Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case where Club Factory was involved in the sale of various unauthorized/ counterfeited products, bearing the registered marks of Louis Vuitton, the Single Judge Bench of Prathiba M. Singh, J. awarded costs of Rs. 20 lakhs in favour of Louis Vuitton, though the bill placed on record showed a total claim of over Rs. 32 lakhs.

Background

The present matter had been listed for 3-11-2022, for ex-parte evidence in respect of the relief of damages. However, counsel for the plaintiff submitted that owing to certain sensitivity, the plaintiff only wished to press for costs and not for damages, even though, the suit was decreed in Louis Vuitton Malletier v. Futuretimes Technology India Private Limited, 2022 SCC OnLine Del 888, qua permanent injunction.

The decree that had been passed was as follows:

  1. a decree for permanent injunction was passed in favour of the plaintiff and restraining the defendants from importing, manufacturing, warehousing, selling and/or offering for sale, advertising, directly or indirectly dealing, in any manner, in any goods, including facemasks, etc. bearing the registered trade marks “LOUIS VUITTON”, “LV” logo, Toile monogram pattern, Damier pattern and/or LV Flower pattern or any similar trade mark amounting to an infringement of registered trade marks, on any platform whatsoever, including its website www.clubfactory.com, mobile apps, social media platforms, etc;

  2. doing any other act which amounted to passing off of the defendant’s products as those of the plaintiff;

  3. using trade marks, patterns, labels, logos or devices, which were identical or deceptively or confusingly similar to the plaintiff’s trade marks “LOUIS VUITTON”, the “LV” logo, the “Toile monogram” pattern, the Damier pattern and/or the LV Flower patterns (the said trade marks) or any similar trade marks so as to misrepresent the quality/ origin of their goods and from taking unfair advantage of the plaintiffs reputation and goodwill in the said trade marks or any similar trade mark thereby causing dilution and tarnishment of the plaintiff’s trade marks.

  4. Directed Department of Telecommunications and Ministry of Electronics and Information Technology to issue instructions to all ISPs to block the website www.clubfactory.com, so that the same was not accessible through VPN or other platforms.

Decision

The Court noted that the bill of costs placed on record showed that the total cost claimed was Rs. 32,29,416 but after considering the facts, the Court awarded Rs. 20,00,000 as costs to the plaintiffs.

[Louis Vuitton Malletier v. Futuretimes Technology India Private Limited, 2022 SCC OnLine Del 3862, decided on 3-11-2022]


Advocates who appeared in this case :

For the Plaintiff(s): Advocate Pravin Anand;

Advocate Dhruv Anand;

Advocate Nimrat Singh;

Advocate Udita Patro.

competitive exam
Case BriefsHigh Courts

   

Delhi High Court: In a suit for permanent injunction and damages for infringement of marks, passing off and unfair competition in relation to the mark ‘DAWAT/DAWAAT’, the Single Judge Bench of Prathiba M. Singh, J. awarded Rs. 25 lakhs as damages and costs in favour of the plaintiff and held that the defendant was manufacturing and selling counterfeit ‘DAAWAT’ branded products with dishonest intention.

Facts of the Case

The plaintiff was engaged in the business of processing, marketing, and exporting food products including rice and had a strong distribution network in all major Basmati Rice consuming cities in India and in foreign countries including USA, Canada, UK, and EU. Some of the well-known brands used by the plaintiff were HERITAGE, DAWAT, DAAWAT, DAAWAT DEVAYA, DAAWAT BESTOW, ORANGE, DEVAAYA, CHEF’s SECRET, SONA, ROYAL, etc. The present suit was related to the trade marks ‘DAWAT/DAAWAT’ which were used in respect of rice and were registered in both word mark and device mark since 1987.

Submissions on behalf of the Plaintiff

It was contended that the defendant was selling, storing, and distributing counterfeit ‘DAAWAT’ branded products, and the plaintiff came to know about this in 2021 when they purchased the defendant’s product. Upon examination, it was revealed that even though the product claimed to be Basmati Rice, it was Jawaphool Rice and did not match the standards of Basmati Rice, which was of high quality. Moreover, the same was being branded as Basmati Rice and sold in ‘DAAWAT CHED’s SECRET BASMATI RICE’ branded product packaging and the packaging of the product of the defendant was identical to the product of the plaintiff.

Analysis, Law, and Decision

On 7-9-2021, an ex-parte ad interim injunction was passed, and a Local Commissioner was appointed to visit the premises of the defendant and prepare an inventory of the infringing goods. The report and images produced by the Local Commissioner revealed that a total of 89 packets of distinct types of rice, bearing the mark ‘DAAWAT’ were found in the defendant’s premises, proving that the defendant’s product packaging was nothing but a counterfeiting packaging of the plaintiff’s ‘DAAWAT’ products.

The Court opined that the defendant was clearly indulging in violation of the plaintiff’s statutory and common law rights in the marks ‘DAWAT/DAAWAT’. Moreover, the product involved was rice for human consumption, therefore, the misrepresentation by the defendant that its product was Basmati Rice, was also impermissible.

The Court stated that the report by the Local Commissioner could be read into evidence under Order XXVI Rule 10(2) of Civil Procedure Code, 1908 (CPC). The Court relied on M.L. Brother LLP v. Mahesh Kumar Bhrualal Tanna, 2022 SCC OnLine Del 1452, wherein it was held by this Court that “Order XXVI Rule 10(2) CPC stipulates that the report of the Commissioner and the evidence taken by the Commissioner shall be evidence in the suit and shall form part of the record”.

After taking into consideration the report of the Local Commissioner, the evidence which was collected by the Local Commissioner and the non-filing of the written statement by the defendants, the Court opined that the no ex-parte evidence was required in this case.

On the relief of costs and damages, the Court held that defendant’s counterfeiting was contrary to law and was diluting the reputation and goodwill of the plaintiff’s marks. Moreover, after considering the amount of seizure made, the nature of the counterfeiting indulged into by the defendant, the costs incurred by the plaintiff for executing the local commission and the court fees deposited, it was clear that the plaintiff’s mark and business had been diluted due to infringing use. Therefore, the Court decreed the suit for a sum of Rs. 25,00,000 towards damages and costs.

[LT Foods Limited v. Saraswati Trading Company, 2022 SCC OnLine Del 3694, decided on 11-11-2022]


Advocate who appeared in this case:

For the Plaintiff(s): Advocate R. Abhishek.

Case BriefsSupreme Court

   

Supreme Court: In a suit for specific performance the Division Bench of Indira Banerjee* and Hrishikesh Roy, JJ., explained the terms willingness and readiness to pay. Reversing the concurrent orders of the Courts below, the Court held that the Respondent Plaintiff may have been willing to perform his part of the contract, it however appears that he was not ready with funds and was possibly trying to buy time to discharge his part of the contract. The Court noted,

“Making a subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff's readiness to discharge his part of the contract.”

