Blog - Page 18 of 31 - The Law Literates

2Dec, 2023

Hon’ble Bombay High Court has held that trial court can allow compounding of offenses under Section 138 of the Negotiable Instruments Act without the complainant’s explicit consent

HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR

Anuradha Kapoor & Ors Vs State of Maharashtra & Ors

CORAM: ANIL L. PANSARE, JUSTICE
Date of Reserving : 02.11.2023
Date of Pronouncement : 29.11.2023

Hon’ble Bombay High Court has held that trial court can allow compounding of offenses under Section 138 of the Negotiable Instruments Act without the complainant’s explicit consent, provided the accused applies for it and the complainant is adequately compensated. The applicants/original accused in Criminal Complaint filed by the non-applicant no.2-Company under Section 138 of the Negotiable Instruments Act, 1881 (in short, “NI Act”) are aggrieved by the order dated 03.11.2022 passed by the learned 2nd Additional Chief Judicial Magistrate, Nagpur (in short, ‘Magistrate’), whereby the applicants’ application seeking compounding of the offence upon full payment of cheque amount has been rejected. According to the applicants, the order suffers from non-consideration of the law laid down by the Hon’ble Supreme Court, in the case of Damodar S. Prabhu vs. Sayed Babalal : (2010) Vol.5 SCC 663 and Meters and Instruments Private Limited vs. Kanchan Mehta : (2018) Vol.1 SCC 560.

Relevant Paras:

21. The question, therefore, is whether the present case is an appropriate case where the consent of non-applicant no.2 for compounding the offence, could be ignored. The answer is as follows :
In Damodar’s case, the first guideline i.e. guideline stipulated in para (i) reads as under :
“(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any cost on the accused.”
The guideline clearly stipulates that when writ of summons is issued, the accused is made to know that he could make an application for compounding the offence at the first or second date of hearing of the case and that if such an application is made, the compounding may be allowed by the Court without imposing any costs on the accused. Thus, the accused is made to believe that if he files an application for compounding offence at the initial stage of the case, the compounding will not only be allowed but will be allowed without imposing costs. The question, therefore is, if the accused in response to the writ of summons files application for compounding offence, can the Court or will it be appropriate for the Court to reject the application on the ground of absence of consent of the complainant, particularly when the accused is not put to notice that compounding will be allowed only if thecomplainant extends his consent. To my mind, in normal circumstances, when the application for compounding offences u/s 138 of the NI Act is made at the initial stage of the case and if the complainant is duly compensated, the trial Court will be fully justified in compounding the offence without consent of the complainant.
22. The purpose behind the intimation to the accused that he could make an application for compounding is to encourage settlement, considering the nature of dispute u/s 138 of the N.I. Act. Para Nos. 12 and 13 in Damodar’s case on this aspect, is relevant which read thus:
“12. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary (Cited from: K.N.C. Pillai R.V. Kelkar’s Criminal Procedure, 5th edn. (Lucknow :Eastern Book Company ,2008)

. Similarly, in the case of Vijay Kumar Gupta vs. State Government of NCT Delhi in Criminal Misc. No.2289/2013 dated 09.03.2017, the High Court of Delhi in paragraph no.7 has observed thus:-

“7. Looking into the facts and circumstances of the case and the fact that the petitioners have paid the loan/ settlement amount to the Respondent No.2 and nothing remains to be adjudicated further, to remove the hurdle in the personal life of the present petitioners for leading better and peaceful life and to meet the ends of justice, I deem it appropriate to quash the FIR No. 1087/2003, under Section 406, 420, 468, 471 of the Indian Penal Code, 1860 registered at Police Station Parliament Street, Delhi qua against the petitioners, namely Vijay Kumar Gupta, Rajkumar Sharma and Vinod Choudhary only to the extent of their role in commission of the alleged offence.” applicant/respondent no.2 has opposed piecemeal compromise by contending that such compounding is an exception and may be permissible where the complainant has given consent to the compromise and not otherwise. He submits that in Gaganpal Singh Ahuja’s case (supra) piecemeal compounding was recognised because the complainant has given consent to compounding the offence. However, in the present case, the complainant has not given such consent and, therefore, the said judgment will not be applicable to the facts of the present case. As regards Vijay Kumar’s case (supra), the learned Senior Counsel submits Mr. Anand Jaiswal, the learned Senior Counsel for the non-that the judgment relates to quashing of first information report and not compounding of offence.

36. To my mind, the ratio decidendi in the above cases is that in appropriate cases, a piecemeal compromise and compounding is permissible. The non-applicant is getting adequate compensation. In the circumstances, having given my thoughtful consideration to the attending circumstances, the request to compound the offence will have to be allowed.

