with the charge-sheet, then opportunity of inspection has to provided.
Per contra if the charged government employee admits the charges, the enquiry officer shall submit his report to the disciplinary authority without further proceedings in enquiry but where the charged government servant denies the charges, the enquiry officer shall proceed with the enquiry to call on the witnesses as per the rules framed under the law in the presence of the government employee who shall be given the opportunity to cross examine such witnesses. After recording the aforesaid evidence, the enquiry officer records oral evidence if the charged government servant desired so in his written defence submission. The enquiry officer may ask what he pleases at any time from any witness or from the person charged with a view to discover the truth or to obtain proof. The disciplinary authority may appoint a presenting officer to present the facts of charges from the government side whereas the charged government servant too can take help of a retired government employee or legal practitioner if the enquiry officer gives his consent for it.
When the enquiry is complete, the enquiry officer shall submit its enquiry report to the disciplinary authority along with all records. The report shall consist of sufficient record of brief facts, the evidence and statement of findings on each charge with reasons thereof but the enquiry officer shall not make any recommendation about the penalty. The enquiry officer shall have to submit his final report within six months from the date of issuance of the order by the disciplinary authority and he is bound to adhere to the time-limit. In any case the total time-limit to complete a disciplinary proceeding should not exceed 18 months from the date of initiation of the proceedings, i.e., from the date of issuance of the framing of charges letter.
If there is vigilance angle, the advice of CVC shall be sought and the time limit for the advice shall be maximum 30 days. For the second advice from the CVC, the same time-limit of 30 days shall be available. Similarly the time limit for concurrence from the UPSC shall be 30 days.
Stage of Tribunal
The cause of action arises due to the impugned punishment order by the disciplinary authority against the delinquent employee and here the role of lawyers come into play to represent the petitioner/the applicant under section 19 of the Administrative Tribunal Act, 1985. Before bringing a case of disciplinary proceeding to the tribunal, the aggrieved employee against whom an adverse order has been passed has to make representation to the appellate authority against the order. It is only after the representations remain unanswered by the authorities or if the delinquent employee has not been satisfied then he can bring his case to the tribunal. The government servant challenges an adverse order as bad order in the tribunal.
The aggrieved employee says in his submissions in the court that the proceeding conducted against him were unjust, unwarranted, malicious and/or arbitrary and the charges levelled against him are unjustified and against the principles of natural justice. The petitioner prays to quash the impugned order as if it had never been passed so that he may be entitled to all consequential service benefits to which he is entitled.
The petitioner may pray for interim relief but the interim relief sought should be different from the final relief. It is prayed in the court that if the impugned order is left to stand it will do irreparable loss to the petitioner.
Disciplinary action cannot be based on breach of statutory rules or administrative actions which do not supplement rules or are inconsistent with them. Before initiating any disciplinary proceeding the master must be prima facie satisfied that the employee has committed some misconduct. The misconduct must be committed during the tenure of the service. An allegation of misconduct against an officer in relation to his quasi-judicial functions cannot be made merely on the basis that he made a mistake of judgement while passing the order. This is because the administrative adjudication also requires to perform their functions without fear or favour which may be defeated by the constant threat of disciplinary proceedings.
Disciplinary proceedings cannot be initiated only on the basis of suspicion. There must be a reasonable basis. Those disciplinary proceedings shall be quashed if the exercise of power was not bona fide, e.g. anonymous complaints, biased preliminary enquiry and disregard to the directions of the Chief Justice by the full court. Similarly, if an employee is allowed to retire on attaining the age of superannuation even after initiation of disciplinary proceedings, major management cannot be imposed on him thereafter except under rare circumstances since retirement results in severance of relationship of master and servant.
Deo Prakash Singh an Advocate practicing at the Patna High Court.