Background

The Respondent Plaintiff alleged that there was an agreement between him and the appellant to sell the disputed property for a consideration of Rs.15,10,000 out of which he had paid a sum of Rs.10,001 in advance. It was further agreed between the parties, that the Respondent Plaintiff would get the sale deed registered on or before 15-03-2003 upon payment of the full sale consideration.

The genesis of the case was that though the Respondent Plaintiff had approached the appellant with the balance consideration several times and requested to execute the sale deed in his favour, the appellant kept postponing the execution of the sale deed on one pretext or the other. On the contrary, the appellant contended that the Respondent Plaintiff was never ready or willing to perform his part of the contract.

Impugned Decision

The Trial Court found that the Respondent Plaintiff was ready and willing to perform his part of the contract, and thus entitled to the relief of specific performance. Therefore, the Trial Court decreed the suit and directed the appellant to receive the balance sale consideration of Rs.15 lakhs and execute the sale deed in favour of the Respondent Plaintiff. The Trial Court's decision was affirmed by the Madras High Court in appeal.

Willingness and Readiness to Pay

Section 16 (c) of the Specific Relief Act, 1963 (prior to amendment w.e.f. 01-10-2018) bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of the contract.

The Court noted that to aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that he has sufficient funds or is in a position to raise funds in time to discharge his obligation under the contract.

Relying on Acharya Swami Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526, the Court opined that there is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff.

Considering that no evidence was adduced on behalf of the Respondent Plaintiff as to how he was in a position to pay or make arrangements for payment of the balance sale consideration within time; as his balance sheet dated 31-03-2003 revealed that he did not have sufficient funds to discharge his part of the contract, the Court held that the Courts below have erred in not adjudicating upon this vital issue except to make a sweeping observation that, given that the Respondent Plaintiff was a businessman he had sources to arrange the balance funds.

Limitation Period

Following the findings in Saradamani Kandappan v. S. Rajalakshmi, (2011) 12 SCC 18, the Court opined that while exercising discretion in suits for Specific Performance, the Courts should bear in mind that when the parties prescribed a time for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored. Similarly, every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement.

Hence, the Court opined that the fact that the limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The Court observed that the three-year period is intended to assist the purchaser in special cases, i.e., where the major part of the consideration has been paid and possession has been delivered in part performance, where equity shifts in favour of the purchaser.

“The courts will also frown upon suits which are not filed immediately after the breach/refusal.”

Accordingly, the Court held that the fact that the suit had been filed after three years, just before expiry of the period of limitation, was also a ground to decline the Respondent Plaintiff the equitable relief of Specific Performance for purchase of the immovable property.

Additionally, the Court noted that the Court could not overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru and there is a phenomenal rise in the price of real estate in Hosur.

Conclusion

In view of the foregoing, the Court held that the Respondent Plaintiff was not entitled to the relief of specific performance. The appeal was allowed and the impugned judgment of the High Court, as well as the judgment and decree of the Trial Court, were set aside.

The appellant was directed to return the earnest money to the Respondent Plaintiff, within 4 weeks with interest at the rate of 7% per annum from the date of deposit of the same, till the date of refund.

[U.N. Krishnamurthy v. A.M. Krishnamurthy, 2022 SCC OnLine SC 840, decided on 12-07-2022]

*Judgment by: Justice Indira Banerjee


Advocates who appeared in this case :

Senior Advocate Krishnan Venugopal with AOR Mahesh Thakur, Advocates, for the Appellants;

N.D.B Raju with AOR M.A. Chinnasamy, Advocates, for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Manjari Nehru Kaul, J., while dealing with a revision petition for setting aside the order passed by the Civil Judge in Execution Petition held that the petitioner was unable to bring any material that showed that other co-owners were not agreeable to take possession.

The petition was filed for setting aside the order dated 23-05-2022 whereby objections under Order 47 read with Section 151 of the Code of Civil Procedure, 1908 preferred by the petitioners were dismissed.

Facts:

The suit land is in the joint ownership of respondents and other co-owners as per the entries recorded in the ownership column of the jamabandi for the year 2012-2013. There has never been any partition of the suit land.

Arguments:

The counsel for the petitioner contended that the impugned order passed by the Civil Judge was a manifest error of law. Further, he contended that since the suit land was jointly owned, the respondents cannot seek possession of land beyond the extent of their respective shares. It was also contended that there was a non-compliance of Order 1 Rule 8 of the Code by the trial Court while passing the decree, where there were a large number of persons involved having common interest in a suit and the respondent did not take permission from Court to act on behalf of others. Hence, the decree cannot be executed.

Issues:

Whether one of the co-owners acting on behalf of others constitute a proceeding that has to follow Order 1 Rule 8 of the Code?

Whether an application under Order 47 read with Section 151 can be entertained where the consent of co-owners has been assumed?

Whether one owner out of the co-owners seek possession of the entire joint land as an agent of the other co-owners?

Observations and Analysis:

The Court relied on India Umbrella Mfg. Co. v. Bhagabandei Agarwalla, (2004) 3 SCC 178 and Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 2 SCC 724 and held that “any one owner out of the co-sharers can seek possession of the entire joint land. Such co-owner would do so on his own behalf, in his own right and as an agent of other co-owners. The consent of the other co-owners would be assumed to have been taken unless it is shown to the contrary that co-owners were not agreeable and despite their disagreement, a suit had still been instituted.”

The Court also noted that the petitioner has failed to bring to the notice any material to substantiate his claim that co-owners were not agreeable to take possession.

The Court observed that the scope of interference in execution proceedings is very limited and the Court could not go behind the decree.

[Siriya v. Tulsi Puri, 2022 SCC OnLine P&H 1872, decided on 21-07-2022]


Advocates who appeared in this case :

Mr. Munish Kumar Garg, Advocate, for the Petitioner.

Case BriefsSupreme Court

Supreme Court: The bench of KM Joseph* and PS Narsimha, JJ was called upon to decide whether the Award passed by a Lok Adalat under 0 can form the basis for redetermination of compensation as contemplated under Section 28A of the Land Acquisition Act, 1894. The Court held that an application under Section 28A of the LA Act cannot be maintained on the basis of an award passed by the Lok Adalat under Section 20 of LSA Act.

Scheme of Section 20 of the LSA Act

The jurisdiction of the Lok Adalat under Section 20 is to facilitate a settlement of disputes between the parties in a case. It has no adjudicatory role. It cannot decide a lis. All that it can do is to bring about a genuine compromise or settlement. Sub-Section (4) of Section 20 is important insofar as the law giver has set out the guiding principles for a Lok Adalat. The principles are justice, equality, fair play and other legal principles. The significance of this provision looms large when the Court bears in mind the scheme of Section 28A of the Act.