37. The present case appears to me to be a fit case where powers under Section 482 of the Code must be exercised, considering the peculiar facts and circumstances of the case. Hence, following order is passed:-

ORDER
i) The Criminal Application No.566/2023 is allowed.
ii) The impugned order dated 03.11.2022 passed by learned ACMM
in SCC No. 6061/2018 is set aside. Offence punishable under Section 138 of the NI Act against the applicants stands compounded, subject to applicants depositing in the trial Court, by way of demand draft, an amount of Rs. 15,00,000/- (Rupees fifteen lakhs) along with interest at the rate of 9% from 23rd December, 2017 to 11th December, 2018 as also Rs. 25,000/- towards cost of litigation within fifteen working days from the date of this judgment, which amount the non-applicant no.2 shall be entitled to withdraw.
iii) The applicants shall stand discharged on the day the aforesaid demand draft is deposited in the trial Court.
iv) No cost is payable to the District Legal Services Authority for the reason that the application for compounding offence has been filed at the initial stage.

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Anuradha Kapoor & Ors vs State Of Maharashtra

1Dec, 2023

The Trial Courts should not issue NBWs against a person on first call in the pre-lunch hours of the Court, except when there are genuine apprehensions that the person would abscond if not taken intocustody. Such coercive steps should be taken only post 12:30 PM.

Date of decision: 21st November, 2023
FAHIM VS STATE
CORAM:
HON’BLE MR. JUSTICE AMIT BANSAL

The Trial Courts should not issue NBWs against a person on first call in the pre-lunch hours of the Court, except when there are genuine apprehensions that the person would abscond if not taken intocustody. Such coercive steps should be taken only post 12:30 PM.
ii. In situations where warrants, either bailable or non-bailable, are issued and the person appears before the Court during the course of the Court hours, the Courts should assess if the reason of non- appearance of the person was reasonable and if warranted, costs may be imposed.
iii. If the person is present through his authorized Advocate, warrants for appearance of the person should be issued only in exceptional circumstances, with reasons for the same being recorded in writing, especially where an application seeking exemption from personal appearance has been filed on behalf of the person.
iv. If an application for cancellation of NBWs due to non-appearance of the parties is filed shortly after the issuance of NBWs, the Trial Court should expeditiously consider the said application.

Relevant Paras:

3. I have heard counsels for the parties and perused the material on record.
4. Rule 3, Part C (i), Volume III, Chapter 1 of the Delhi High Court Rules states that issuance of warrants interferes with the personal liberty of a person and the Magistrate should take care that no greater hardship than is necessary is caused to the person concerned.
5. A Co-ordinate Bench of this Court in Afzal Ahmad v. State, 2022 SCC OnLine Del 256, has observed that the Trial Court should not have issued NBWs against the petitioner on account of non-appearance of the petitioner in the early hours of the day.
6. Another Co-ordinate Bench of this Court in Naresh Kumar v. State, (2006) 131 DLT 678, held that the Trial Courts should not take an extreme step of issuing NBWs during the first call and in the pre-lunch hours of the day.
7. This Court is in full agreement with the aforesaid views taken by the Co-ordinate Benches. On a lot of occasions due to variety of reasons, including the traffic situation in the city, various parties are unable to reach the Court when the matter is called for the first time, but reach later.

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Fahim vs State Delhi High Court judgment the law literates

1Dec, 2023

Consumer Protection Act, Sections 2 and 23 Medical Negligence Whether conducting the ‘NI’ procedure on patient while removing the existing ‘TI’ after the Bronchoscopy report indicated normalcy in patient’s airways, amounts to negligence or not – Held Not – ‘NI’ procedure was carried out after due consideration

M.A Biviji vs Sunita CA 3975/18 19/10/23 [ MANOJ JJ ] [ SUPREME COURT ]

Consumer Protection Act, Sections 2 and 23 Medical Negligence Whether conducting the ‘NI’ procedure on patient while removing the existing ‘TI’ after the Bronchoscopy report indicated normalcy in patient’s airways, amounts to negligence or not – Held Not – ‘NI’ procedure was carried out after due consideration – Existing “TT’ was removed after the bronchoscopy showed normalcy in the airways & trachea of the patient – It was expected that the patient would be able to breathe normally without any support after ‘TT’ decannulation – However, a _ stridor was observed in the airways of the patient, after decannulation took place – In light of the same, an alternative course of treatment in the form of an ‘NI’ procedure was opted for as a temporary measure – Nothing to show that the procedure conducted was outdated or poor medical practice. [Para 53]

Relevant paras:

52. It must be pointed out that the only medical report available in this case i.e., the RML Hospital Committee Report did not attribute any negligence to Suretech Hospital, Dr. Biviji, Dr. Jaiswal or Dr. Shendre with respect to any of the charges levelled against them. If the ‘NI’ procedure had been conducted in a negligent manner or was
a poor medical decision, it is likely that the RML Hospital Committee Report would have mentioned the same. However, no such observation was made either. Further, none of the doctors that treated the patient commented adversely with respect to the chosen course of treatment. Therefore, there is no substance to establish the causal link between the ‘NI’ procedure that was undertaken at Suretech Hospital and the subsequent medical complications that arose.