By Pallavi Ghaisas
May 31, 2022
Prior to commencement of Real Estate (Regulation and Development) Act, 2016, (“RERA”), in landmark judgment in Vaidehi Akash Housing Pvt.Ltd. Vs. New D.N. Nagar Co-op.Housing Society Union Ltd. & Ors. [2015(3)ABR270] (“Vaidehi’s Judgement”), decided on 1st December 2014 by Hon’ble Justice S C Gupte of Hon’ble Bombay High Court, inter alia, decided the rights of third party purchasers (“Allottees”) under Maharashtra Ownership Flats Act, 1963 (“MOFA”) vis-à-vis society after termination of development agreement with Developer (“Ex-Developer”). It was observed that the development agreement executed by the Ex-Developer with the society was on principal to principal basis and as per agreement executed by the Allottees with Ex-Developer, the rights of Allottees thereunder were subject to Ex-Developer’s rights and not higher than those. It was held that (i) society was not a co-promoter U/s. 2 (c) of MOFA and was merely in the position of owner vis-à-vis third party purchasers and (ii) the purchasers did not have any enforceable right, under MOFA, against the Society or the New Developer appointed by society, after termination of development agreement with Ex-Developer.
B. RERA- Regime
In the matter of Peter Almeida and Tangerine Almeida vs. M/s. Shubh Enterprises and others [Compliant No. CC006000000055575], filed by complainants therein being allottees, facts are similar to the said Vaidehi matter, the essence being the society terminates the development agreement with Developer (Ex-Developer) and appoints a New Developer for construction on land held by society. The allottees who paid monies to the Ex-Developer for securing flats under allotment letter executed with Ex-Developer sought direction from Regulatory Authority, against the society and the New Developer, for (i) executing agreement for sale and (ii) allotting flat in newly constructed building.
The Maharashtra Real Estate Regulatory Authority, Mumbai (“Regulatory Authority”) by its order dated 5thNovember 2019 directed that registered agreement for sale to be executed with complainants therein (being allottees of Ex-Developer) in accordance with the allotment letter issued by Ex-Developer. The ratio of the Vaidehi’s Judgement was not applied by the Regulatory Authority inter alia for the reason that it was before commencement of RERA and it held that after transfer of development rights in favour of the New Developer, the commitment of Ex-Developer will have to be honoured by the New Developer and society.
By common judgement dated 6th May 2022 in the appeals filed therein, the Maharashtra Real Estate Appellate Tribunal dealt with the question of- “Whether Allottees are entitled to reliefs as claimed in the complaint against the Society and New Developer” while answering the same in negative, it was inter alia reasoned as follows:
i. Since Society is not a party to contract / agreement for sale executed between Allottees and the Ex-Developer, the society cannot be held liable to any obligations that are required to be performed by Ex-Developer towards Allottees;
ii. Society has no privity of contract with the Allottees and the transaction is purely and only between the Allottees and the Ex-Developer as per settled position of law;
iii. Project registered by the New Developer does not involve the circumstances where there is a transfer in its favour as contemplated under Section 15 of RERA
iv. Neither the society nor New Developer appointed by it are under obligation to recognise claims of allottees as prayed for in the complaint therein;
v. In the absence of privity of contract, the Society and New Developer cannot be held liable to Allottees and consequently Allottees are not entitled to reliefs as claimed against the Society and New Developer;
vi. Under these circumstances, since New Developer has already taken over the project, no flat can be made available to Allottees in the project;
vii. The alternative claim of Allottees for refund, if at all, can be considered only against the Ex-Developer who has received the amount of earnest money from Allottees.
The complaint was remanded to the Regulatory Authority for considering and deciding the claim of allottees afresh to the extent of refund of the amount against Ex-Developer after hearing the concerned Parties.
Impact of RERA Judgement on Third-Party Purchasers
There are many projects halted or abandoned by Developers almost everywhere. The Society in such cases usually terminates the Development Agreement and appoints a New Developer. In such circumstances the allottees who have paid monies to Ex-Developer will now have an option to enforce their rights against Ex-Developer, before RERA authorities, for refund of amount paid by them.
Pallavi Ghaisas is a Lawyer specialising in the field of Real Estate. She works at Federal & Company, a Mumbai-based law firm.
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