Scheme of Section 28A of LA Act

Section 28A contemplates a redetermination of compensation under an award passed under Part III. Section 23 deals with the matters to be taken into consideration. Various aspects including the market value on the date of the notification under Section 4(1) are indicated. The elements of Section 23 are not in consonance as such with the guiding principles set out in Section 19(4) of the LSA Act which are to guide a Lok Adalat. When the Court deals with the matter under Section 18, in other words, it is bound to look into the evidence and arrive at findings based on the evidence applying the legal principles which have been enunciated and arrive at the compensation. While it may be true that there is reference to ‘other legal principles’ in Section 19(4) of the LSA Act, the Lok Adalat also can seek light from the principles of justice, equity, and fair play. The Lok Adalat by virtue of the express provisions is only a facilitator of settlement and compromise in regard to matters which are referred to it. It has no adjudicatory role.

Analysis

A plea founded on estoppel arising out of a consent decree or from an Award passed by a Lok Adalat which can perhaps be even likened to a consent decision cannot be the basis for redetermination of the compensation. What Section 28A indeed insists is on decision by a Civil Court as defined in Section 2(l). In other words what is made the only basis for invoking Section 28A of the Act is an adjudication by the Court as defined in the Act. The plea of estoppel which, ordinarily, arises from a consent decree or Award passed by the Lok Adalat which, does not involve any adjudication by a Court, would hardly suffice. The estoppel which is referred to by this Court applies as between the parties to the consent decree.

An Award passed by the Lok Adalat under LSA Act is the culmination of a non-adjudicatory process. The parties are persuaded even by members of the Lok Adalat to arrive at mutually agreeable compromise. The Award sets out the terms. The provisions contained in Section 21 by which the Award is treated as if it were a decree is intended only to clothe the Award with enforceability. In view of the provisions of Section 21 by which it is to be treated as a decree which cannot be challenged, undoubtedly, by way of an appeal in view of the express provisions forbidding it, unless it is set aside in other appropriate proceedings, it becomes enforceable. The purport of the law giver is only to confer it with enforceability in like manner as if it were a decree.

On the argument that by virtue of this legislative device, the award of the Lok Adalat passed in these cases by the Reference Court under Section 18 executing the Lok Adalat must be treated as an order passed by the Court under Section 28A of the Act, the Court said,

“Can the Court be oblivious to the plain language of the statute? Can we ignore the voice of the legislature when it is clear and unambiguous? Section 28A figures in Part III of the Act. It has a heading. The heading reads as ‘Redetermination of the amount of compensation on the basis of the award of the Court’. The very opening words in our view deal a fatal blow to the very premise of the respondent’s contention. An award under Part III of the Act commences with a reference under Section 18. The Court proceeds to adjudicate the reference in particular by bearing in mind the matters which are to be considered under Section 23 of the Act.”

The award which is passed by the Lok Adalat cannot be said to be an award passed under Part III. It is the compromise arrived at between the parties before the Lok Adalat which culminates in the award by the Lok Adalat. In fact, an award under Part III of the Act contemplates grounds or reasons and therefore, adjudication is contemplated and Section 26(2) of the Act is self-explanatory.

“The Award passed by the Lok Adalat in itself without anything more is to be treated by the deeming fiction to be a decree. It is not a case where a compromise is arrived at under Order XXIII of the Code of Civil Procedure, 1908, between the parties and the court is expected to look into the compromise and satisfy itself that it is lawful before it assumes efficacy by virtue of Section 21. Without anything more, the award passed by Lok Adalat becomes a decree. The enhancement of the compensation is determined purely on the basis of compromise which is arrived at and not as a result of any decision of a ‘Court’ as defined in the Act.”

Hence, an Award passed under Section 19 of the 1987 Act is a product of compromise. Sans compromise, the Lok Adalat loses jurisdiction. The matter goes back to the Court for adjudication. Pursuant to the compromise and the terms being reduced to writing with the approval of the parties it assumes the garb of an Award which in turn is again deemed to be a decree without anything more.

[NOIDA v. Yunus, 2022 SCC OnLine SC 138, 03.02.2022]


*Judgment by: Justice KM Joseph


Counsels

For appellant: Anil Kaushik, learned counsel for the appellant.

For respondents: Senior Advocates Dhruv Mehta and V. K. Shukla

Akaant MittalExperts Corner

In the previous column, we had covered how the position of law was inconsistent with respect to a decree as a foundation for a financial debt. The same is now finally put to rest by the ruling of the Supreme Court in Dena Bank v. C. Shivakumar Reddy[1].

 

While a decree can now be the basis of a financial debt, we will proceed with the position of law with respect to an arbitral award or a decree forming the basis for an operational debt.

 

The position here seems aligned with what the Supreme Court had held in the above-discussed ruling in Dena Bank[2]. In Usha Holdings LLC v. Francorp Advisors (P) Ltd.[3], an issue arose if a debt is based on a decree which was passed by a foreign court. In such circumstances, while it was held that an adjudicating authority cannot decide the legality and viability of such a decree, the NCLAT further held that the same does not mean that the need for establishing a relation between operational creditor and the corporate debtor is waived off. The NCLAT required that such decree must pertain to or relate to supply of goods or services, and the failure to establish such link led to the rejection of the application under Section 9, IB Code.[4]

 

The NCLAT then presented even a clearer picture on this issue in Ashok Agarwal v. Amitex Polymers (P) Ltd.,[5] when the issue of whether a consent decree falls under the definition of operational debt was raised. The NCLAT herein relied upon the definition of a creditor as stated in Section 3(10) to conclude that a “decree-holder” cannot be excluded from the definition of an “operational creditor” under Section 5(20) of the IB Code. Resultantly, the order of the adjudicating authority was set aside and the claim of the appellant — operational creditor based on the consent decree was found to be an operational debt.

 

By doing so, the NCLAT ended up distinguishing its own ruling in Digamber Bhondwe v. JM Financial Asset Reconstruction Co. Ltd. [6], wherein in a case under Section 7, it was held that a decree-holder does not fall under the definition of a financial creditor. The NCLAT in Digamber Bhondwe case[7] had held:

  1. 22. [W]e further reject the submission that because in Section 3(10) of I&B Code in definition of “creditor” the “decree-holder” is included it shows that decree gives cause to initiate application under Section 7 of I&B Code. Section 3 is in Part I of I&B Code. Part II of I&B Code deals with “insolvency resolution and liquidation for corporate person”, and has its own set of definitions in Section 5. Section 3(10) definition of “creditor” includes “financial creditor”, “operational creditor” “decree-holder”, etc. But Section 7 or Section 9 dealing with “financial creditor” and “operational creditor” do not include “decree-holder” to initiate corporate insolvency resolution process (CIRP) in Part II.

 

The opinion in Ashok Agarwal[8] seems to be supported by Form V of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, which expressly directs, under the heading “particulars of operational debt (documents, records and evidence of default)”, the operational creditor to disclose before the adjudicating authority the particulars of an order of a court, tribunal or arbitral panel adjudicating on the default, if any.

 

Part-V

Particulars of Operational Debt (Documents, Records and Evidence of Default)

1.

Particulars of security held, if any, the date of its creation, its estimated value as per the creditor

Attach a copy of a certificate of registration of charge issued by the Registrar of Companies (if the corporate debtor is a company)

 

2.