53. On the other hand, the medical team at Suretech Hospital has been able to show that the ‘NI’ procedure was carried out on 13.05.2004 only after due consideration. The existing ‘TT’ was removed after the bronchoscopy showed normalcy in the airways & trachea of the patient. It was expected that the patient would be able to breathe normally without any support after ‘TT’ decannulation. However, a stridor was observed in the airways of the patient, after the said decannulation took place. In light of the same, an alternative course of treatment in the form of an ‘NI’ procedure was opted for as a temporary measure. There is nothing to show that the procedure conducted was outdated or poor medical practice.
54. At this stage, we may benefit by adverting to what the renowned author and surgeon Dr. Atul Gawande had to say on medical treatment. He said “We look for medicine to be an orderly field of knowledge and procedure. But it is not. It is an imperfect science, an enterprise of constantly changing knowledge, uncertain information, fallible individuals, and at the same time lives on the line. There is science in what we do, yes, but also habit, intuition, and sometimes plain old guessing. The gap between what we know and what we aim for persists. And this gap complicates everything we do.”

55. The above observation by Dr. Atul Gawande aptly describes the situation here. This is a classic case of human fallibility where the doctors tried to do the best for the patient as per their expertise and emerging situations. However, the desired results could not be achieved. Looking at the line of treatment in the present matter, it cannot be said with certainty that it was a case of medical negligence.
56. Resultantly, we hold that there was no breach of duty of care at Suretech Hospital or on part of Dr. Biviji, Dr. Jaiswal and/or Dr. Shendre. The charge of negligence is, therefore, not proved. Hence, the impugned judgment awarding Rs. 6,11,638/- as compensation @ 9% simple interest p.a. on account of medical negligence committed by the single act of performing the aforesaid ‘NI’ procedure, is found to be erroneous and is set aside.
57. Resultantly, the appeal filed by Dr. M.A Biviji (Civil Appeal No. 3975 of 2018) as well as the appeal filed by Dr. Nirmal Jaiswal, Dr. Madhusudan Shendre and Suretech Hospital (Civil Appeal arising out of Diary No. 21513 of 2018) are allowed to the extent that the charges attributing medical negligence to Suretech Hospital, Dr. Biviji, Dr. Jaiswal, and Dr. Shendre are found not proved. The appeal filed by Mrs. Sunita (Civil Appeal No. 4847 of 2018) is accordingly dismissed. Parties to bear their own cost.

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M.A Biviji Sunita & Ors. Judgment the law literates

27Nov, 2023

Specific Relief Act Section 6 Section 115 CPC Temporary Injunction By the impugned judgment, a Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition.

(REPORTABLE )
CIVIL APPEAL NO. 1416 OF 2019
(Arising out of SLP (C) No. 10850/2018)

DB – HONBLE JUSTICE ROHINTON FALI NARIMAN & VINEET SARAN SUPREME COURT OF INDIA

• Specific Relief Act Section 6 Section 115 CPC Temporary Injunction By the impugned judgment, a Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first Appellate Court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police compliant had been filed in which dispossession was acquiesced in A reading of this proviso will show that, after 1999, revision petitions filed under section 115 CPC are not maintainable against interlocutory orders The Court sets aside the impugned judgment and restore the judgment of the Courts below Appeal is allowed.

Relevant Paras:

5) By the impugned judgment dated 10.04.2018, a
Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first Appellate Court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police compliant had been filed on 03.02.2013 in which dispossession was acquiesced in.
learned

6) We are constrained to observe that every legal canon has been thrown to the winds by the impugned judgment. First and foremost, the 1999 amendment to the CPC added a proviso Section 115 which reads as follows:
“115. Revision-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders.
7) Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi vs. Sarup Singh and Others(1970) 2 SCR 368 this Court held:

“The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words “illegally” and “with material irregularity” as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the
revision virtually as if it was an appeal.” at Pg.373.
8) Learned counsel appearing for the respondents argued before us and attempted to support the judgment. He cited the judgment of Dorab Cawasji Wardenvs. Coomi Sorab Warden and Others (1990) 2 SCC 117. Para 16 of this judgment is set out hereinbelow:
“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:-
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.”
This judgment also makes it clear that when a mandatory injunction is granted at the interim stage much more than a mere prima facie case has to be made out. None of the aforesaid statutory provisions or judgments have either been adverted to or heeded by the impugned judgment.

9) We, therefore, set aside the impugned judgment and restore the judgment of the Courts below.
10) Since the suit filed is a Section 6 suit which is a summary proceeding in itself, the trial Court should endeavour to dispose of the Suit itself within a period of six months from today.