Details of reservation/retention of title arrangements (if any) in respect of goods to which the operational debt refers  

3.

Particulars of an order of a court, tribunal or arbitral panel adjudicating on the default, if any (attach a copy of the order)  

4.

Record of default with the information utility, if any (attach a copy of such record)  

5.

Details of succession certificate, or probate of a will, or letter of administration, or court decree (as may be applicable), under the Succession Act, 1925 (10 of 1925) (attach a copy)  

6.

Provision of law, contract or other document under which operational debt has become due  

7.

A statement of bank account where deposits are made or credits received normally by the operational creditor in respect of the debt of the corporate debtor (attach a copy)  

8.

List of other documents attached to this application in order to prove the existence of operational debt and the amount in default  

Therefore, a legal provision itself stipulates that an order of a court/tribunal/arbitral panel with regard to a default committed by a debtor could show the particulars of an “operational debt”.

 

In G. Shivramkrishna v. Isgec Covema Ltd.,[9] the NCLAT specifically calculated the limitation to file an application under Section 9 of the IB Code by taking into account the relevant dates of the arbitral award.[10] The arbitral award was passed on 30-5-2013, and the application for setting aside the award under Section 34 of the Arbitration law was dismissed on 27-1-2016 and the time to file the appeal under Section 37 lapsed on 27-4-2016. The application under Section 9 was filed on 3-4-2019. The NCLAT taking this relevant dates concluded that the application was within limitation. The argument that an application under Section 9 could not be filed for the purposes of execution of the arbitral award was rejected to hold :

by passing award by the learned sole arbitrator, the amount has been crystalised and by default in payment and by not honouring the award, the amount became due and payable. Respondent 1 had rightly invoked jurisdiction of the adjudicating authority under Section 9 of the IBC after issuance of demand notice as prescribed under Section 8 of IBC…”

 

The fundamentals, however, must remain that the decree or the award must be on account of an operational debt i.e. on account of providing a good or a service. In G. Shivramkrishna[11], the underlying debt pertained to a work order.

 

The only practical issue with basing the claim for an operational debt on an arbitral award or a decree is the fact that any challenge to an arbitral award (be it under Section 34 or Section 37 of the Arbitration and Conciliation Act, 1996) or any appeal against a decree may end up showing that there is a pre-existing dispute between the parties.[12] Otherwise, it is submitted that there is no general bar on relying on an arbitral award or decree to establish an operational debt. The Supreme Court in its ruling in K. Kishan v. Vijay Nirman Co. (P) Ltd.[13] had clarified that in cases where the creditor could show that a petition under Section 34 challenging an arbitral award is barred by limitation, in only such circumstances, the insolvency process may then be put into operation. As seen in the facts and circumstances in G. Shivramkrishna,[14] the same could still be achievable.


Akaant Kumar Mittal is an advocate at the Constitutional Courts, and National Company Law Tribunal, Delhi and Chandigarh. He is the author of the commentary “Insolvency and Bankruptcy Code – Law and Practice”.

[1] (2021) 10 SCC 330.

[2] (2021) 10 SCC 330.

[3] 2018 SCC OnLine NCLAT 792.

[4] 2018 SCC OnLine NCLAT 792, paras 12 and 13.

[5] 2021 SCC OnLine NCLAT 49.

[6] 2020 SCC OnLine NCLAT 399.

[7] 2020 SCC OnLine NCLAT 399.

[8] 2021 SCC OnLine NCLAT 49.

[9] 2020 SCC OnLine NCLAT 909.

[10] In this case, the limitation was calculated in the following manner:

  1. [E]ven the award was passed on 30-5-2013….

*                                   *                                   *

  1. the learned XXIV Additional Chief Judge, City Court, Hyderabad, dismissed the petition [under Section 34 of the Arbitration and Conciliation Act, 1996] on 27-1-2016 and the statutory period for filing appeal under Section 37 of Arbitration and Conciliation Act is 90 days in case of decree. The appeal under Section 37 of the Arbitration and Conciliation Act excludes the limitation from 27-4-2016 i.e. 90 days from 27-1-2016 as per Article 116 of the Limitation Act and if three years is taken from 27-1-2016, following the judgment of the Supreme Court in the above decision (B.K. Educational … supra) and as per Article 137 of the Limitation Act, three years’ period would expire on 27-4-2019. Whilst, the application under Section 9 of the IBC filed on 3-4-2019. Accordingly, it is well within the period of limitation. (Additions supplied)

[11] 2020 SCC OnLine NCLAT 909.

[12] See for instance Jai Balaji Industries v. D.K. Mohanty, Civil Appeal No. 5899 of 2021, decided on 1-10-2021(SC). Where pending appeal under Section 37 of the Arbitration and Conciliation Act, 1996 was held to show pre-existing dispute.

[13] (2018) 17 SCC 662, para 19.

[14] 2020 SCC OnLine NCLAT 909.

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of J.B. Pardiwala and Niral R. Mehta, JJ., while dealing with a matter regarding restitution of conjugal rights, stated that,

Section 281 of the Muhammadan Law deals with the aspect of the restitution of conjugal rights but does not throw any light as to in what circumstances, a decree for restitution of conjugal rights can be granted or declined.

Further, the Bench expressed that,

 A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.

The present appeal was filed under Section 19 of the Family Courts Act, 1984 by the original defendant-wife questioning the legality and validity of the order passed by the Family Court on suit instituted by respondent-husband for restitution of conjugal rights whereby the family court allowed the suit instituted by the husband directed the appellant-wife to go back to her matrimonial home and perform her marital obligations.

Background

Respondent-husband’s case was that his wife left matrimonial home along with their minor son without any lawful ground and further even without informing anyone. All the efforts to bring back the wife failed and further the husband issued a legal notice to his wife, but the wife failed to respond.

In view of the above circumstances, the husband instituted a family suit invoking Section 282 of the Mohammedan Law for the restitution of the conjugal rights.

Family Court allowed the suit and passed a decree for restitution of conjugal rights in favor of the husband.

Further, the Family Court stated that the wife was a working lady and was not able to cope up with her household responsibilities, she thought fit to walk out of her matrimonial home on a lame excuse of being harassed by her husband and the other family members of husband.

Wife’s case was that she was being pressurized to migrate and settle in Australia considering that the appellant was a qualified nurse, and she may be able to secure a good job there. The appellant was dead against such idea of her husband and her in-laws and outright declined to leave her job at Palanpur and prepare herself to go to Australia.

The above stated was the cause of matrimonial disputes.

Analysis, Law and Decision

High Court observed that Family Court owes a duty to read something in between the lines so as to try to understand the root cause of the discord between the parties rather than going by the strict rules of evidence.

The different High Courts have held that the Family Court deals with disputes concerning the family and should adopt an approach radically different from that adopted in any ordinary civil proceedings.

Bench opined that the present matter is not the one in which it could be said that the wife left her matrimonial home along with her minor child with the intention to desert the husband.

It was clear that the wife was not comfortable at her matrimonial home on account of various domestic issues. If on account of all such problems, one fine day, she decided to walk out of her matrimonial home, could it be said that the husband straightway was entitled to have a decree for restitution of conjugal rights.

Court also stated that, the decision in a suit for the restitution of conjugal rights does not entirely depend upon the right of the husband.

When can restitution be refused?

The wife can set up the following defences to a suit for restitution of conjugal rights:

(1) That the marriage between the parties was not a valid marriage or is no longer binding. The existence of a valid matrimonial relationship is an essential condition for a decree in the suit. If the marriage is not valid (i.e., either irregular or void) restitution will not be allowed. So also if subsequently, the marriage has terminated, for example by reason of the husband having become an apostate or by the exercise by the wife of the option, on attaining puberty, of repudiating her marriage or of a power to the wife to divorce, restitution will be refused.

(2) That the husband was guilty of legal cruelty. For legal cruelty, “there must be actual violence of such a character as to endanger personal health or safety or there must be reasonable apprehension of it. A simple chastisement on one or two occasions would not amount to such cruelty. The Mohammedan law on the question of what is legal cruelty between man and wife does not differ materially. A good deal of ill-treatment, even if it is short of cruelty, may amount to legal cruelty. If the Court is of opinion that by the return of the wife to the husband, her health and safety would be in danger.

(3) That the husband made a false charge of adultery against the wife. Restitution will not, however, be refused if the charge was true.

(4) That there was gross failure by the husband in the performing of the matrimonial obligations imposed upon him for the benefit of the wife. Cruelty is not the sole defence. The Mohammedan wife has got better rights than the English wife. The Court may well admit defences founded on the violation of those rights. Conduct falling for short of legal cruelty (e.g. charges of immorality and heaping of insults) may be a good defence to a suit by the husband. In fact any reprehensible conduct on the part of the husband affords grounds for refusing to him the assistance of the Court. Expulsion of the husband from caste has been held to be sufficient ground for refusing restitution of conjugal rights. But the mere fact that the wife cannot get on with mother of the husband would not be sufficient ground.

(5) That, where the marriage has not been consummated, her prompt dower has not been paid. This would be a means for securing the payment of dower by the husband.

High Court elaborated stating that in a suit for restitution of conjugal rights by a Muslim husband against his wife, if the Court after a review of the evidence feels that the circumstances reveal that the husband had been guilty of unnecessary harassment caused to his wife or of such conduct as to make it inequitable for the Court to compel his wife to live with him, it will refuse the relief.

Court’ opinion on Polygamy

Muslim law permits the polygamy but has never encouraged it. The Muslim law, as enforced in India, has considered polygamy as an institution to be tolerated but not encouraged and has not conferred upon the husband any fundamental right to compel his wife to share his consortium with another woman in all circumstances.

The object behind Order XXI Rule 32(1) and (3) CPC is that no person can force a female or his wife to cohabit and establish conjugal rights. If the wife refuse to cohabit, in such case, she cannot be forced by a decree in a suit to establish conjugal rights.

 Conclusion

High Court while concluding held that it should interfere with the impugned decision passed by the Family Court, hence the present appeal succeeded and the Family Suit instituted by the husband for restitution of conjugal rights invoking Section 282 of the Muhammadan Law was dismissed.[Jinnat Fatma Vajirbhai Ami v. Nishat Alimdbhai Polra, 2021 SCC OnLine Guj 2075, decided on 20-12-2021]


Advocates before the Court:

MR CHETAN K PANDYA(1973) for the Appellant(s) No. 1

KEWAL J SHAH(9579) for the Defendant(s) No. 1

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., held that,

Section 36 of the 1996 Act makes the arbitral award capable of being enforced in a like manner as a decree without any further judicial intervention.

Instant petition was filed under Section 226 of the Constitution of India principally seeking a writ of certiorari for quashing of the order passed by the Special Judge, SC/ST Act arising out of Execution Case.

Question for Consideration

Whether an order passed by the executing court during the course of enforcement of an arbitral award would be amenable to a writ of certiorari under Article 226 of the Constitution of India?

Analysis, Law and Decision

The A&C Act, 1996 was enacted to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation.

In terms of Section 36 (1) where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the court.

When the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), the award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the Court.

Therefore, the enforcement of an arbitral award under the 1996 Act, is to be made as per the terms of Section 36 and, unlike the 1940 Act, there was no requirement of filing an application to make the award a rule of the Court. Under the said Act, it would not be possible to resist the enforcement of an award by contending that the award has not been converted into a decree for the reason that the award has now to be enforced as per the procedure under the CPC in the same manner as if it were a court decree.

Question as to whether the award of the arbitrator under the 1996 Act tantamount to a decree or not was considered in Leela Hotels Ltd. v. Housing and Urban Development Corporation Ltd., (2012) 1 SCC 302, wherein it was held that the language used in Section 36 makes it clear that such an award has to be enforced under the CPC, in the same manner as if it were a decree of the Court. “…the language of the section leaves no room for doubt as to the manner in which the award of the arbitrator was to be accepted.”

“…provision for enforcement of an award, as per terms of Section 36, having been provided for in the same manner as if it were a decree of the court, it would follow that the court enforcing the award would exercise powers under the CPC which are available to a court executing a decree. This power would not be limited or trammelled by any other provision of the Act, 1996.”

Court added that execution is the enforcement of decree by a judicial process which enables the decree-holder to realise the fruits of the decree in his favour. The court enforcing the award would be a civil court exercising judicial powers and the orders to be passed in these proceedings would be judicial orders.

Whether judicial orders of a civil court would be amenable to writ jurisdiction under Article 226 came up for consideration in the case of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423.

The law laid down in the nine-Judge Constitution Bench in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 was also referred, wherein after considering the history of writ of certiorari and various English and Indian decisions, a conclusion was drawn that “certiorari does not lie to quash the judgements of inferior courts of civil jurisdiction”.

3-Judge Bench in the case of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 extensively referring to the legal position on the scope of writ of certiorari concluded that orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts.

In the above decision, expression “inferior court” is not referable to judicial courts and accordingly judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 and a writ of mandamus does not lie against a private person not discharging any public duty. It was also held that the scope of Article 227 is different from Article 226.

In view of the above, the legal position that emerged was that,

Judicial orders of civil court would not be amenable to writ jurisdiction under Article 226 and that challenge thereagainst can be raised under Article 227.

 High Court held that an order passed by the executing court in proceedings for enforcement of an arbitral award under Section 36 of the Act 1996, being a judicial order passed by a civil court of plenary jurisdiction, the same would not be amenable to a writ of certiorari under Article 226 of the Constitution of India. [Magma Leasing Ltd. v. Badri Vishal,  2021 SCC OnLine All 806, decided on 18-11-2021]


Advocates before the Court:

Counsel for Petitioner: C.K. Parekh

Counsel for Respondent: S.C., Shri Prakash Dwivedi

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., decided a matter concerning dishonour of cheque.