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TEK SINGH VERSUS SHASHI VERMA AND ANR. Judgement_04-Feb-2019

22Nov, 2023

Land Acquisition proceedings:acquisition is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

+ W.P.(C) 407/2012, C.M. APPL.25579/2015 & 25580/2015 M/S. GREY SHAM AND CO. AND ANR. ….. versus UOI AND ORS.

+ W.P.(C) 4432/2015, C.M. APPL.8048/2015
SALONI MEHROTRA AND ANR. …. versus GNCTD AND ORS. …..

CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MR. JUSTICE S.P. GARG
03/07/17 [ DELHI HIGH COURT ]

Land Acquisition proceedings – The relief claimed in W.P.(C) is that since the property was not taken possession of by the respondents, the acquisition is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – The Court notices that the LAC whose primary responsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were builtup and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land – The documents relied upon, i.e. proceedings rule out the inference that mere symbolic possession is taken.

The respondents – GNCTD in their counter affidavit rely principally upon the proceedings of possession dated 22.12.1972. It is urged here that notwithstanding the nature of the pleading which seem to suggest that mere symbolic possession was taken, the fact remains on record that physical possession of the lands was taken and witnessed by both Govind Singh, and Man Singh, the father of Mohan Singh and Govind Singh, as well as one of the petitioners. These too were partners of Greysham and Company which is the first petitioner in the W.P.(C) 407/2012. The GNCTD furthermore submits that the position of the first petitioner in W.P.(C) 407/2012 in respect of said concerned land is also that it was in effect a licensee of the MCD and admitted as such in response to the notice by the MCD, involving deposit of arrears of damages for unauthorized occupation of a portion of the suit property. It is submitted that in this light, the submission of the petitioners that they have been in the continuous possession of the suit lands and that they were never displaced bears out from the record.
9. It is evident from the above narrative that the first petition seeks a direction for denotification and the second proceeds on the footing that the land acquisition proceedings have lapsed. So far as the first claim in the first proceeding is concerned, the GNCTD relies upon the detailed minutes of the denotification committee meeting of 25.02.2010. A look at that document will show that Greysham and Company’s application in respect of the suit property too was considered. The Committee decided not to recommend denotification because the officers of the MCD, “contended that this piece of land is required for establishment of a primary school which will be a feederschool for the existing sr. secondary school in the area.” The petitioners’ endeavor was to submit that there was already an existing school and that it was entitled to alternative land in lieu of acquired land and that consequently, a direction for denotification under Section 48 has to be made. It is consequently urged to acknowledge the claim in W.P.(C) 4432/2015 that in fact actual possession was never taken because if that were the case, the application under Section 48 would not have been maintainable.
10. As far as the claim for denotification is concerned, the Court notices that there is no authority in law to suggest that a citizen who has received compensation and whose lands have been notified for acquisition had a vested right to claim denotification. Whether to leave from acquisition or not is a matter which lies within the exclusive domain of the authority. Sans successful plea of discrimination or utterly arbitrary approach to the request for denotification, the public nature of the process itself would preclude the right to claim denotification. In short, judicial review would be confined to mere considering whether reasons for declining denotification can withstand scrutiny. It would be well to recollect that without establishing illegality, procedural irregularity or lack of bona fides, in the absence of a legal right, an order – statutory or executive, cannot be set aside or characterized as arbitrary. The reasons given by the GNCTD to reject the denotification application cannot be said to be arbitrary, particularly, because the MCD went on to say that the primary school should be established, which would cater as a feeder to the existing senior secondary school in the area.
11. As far as the petitioners’ submission with respect to allotment of alternative land is concerned, no doubt, there are observations to that effect in law. At the same time, the Court notices that the LAC whose primaryresponsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were built-up and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land. That brings the Court to a discussion on the applicability of Section 24(2) of the new Act. By several judgments, it has been established that by virtue of Section 24(2) where acquisition of land has been notified but the process has not been completed, i.e. in the sense that either possession is not taken or compensation not paid within five years, whether awards are made more than five years prior to coming into force of the new Act or whether either possession is not taken of the suit land or compensation not paid within the said five year period, the acquisition is deemed to have lapsed. Now in the present case, there is no dispute that the award was made on 02.09.1972. As far as possession is concerned, again, the petitioners did not dispute having received compensation in 1972-73. The only question which survives consideration is whether possession was taken or not. Here, the petitioners emphasise upon previous proceedings – in terms of the interim order permitting withdrawal dated 07.01.2010; the initial interim order made in W.P.(C) 407/2012 and the plea of the GNCTD in W.P.(C) 407/2012. It is submitted that cumulatively all these establish that compensation within the meaning of law or at least physical possession was never taken. Muchemphasis or stress is laid upon the expression “symbolic” used in para 4 of the GNCTD’s affidavit in W.P.(C) 407/2012.
12. The GNCTD counters this argument with the compensation proceedings of 22.12.1972 and the translated copies – the copies of which have been produced in these proceedings. Significantly, this document was not produced or even relied upon in any of the previous writ petitions – W.P.(C) 3876/1990 and W.P.(C) 407/2012. The petitioners too were aware of these proceedings. The document inter alia reads as follows:
“Possession proceeding in respect of property No.XII/7249 acquired by Award No.28/72-73.
Today on 22/12/72, M/s. Shri Ram Phal Kanoongo along with Ved Singh patwari reached at site of the property No.XII/7249 admeasuring 10951 sq. yards acquired vide Award No.28-72-73 for possession proceedings. M/s Chaman Lal, Kanoongo and Ram Kawar, Patwari were found present at the site on behalf of Municipal Corporation of Delhi. On behalf of owner M/s Girdhari Lal Karan Singh, Shri Man Singh Karta and on behalf of Greysham Company, Shri Govind Singh, Partner were found present at site. Nobody was present at the site on behalf of occupiers on behalf of occupiers at the time of possession proceedings. After taking measurement of this property and after moving the representative of Municipal Corporation of Delhi Shri Chaman Lal Kanoongo around in and outside the property No.XII/7249 measuring 10951 sq. yards along with sper structure and after taking possession, the proprietary possession was handed over to Sh. Chaman Lal Kanoongo. There are twenty-four (24) trees in this property for which compensation has been assessed by the award. There possession was also handed over to Shri Chaman Lal Kannoongo. This possession proceeding was announced in loud voice by beat of drum by Shri Mohan Lal, the watchman of the property. At the time of possession proceeding no hindrance was faced. One copy of this possession proceedings was handedover to Shri Chaman Lal, Kanoongo, Land and Estate Department of Corporation.
Sd/-illegible Sd/-Man Singh 22/12 22/12/72
Sd/-GovindSingh Sd/-Illegible Kgo.LA
sd/-illegible 22-12-72
Sd/-illegiblepat(LA) 22-12-72
Page 10 of 12
Sd/- illegible
Kgo.L&E, MCD/22/12/72”
13. It is immediately evident from a reading of the above document that the possession taken of the property was in absolute terms and not subject to any conditions. Furthermore, late Sh. Man Singh and one of the petitioners, Govind Singh, were parties to these documents and had signed it. As against this, the reliance by the petitioner with respect to the admissions made in the pleadings, in the opinion of the Court, is inconsequential. It is important here to notice that for reasons best known, the GNCTD did not advert to the possession proceedings of 22.12.1972 in the sense that the documents were never part of any of the records in W.P.(C) 3876/1990 and W.P.(C) 407/2012. They have been produced for the first time in answer to W.P.(C) 4432/2015.
14. As to the effect of this documents, the Supreme Court has ruled in DDA v. Sukhbir Singh and Ors. AIR 2016 SC 4275 by falling upon previous judgments in Raghbir Singh Sehrawat v. State of Haryana 2012 (1) SCC 792 and Banda Development Authority v. Moti Lal Agarwal 2011 (5) SCC 394 that there is no fixed criteria or set pattern of acquiring or taking over possession of acquired lands. Quoted with approval, the observations oinBanda Development Authority (supra) visualizing five situations and at the same time stating that they are not exhaustive, in Sukhbir Singh (supra) itself the Court approved the mode of acquisition, i.e. recording that the officials/authorities of the Government had visited the site and recorded the taking over of possession. Having regard to this position in law, the Court is of the opinion that in the present case too, the documents relied upon, i.e. proceedings dated 22.12.1972 rule out the inference that mere symbolic possession is taken.

15. For the foregoing reasons, the Court holds that Section 24(2) of the new Act has no application to the circumstances and facts in these writ petitions. W.P.(C) 407/2012 and W.P.(C) 4432/2015 are, therefore, dismissed.

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M:S. GREY SHAM AND CO. AND ANR. versus UOI AND ORS. + W.P.(C) 4432:2015, C.M. APPL.8048:2015 JUDGMENT THE LAW LITERATES

21Nov, 2023

Order XXI CPC Liability to pay interest on money deposited by judgment debtor-f the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it This is a rule of prudence, inasmuch as the debtor

K.L. Suneja v. Manjeet Kaur Monga

CA 1401/19 31/01/23

DOUBLE BENCH CORUM [HON’BLE JUSTICE M.R. SHAH & HONBLE JUSTICE S. RAVINDRA BHAT ] [ SUPREME COURT ]

• Order XXI CPC Liability to pay interest on money deposited by judgment debtor-f the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it This is a rule of prudence, inasmuch as the debtor, or person required to pay or refund the amount, is under an obligation to ensure that the amount payable is placed at the disposal of the person entitled to receive it. Once that is complete (in the form of payment, through different modes, including tendering a Banker’s Cheque, or Pay Order or Demand Draft, all of which require the account holder / debtor to pay the bank, which would then issue the instrument) the tender, or ‘payment’ is complete.