Petitioner had filed a suit for recovery of Rs 1,65, 75,000 under Order XXXVII of the Code of Civil Procedure, 1908.

Background

Managing Director and other Directors of the respondent/defendant persuaded the petitioner/plaintiff to give friendly loans at an interest @18% per annum. Petitioner and his wife gave Rs 18,00,000 from the bank account to Hari Om Anand as the Managing Director of the respondent/defendant.

At the request of Hari Om Anand, the petitioner/plaintiff also started looking after the legal consultation work of the respondent/defendant and the Managing Director and other Directors. Subsequently, the petitioner/plaintiff gave another friendly loan of Rs 3,20,00,000 from his bank account to Hari Om Anand and continued to take care of the legal work.

Further, Petitioner/Plaintiff submitted that 6 cheques were issued by Hari Om Anand. The said cheques were dishonoured on presentation due to insufficient funds. The petitioner/plaintiff filed a criminal case under Section 138 NI Act.

The above was preceded by a notice to which no reply was sent.

In an appearance respondent/defendant offered to furnish a corporate guarantee duly signed by the Managing Director and duly authorized by the Board Resolution relating to immovable properties, for securing the suit amount and the restrain order was filed.

Present petition was filed against two orders of the trial court.

Vide an Order dated 28-7-2020, this Court observed that the trial Court had erred in not securing the amount of Rs 1.5 crores as directed in the order dated 24-12-2019 and ought to have asked the respondent/defendant to submit documents of a property of which the title was clear or a bank certificate recording a no objection to the creation of a second charge on the property to the extent of Rs 1.5 crores ought to have been furnished.

Vide orders dated 4-12-2020, this Court had after noting the letter of the Punjab National Bank, Gymkhana Branch, Meerut, U.P. that a lien had been created in the sum of Rs 1.50 crores, directed that the said amount of Rs 1.50 crores be deposited in an interest-bearing fixed deposit. This FDR had since been deposited in the Registry of this Court as was noted in the orders of this Court dated 5-03-2021 and 8-03-2021

Further, the petitioner’s counsel submitted that trial court had wrongly granted leave to defend the respondent in a case where the respondent/defendant had raised no triable issues.

Adding to the above, it was stated that trial court had proceeded in a wrong direction as the loan transactions between the petitioner/plaintiff and the respondent/defendant were different transactions and had nothing to do with the payment of Rs.1.50 crores, which was towards the legal fees of the petitioner/plaintiff and for which the invoice had been raised.

There was no dispute in that the petitioner/plaintiff had acted as a legal advisor to the respondent/defendant.

There was no document to establish a lawyer-client relationship, no retainership agreement had been filed and therefore, the claim of the petitioner/plaintiff was suspicious that he was entitled to a sum of Rs 1.50 crores towards such legal assistance.

As regards the question whether leave to defend has been rightly granted to the respondent/defendant or not, the facts that prevailed upon before the learned Trial Court were that the petitioner/plaintiff himself has referred to loans having been given to the respondent/defendant by way of bank transfer.

When the respondent/defendant had challenged the claim of the petitioner/plaintiff that he had acted as legal advisor to them and, therefore, the invoice raised was for a fee, this fact too would have to be proved.

In application for leave to defend, the respondent/defendant it was averred that the petitioner/plaintiff had claimed to have been providing legal assistance to the respondent/defendant since the year 2000.

With respect to the submissions made by the counsel for the petitioner/plaintiff, on taking cognizance of an offence by the MM under Section 138 of the N.I. Act automatically a decree against the respondent/defendant should follow, cannot be accepted, as cognizance leads to trial and the accused can also get acquitted.

Secondly, on the one hand, the petitioner/plaintiff claims that the cheques were towards loans which were separate transactions and on the other hand, wants this Court to draw conclusions on that basis, that the signatures on the cheques were admitted and the MM had taken cognizance of the case to decree this suit.

Bench stated that in light of the above submissions, it is indeed a matter of trial as to what was the liability of the respondent/defendant towards the petitioner/plaintiff and towards what transaction or service rendered by the petitioner/plaintiff, that is, as a lender or as a legal advisor, would he be entitled to the suit amount.

High Court held that the Trial Court was right in observing that the defence taken was not moonshine and disclosed triable issues which required inquiry. Leave to defend had to be granted in the light of these varying stands taken by the petitioner/plaintiff in different proceedings.

in the light of the previous orders of this Court and the deposit of the FDR for a sum of Rs.1.5 crores with the Registry of this Court, the leave to defend granted to the respondent/defendant is not unconditional and does not work to the disadvantage of the petitioner/plaintiff.

In view of the above, petition was dismissed. [Sarvesh Bisaria v. Anand Nirog Dham Hospital (P) Ltd., 2021 SCC OnLine Del 3859, decided on 30-7-2021]


Advocates before the Court:

For the Petitioner; Vivek Kumar Tandon, Advocate

For the Respondent: Sanchit Garga, Advocate

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., decides a matter revolving around the Will of a deceased person.

Factual Background

Instant suit was filed by two brothers’ owners of the suit property. The brothers mentioned were brothers of Late Shanti Swaroop Gupta.

Defendants submitted that the deceased left a Will in the name of his son-in-law who also passed away. In the said Will, properties of Late Shanti Swarup Gupta were bequeathed on his son-in-law who was the brother of defendants 1 to 3. The said defendants claimed ownership in the suit property to defendant 4 and conveyed it to defendant 5 and have further conveyed to the third parties.

Plaintiffs in the matter were 4 brothers of Late Shanti Swarup Gupta and claimed rights in the suit property by virtue of being Class-II legal heirs.

A probate petition was filed by the son-in-law of Late Shanti Swarup Gupta which was granted in his favour.

Present suit aimed to seek a declaration of the impugned registered Will is null and void, void-ab-initio and illegal, the decree of possession of the suit property, decree of permanent injunction against the defendants from creating any third party rights and direction to the office of Sub-Registrar not to register any sale till the disposal of the suit.

Analysis, Law and Decision

Section 263 of the Indian Succession Act reveals that the grant of probate or letter of administration or the revocation or annulment thereof for just cause can be ordered only by the probate Court. 

Court noted that the plaintiffs claimed that Anand Prakash Verma, son-in-law of Late Shanti Swarup Gupta, obtained the probate of the Will by playing fraud by not disclosing about other legal heirs of the deceased and hence the Will be declared null and void ab initio and illegal and of no effect.

Further, the plaintiffs applied for revocation of the probate granted and thus the relief as sought in prayer (a) of the present suit is not maintainable before this Court but before the probate Court under Section 263 of the Indian Successions Act.

In Court’s opinion, no ground was found to grant an interim injunction.

Hence, present suit was not maintainable. [Niranjan Swarup Gupta v. Bimla Devi, 2021 SCC OnLine Del 3690, decided on 14-07-2021]


Advocates before the Court:

For the Plaintiffs:

Mr. Piyush Singhal, Advocate for the plaintiffs with Mr. Ankur Gupta, A.R. of the plaintiffs in person.