Relevant Paras:

30. The rule was explained in another decision of this court, in V. Kala Bharathi & Ors. vs The Oriental Insurance Company Ltd:9
“A bare perusal of the aforesaid provisions makes it amply clear that the scope of Order XXI Rule 1 of the Code of Civil Procedure is that the judgment debtor is required to pay the decretal amount in one of the modes specified in Sub-rule (1) thereof. Sub-rule (2) of Rule 1 provides that once payment is made Under Sub-rule (1), it is the duty of the judgment debtor to give notice to the decree-holder through the Court or directly to him by registered post acknowledgement due. Sub-rule (3) of Rule 1 merely indicates that in case money is paid by postal money order or through a bank under Clause (a) or Clause (b) of Sub-rule (1) thereof, certain particulars are required to be accurately incorporated while making such payment. Sub-rules (4) and (5) of Rule 1 states from which date, interest shall cease to run-in case amount is paid under Clause (a) or (c) of Sub-rule (1), interest shall cease to run from the date of service of notice as indicated Under Sub-rule (2); while in case of out of court payment to the decree-holder by way of any of the modes mentioned under Clause (b) of Sub-rule (1), interest shall cease to run from the date of such payment.”
31. The provisions of Order XXI are applicable to decrees of civil court. However, they embody a sound policy principle, that if the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it. This is a rule of prudence, inasmuch as the debtor, or person required to pay or refund the amount, is under an obligation
19
9 V. Kala Bharathi & Ors. vs The Oriental Insurance Company Ltd., 2014 (5) SCC 577, dated 1st April 1947.

20
to ensure that the amount payable is placed at the disposal of the person entitled
to receive it. Once that is complete (in the form of payment, through different modes, including tendering a Banker’s Cheque, or Pay Order or Demand Draft, all of which require the account holder / debtor to pay the bank, which would then issue the instrument) the tender, or ‘payment’ is complete.
32. In the present case, the complainant was aware that the Pay Order had been tendered by the developer to her; nevertheless she filed the original Pay Order with her complaint, and did not seek any order from the MRTP Commission at the relevant time. The pleadings in the complaint did not disclose that the Pay Order was filed in the Commission, to enable the developer to respond appropriately. In these circumstances, the developer’s argument that the rule embodied in Order XXI, Rule 4 CPC, is applicable, is merited. The developer cannot be fastened with any legal liability to pay interest on the sum of ₹ 4,53,750/- after 30th April 2005.
33. This court is also of the opinion that the complainant’s argument that on account of the omission of the developer, she was wronged, and was thus entitled to receive interest, cannot prevail. The records nowhere disclose any fault on the part of the developer; on the other hand, the complainant did not take steps to protect her interests. It has been held by this court, in Sailen Krishna Majumdar v Malik Labhu Masih10 that in such cases, even if equities are equal, the court should not intervene:
10 Sailen Krishna Majumdar vs. Malik Labhu Masih, 1989 (1) SCR 817, dated 21st February 1989.

“Equity is being claimed by both the parties. Under the circumstances we have no other alternative but to let the loss lie where it falls. As the maxim is, ‘in aequali jure melior est conditio possidentis’. Where the equities are equal, the law should prevail. The respondent’s right to purchase must, therefore, prevail.”
In the present case too, the complainant cannot claim interest from the developer, who had returned the Pay Order. As discussed, at the time of filing of the complaint, she could have chosen one among the various options to ensure that the amount presented to her was kept in an interest-bearing account, without prejudice to her rights to claim interest later. In these circumstances, no equities can be extended to her aid.
34. As regards the complainant’s appeal, the contention is that the impugned order is in error, because the Tribunal ought to have directed that the developer ought to have been directed to pay interest on the sum of ₹ 4,53,750/- from 4th October 1993 till the date of its realization i.e., 7th May 2016. This plea is plainly untenable, because the interest payable for the past period was concluded in the previous proceedings. The complainant did not point to any rule or binding legal principle which obliged the developer to pay such interest, or justify the direction in the impugned order, by showing how such liability arose in the facts and circumstances of this case.

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K L Suneja & ots vs DR. (MRS.) MANJEET KAUR MONGA (D) THROUGH HER LR & ANR_Judgement_31-Jan-2023 Supreme Court The Law literates

10Nov, 2023

Child adopted by government servant’s Hindu window, after his death, not ‘family’ under the (CCS Pension) Rules: Supreme Court

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A case where a child is born to the deceased government servant after his death has to be contrasted with a case where the widow of a government servant adopts a child after his death. The former category of heirs are covered under the definition of family since such a child would be a posthumous child of the deceased government servant. The entitlement of such a posthumous child is wholly distinct from a child being adopted subsequent to the demise of the government servant by the surviving spouse. The reason for the same is not far to see. This is because the deceased government servant would have had no relationship with the adopted child which would have been adopted subsequent to his demise, as opposed to a posthumous child. Therefore, the definition of the word “family” in relation to a 10 government servant means various categories of persons coming within the nomenclature of the word “family” and all persons who would have had a familial relationship with the government servant during his lifetime. Any other interpretation would lead to abuse of the provision in the matter of grant of family pension.