For the Defendants:

Mr. Chandan Rai Chawla, Advocate for D1 to D3.

Mr. Kaadambari, Advocate with Ms. Priyanka, Advocate for D4 Mr. Samrat Nigam, Advocate with Mr. Sudarshan Ranjan, Mr. H. Bajaj, Advocates for D5 and D6.


Additional Reading:

Probate

1. Official proof of a will. [Whart.]. 2. Means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration of the estate of the testator, [Section 2(f), Succession Act, 1925 (India)].

[Source: SCC Online Webedition]

Case BriefsHigh Courts

Madras High Court: Dr G. Jayachandran, J., refused to pass a decree in favour of the plaintiff who relied on general admission of facts made by the defendant.

In the instant matter, it was stated that the plaintiff was engaged in the business of providing and arranging finance to various borrowers and had lent a loan to the first defendant company, which is an NBFC.

On the date of filing the suit, a sum of Rs 38,16,45,711/- was due and payable to the plaintiff. While advancing the loan, the second defendant provided personal guarantees for each of the facility agreements entered by the first defendant.

The second and third defendants were jointly and severally liable to pay the suit claim.

According to the plaintiff, since 2014, the transaction between the plaintiff and the first defendant company was regular without any default till the month of September 2020.

Further, it was submitted that the misappropriation of the fund by the Management of the Company came to light, when there was a default and when the Chief Financial Officer of the first defendant issued a Circular on 07-10-2020 disclosing diversion of the fund of the first defendant company by the second defendant as a consequence, criminal proceedings had been initiated by the plaintiff and the matter had been seized by the Directorate of Enforcement Wing.

Extracting a certain portion of the pleadings in the written statement, the plaintiff sought passing of a decree and judgment upon the said statement as admission.

Bench stated that the three admissions which were relied upon by the applicant were all general admissions and did not admit the suit claim.

Further, the Court added that the admission that fraud was committed per se will not entail the plaintiff for a decree as claimed in the suit. Whatever claimed in the suit has to be proved through evidence in the manner known to law and the portions of the admission relied upon by the plaintiff/applicant is a general admission of fact regarding the liability of the first defendant company and its inability to pay his creditors. The general admissions of fact cannot be construed as an admission of suit claim to pass a judgment and decree.

In view of the above application was dismissed. [Northern Arc Capital (P) Ltd. v. Sambandh Finserve (P) Ltd., 2021 SCC OnLine Mad 2577, decided on 5-07-2021]


Advocates before the Court:

For Applicant: Mr Anirudh Krishnan

For 1st Respondent: Mr. Supriyo Ranjan Mahaptra

For 2nd respondent: Mr Prashant Rajapogal

Case BriefsHigh Courts

Bombay High Court: Dama Seshadri Naidu, J., in a suit for specific performance, observed that:

“..in a suit for specific performance, a third party’s assertion that he has a stake in the subject matter of the suit counts to noting (sic). What matters is the contract, not the property covered by the contract. “

Background

‘A’ engaged in a contract with B for purchasing some property and B defaulted. Later, C the brother of A, represented A as his power of attorney agent (POA) and after a few years, A discharged C from being his POA and pursued the case independently and got a decree – not for specific performance but for the return of money.

Now an objection arose when A wanted to withdraw the deposited decretal amount and the objection was raised by C.

The ground for objection was that C wanted a part of the decretal amount since he too had contributed to the sale consideration.

Question for Consideration

Can C’s claim be countenanced? Is such an ‘intervention application’ maintainable?

Discussion

Code of Civil Procedure must be interpreted in a manner to subserve and advance the cause of justice. 

— C.K. Thakker’ s Code of Civil Procedure, Vol. 1, EBC, p. 200 (EBC Reader) 

Bench noted that in the present matter, firstly, there was no lis before the Court for it to entertain an interlocutory application. Thus, Court was proverbially functus officio. 

Adding to the above, Court stated that C wanted the Court to revive and resurrect a disposed of suit and to do that the Court must set aside the decree that was already passed.

But the question was, can the Court do so?

To the above, the answer was Court cannot. Further, it was elaborated that “A decree can be set aside under Order 9 Rule 13 CPC. In the Supreme Court decision of Ram Prakash Agarwal v. Gopi Krishna, (2013) 11 SCC 296, it was held that the applicant must have been a party to the suit, in the first place, whereas Supreme Court in Raj Kumar v. Sardari Lal, (2004) 2 SCC 601, took a different view and stated that the same was in the context of a lis pendens purchaser.

Bench coming back to the present matter, expressed that:

Subhash has a highway or a thoroughfare to travel on if ever he wants to reach his judicial destination: a separate suit, seeking a declaration.

Looking at the issue from another perspective, Court stated that in a suit for specific performance, whatever be its outcome, no third party can have the role to play.

Precedential Position

Ajay Kumar v. Tulsabai, 1973 SCC OnLine Bom 4, Court held that by very nature, a suit for specific performance confines itself to the agreement and several please that can either defeat or lead to its enforcement. The cause of action in such a suit is the agreement and its enforceability.

In the above-cited case, Court posed a question unto itself: Can it really be said that the stranger to an agreement is concerned with the relief sought by the plaintiff or the defences raised against such specific performance? The answer was that, firstly the stranger not being a party to the suit, any decision in that suit does not affect him. Secondly, the Court is being called upon to enforce the agreement but not to settle any disputes between the plaintiff and the stranger, therefore such a person’s presence is not necessary for the Court to decide the controversy of the suit.

In Panne Khushali v. Jeewanlal Mathoo Khatik,  AIR 1976 MP 148,  a Full Bench of the High Court of Madhya Pradesh has held that strangers to the contract making a claim adverse to the title of the defendant—for example, that they are the co-owners of the contracted property—are neither necessary nor proper parties. So they are not entitled to be joined as parties to the suit.

Delhi High Court in its decision of Raj K. Mehra v. Anjali Bhaduri, 1981 SCC OnLine Del 105, echoed the same view as above.

Analysis, Law and Decision

In view of the above, Court proceeded to examine the issue:

(1) The agreement was between Rajesh and Sudarshan.

(2) From the very inception, Subhash represented Rajesh as his POA in the suit; thus, he knew his brother’s pleadings and assertions to the exclusion of everyone else.

(3) Despite that, Subhash never objected to his principal’s (Rajesh’s) contentions.

(4) Though Rajesh, as the principal, cancelled GPA in 2017, Subhash never attempted, if ever permissible, to come on record as a defendant to protect his independent interest, if any.

(5) The suit was eventually decreed in 2001.

(6) Sudarshan willingly suffered the decree and deposited the amount to be appropriated by Rajesh alone.

Collateral Issue:

Subhash insisted that this Court in its Order dated 16-04-2012 noted that Subhas, too, contributed to the sale consideration.

To the above contention Bench stated that to facilitate adjudication of the matter, the Court undertakes various steps and during that process, Court prima facie observe or record certain aspects based on the counsel’s representation but the same does not acknowledge the parties existing rights if any, but they do not create rights on their own.