10Nov, 2023

Extra fine unwarranted where a Pakistani citizen turned Indian naturalized citizen bought property without giving notice to RBI

APPELLATE TRIBUNAL SAFEMA, NEW DELHI

Arjun Das Malhotra

Special Director Directorate of Enforcement, Delhi

MUNISHWAR NATH BHANDARI, CHAIRMAN
AND V. ANANDARAJAN, MEMBER

MP-FE-143/DLI/2022 (MISC.)
FPA-FE-86/DL1/2022

SEPTEMBER 5, 2023

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FEMA, BANKING & INSURANCE : Where appellant, a citizen of Islamic Republic of Pakistan holding a passport of that country was granted long term visa by Government of India and was subsequently, granted full citizenship as a naturalized citizen, and he purchased immovable property in India without taking any permission from RBI or any other Government body in contravention of regulation 7 of FEM (Acquisition and Transfer of Immovable Property in India) Regulations, 2000 and appellant paid penalty imposed by Adjudicating Authority, levy of further penalty of Rs. 50 thousand was not justified.

29Oct, 2023

Order 8 Rule 6A CPC Counter claim A counter claim must be against the plaintiff Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation

SATYENDER AND ORS. …..APPELLANTS (VERSUS)
SAROJ AND ORS. ………….,,,,.RESPONDENTS
CA 4833/22 17/08/22 [ SUPREME COURT OF INDIA ]

JUSTICE UDAY UMESH LALIT)
JUSTICE(S. RAVINDRA BHAT)
JUSTICE (SUDHANSHU DHULIA)

Order 8 Rule 6A CPC Counter claim A counter claim must be against the plaintiff Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. But then it has certain limitations such as that the counter claim cannot exceed the pecuniary limits of the jurisdiction of the court, and that such counter claim must be instituted before the defendant has delivered his defence or before the time limit for delivering his defence has expired.

Relevant Paras

7. The matter was taken in second appeal by the plaintiffs. The second appeal of the plaintiffs was partly allowed. Though the High Court in the second appeal upheld the findings of the two Courts on the sub-letting and tenancy and upheld the findings of the lower courts in favour of the defendants as there was no sub- letting of the land, yet in the same breath the High Court has allowed the claim of the plaintiffs on the two plots i.e., 21//3/2 and 7//13 for the reasons that for these two plots though the plaintiffs had raised their claim and the defendants had not raised any counter claim on these plot numbers, which went uncontested.
8. In addition, it was also held by the High Court that the counter claims set up by the defendant (on plot Nos. 6//18 and 23) could not be decreed since the plaintiffs themselves had not set up any claim whatsoever for these two plots, i.e., Killa No. 6//18 and 23 and therefore under provisions of Order VIII, Rule 6A of the Code of Civil Procedure 1908 (hereinafter referred to as “CPC”), an independent counter claim having nothing to do with the plaintiffs can never be allowed.
9. The defendants are now before this Court. The first ground raised by the counsel for the appellant/defendant before thisCourt is that the High Court while deciding a second appeal did not formulate any substantial question of law, which was an essential requirement under Section 100 of the CPC. The learned counsel would argue that a second appeal can only be admitted and heard on a substantial question of law and since no substantial question of law was formulated nor any arguments advanced by the parties before the Second Appellate Court (High Court) as mandated by Section 100 of the CPC, the order of the High Court is liable to be set aside on this ground alone. This seemingly attractive argument, however, does not hold any good in the present case as the subject matter of the present dispute is from Haryana where the governing provision would be Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC. This was held by a Constitution Bench of this Court in Pankajakshi & Ors. v. Chandrika & Ors.1 which was later followed in Kirodi v. Ram Parkash & Ors.2

10. Section 100 of the CPC as it stands today indeed mandates that a second appeal would lie before the High Court only on a substantial question of law, and a Second Appeal has to be heard
1 (2016) 6 SCC 157 2 (2019) 11 SCC 317
on the substantial question of law, so formulated by the High Court. The provision of second appeal as it stands today was inserted in the CPC by Amendment Act No. 104 of 1976. Prior to the 1976 amendment, there was no requirement of substantial question of law. The earlier, i.e., unamended position read as under: –
“100. Second appeal – (1) “Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this section from an appellate decree passed ex parte.”
Under the Punjab Courts Act, 1918, a similar provision is given as regards a second appeal. This is in Section 41 of the Act which is

in pari materia to the unamended Section 100 of the CPC and reads as follows: –
“41. Second appeal— (1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some custom or usage having the force of law:
(b) the decision having failed to determine some material issue of law or custom or usage having the force of law,
(c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits;
[Explanation. – A question relating to the existence or validity of a custom or usage shall be deemed to be a question of law within the meaning of this Section]

(2) An appeal may lie under this section from an appellate decree passed ex parte.”
11. Initially, it was held by this Court (in Kulwant Kaur v. Gurdial Singh Mann3) that after the 1976 Amendment, Section 100 of the CPC would be applicable in Punjab & Haryana and not Section 41 of the Punjab Courts Act, 1918 and a second appeal has to be decided only on a “substantial question of law”. It was held that after the 1976 Amendment Act, Section 41 of the Punjab Courts Act, stood repealed. Additionally, it was also held that Section 41 of the Punjab Courts Act was repugnant to Section 100 CPC in view of Article 254 of the Constitution of India.
12. As referred above, the present Section of the 100 CPC was inserted in the CPC by the Amendment Act of 1976. Section 97 of the Amendment Act of 1976 which was relied upon by this Court

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SATYENDER AND ORS VERSUS SAROJ AND ORS. Judgement_17-Aug-2022

26Oct, 2023

Juvenile Justice Care and Protection of Children Act, Section 102 Adoption of child Adoption cannot be denied on the ground that prospective parent is a single lady and a divorcee and she being a working lady will not be able to give personal attention to the child When the statute recognises a single parent to be eligible for being an adoptive parent

Shabnamjahan vs State Of Maharashtra CRA 127/22 11/04/23

[ CORAM: GAURI GODSE, JUSTICE] [ BOMBAY HIGH COURT ]

• Juvenile Justice Care and Protection of Children Act, Section 102 Adoption of child Adoption cannot be denied on the ground that prospective parent is a single lady and a divorcee and she being a working lady will not be able to give personal attention to the child When the statute recognises a single parent to be eligible for being an adoptive parent, the approach of the Competent Court defeats the very object of the statute Single or divorced person is eligible for taking a child in adoption Application is rejected only on one ground of the adoptive parent being a working lady.

Relevant Paras :

15. The learned Counsel for the Applicants has relied upon a decision of this Court in the case of Sumed s/o. Devidas Thamke and others1 in support of his submissions. In the said case adoption application was rejected by the Competent Court on the ground that since the child was neither a child in conflict with the law, nor a child in need of care and protection, nor an orphan, nor a surrendered/ abandoned child, the provisions of JJ Act were not applicable. This Court, after referring to various provisions of the JJ Act, held that the JJ Act is also applicable for the adoption of a child by a relative from another relative.
16. In the present case, the Competent Court has rejected the application only on the ground that the prospective parent is a single lady and a divorcee, and she being a workinglady, will not be able to give personal attention to the child per contra the biological parents would be in a better condition to take care of the child. Section 57 of the JJ Act provides the eligibility criteria of a prospective parent. Sub- section (3) of Section 57 holds a single or divorced person eligible for taking a child in adoption. Sub-section (1) of Section 57 states that the prospective adoptive parent shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child to provide a good upbringing to the child. Thus, the reason given by the Competent Court is not only contrary to the provisions of the JJ Act but is also contrary to the recommendation made by the District Child Welfare Officer and the Assistant Director of CARA. Even otherwise, the reason given by the Competent Court is unfounded and baseless.
17. The Competent Court was required to verify whether the statutory requirements were complied with and, after scrutinising the record of the proceedings, form an opinion as to whether the application for adoption was in the interest of the child. The Competent Court has erroneouslyrejected the application by doing guesswork. The comparison done by the Competent Court between the biological mother being a housewife and the prospective adoptive mother (single parent) being a working lady reflects a mindset of the medieval conservative concepts of a family. When the statute recognises a single parent to be eligible for being an adoptive parent, the approach of the Competent Court defeats the very object of the statute. Generally, a single parent is bound to be a working person, maybe with some rare exceptions. Thus, by no stretch of the imagination, a single parent can be held to be ineligible to be an adoptive parent on the ground that he/she is a working person.

18. There is nothing adverse shown to me for rejecting the application for adoption. A perusal of the record shows that all the statutory compliances are done. The report of the District Child Welfare Officer and the pre-approved letter issued by the Assistant Director of CARA have found the prospective adoptive parent to be a fit parent for adopting the child. The impugned Order does not record anything
adverse regarding the statutory compliances. The application is rejected only on one ground of the adoptive parent being a working lady. The reason recorded by the Competent Court is unfounded, illegal, perverse, unjust and unacceptable.

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Miss Shabnamjahan D:o. Moinuddin Ansari vs state of Maharashtra