A Court’s observation cannot give rise to a right unless it has already existed, nor does it provide a cause of action. Here, in this case, it had never been in the Court’s contemplation as to who contributed the sale consideration. It is a non sequitur.

Concluding the matter, Court held that however strong a person’s right to recovery may be, he cannot file an intervention application in an already disposed of matter and stay the execution of the decree or nullify the decree without proper judicial recourse.

In view of the above discussion, Court dismissed the application. [Rajesh Saichand Sharma v. Sudershan Gangaram Rajula,  2021 SCC OnLine Bom 835, decided on 11-06-2021]


Advocates before the Court:

Mr. Sanjiv Sawant a/w Mr. Abhishek P. Deshmukh – Advocate for the Applicant.

Sukeshi Bhandari a/w Akshay Chauhan – Advocate for the Defendants.

Mr. Chandrakant N. Chavan a/w Mr. Rajesh Sharma – Advocate for Plaintiff.

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan* and R. Subhash Reddy, JJ has held that consent decree recognising pre-existing rights created by oral family settlement does not require registration under section 17 of  Registration Act, 1908.

Background

In the present case, Shri Sher Singh, husband of Jagno had half share in the agricultural land situate in village Garhi Bajidpur, which was suit property. Sher Singh died in 1953. Jagno after enforcement of the Hindu Succession Act, 1956 by virtue of Section 14 became the absolute owner of the half share of the suit property.

She had succeeded to half share in the agricultural land and she was the absolute owner when she entered into family settlement with her nephews i.e. sons of her brother.

On 19.08.1991, the trial court passed the consent decree in favour of the plaintiffs declaring the plaintiffs owners in possession of the half share in the land.

The descendants of brother of husband of Jagno filed a Civil Suit praying for declaration that the decree dated 19.08.1991 is illegal, invalid and without legal necessity. They also claimed decree of declaration in their favour declaring them owners in possession of land in question.

Analysis 

The Court took note of the judgment in Som Dev v. Rati Ram, (2006) 10 SCC 788 wherein decree was based on an admission recognising pre-existing rights under family arrangement. It was held that the decree did not require registration under Section 17(1)(b).

In in K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102, the Court interpreted Section 17 and held,

“… a property which is not the subject-matter of the suit or a proceeding would come within the purview of exception contained in clause (vi) of sub-section (2) of Section 17 of the Act. If a compromise is entered into in respect of an immovable property, comprising other than that which was the subject-matter of the suit or the proceeding, the same would require registration.”

The recent judgment in in Mohammade Yusuf v. Rajkumar, (2020) 10 SCC 264 was also taken note of wherein it was held that if decree which was sought to be exhibited was with regard to the property which was subject matter of suit, hence, was not covered by exclusionary clause of Section 17(2) (vi) and decree did not require registration. (Justice Ashok Bhushan, the author of the present judgment had also penned the said judgment.)

Hence, in the present case, the Court held that in view of the fact that the consent decree dated 19.08.1991 relate to the subject matter of the suit, hence it was not required to be registered under Section 17(2) (vi) and was covered by exclusionary clause.

[Khushi Ram v. Nawal Singh, 2021 SCC OnLine SC 128, decided on 22.02.2021]


*Judgment by: Justice Ashok Bhushan 

Appearances before the Court by:

For appellant – Advocate Ranbir Singh Yadav

For respondent – Senior Advocate Manoj Swarup

ALSO READ 

Married woman’s heirs on paternal side are not strangers; she can enter in family settlement with such heirs: Supreme Court

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: B. Sudheendra Kumar, J., allowing the present petition observed, “Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court.”

Petitioner is a decree-holder, who filed praying for issuing a direction to the Station House Officer concerned, to protect the possession of the petitioner over the schedule property and also for taking prosecution for the violation of the decree. Court issued two orders which were under consideration before the instant Court.

With respect to the first order dismissing the application stating that if the order is violated, the petitioner can approach the court by filing proper application, it was observed, “It appears that the court below did not consider as to whether the decree was already violated and as to whether the police assistance sought for by the decree-holder had to be granted or not, in accordance with law. Since the court below did not consider the said aspects, Ext.P8 is not sustainable.” Addressing the second order, it was remarked, “As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.”

Allowing the present petition, Court clarified the applicability of Order 41 Code of Civil Procedure, 1908 and further quashed the challenged orders.[Syamala v. Thapodhanan, 2020 SCC OnLine Ker 8401, decided on 22-01-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., while allowing the instant petition, set aside the order of trial Court, thereby allowing the amendment of the plaint contrary to the provisions of Code of Civil Procedure.

In the present case, respondent instituted a suit before trial Court for obtaining a decree of declaration that respondent has got the absolute title, ownership and possession over the property described in the plaint, schedule C and also a decree of prohibitory injunction restraining the appellant from trespassing into that property. After commencement of the examination of witnesses in the suit, the respondent filed an application (Ext.P5) under Order VI Rule 17 of the Code of Civil Procedure, 1908 for amendment of the plaint, which was allowed by the trial Court.

The impugned order of the Trial Court was challenged in the instant petition. One of the main contentions raised by the petitioner was that the application for amendment of plaint cannot be allowed since it was filed by the respondent after the commencement of the trial of the suit.

While ascertaining the date of trial the Court reiterated its decision in Sasidharan v. Sudarsanan, 2020 SCC OnLine Ker 4540, wherein it was held that, “the trial in a suit commences on the date on which the affidavit in lieu of examination-in-chief of a party or his witness is filed for the purpose of recording evidence.” The Court further relied on Vidyabai v. Padmalatha, (2009) 2 SCC 409, where it was held by the Supreme Court that,

 “Order 6 Rule 17 CPC is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to Order 6 Rule 17 CPC is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.”

The Court observed that the trial court has not considered whether the objections raised by the respondent are legally sustainable or not. Hence, the Court set aside the impugned order with the directions that the application is remanded to the trial court for fresh consideration and disposal. The trial court was directed to consider all relevant contentions raised by both parties and dispose of the application in accordance with law by a speaking order, within a period of one month from the date of production of a certified copy of this judgment. [T.V. Sasikala v. C.P. Joseph, 2020 SCC OnLine Ker 7702, decided on 21-12-2020]

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Justice V.K. Jain (Presiding Member), observed that Executing Court cannot go behind the decree and therefore, the State Commission has no option but to execute the order passed in the Consumer Complaints.

It has been stated that three Consumer Complaints were instituted before the State Commission against five persons including the appellant.

The above-stated Consumer Complaints were allowed by the State Commission against all the OPs including the appellant.

The order passed by the State Commission was not complied, therefore execution proceedings were initiated against the OPs in the Consumer Complaints including the appellant. Non-Bailable Arrest Warrants were issued by the State Commission, but the same was not executed and hence they were again issued and sent to SSP, Mohali.

Decision

Bench stated that in its opinion, the Consumer Complaints were allowed against all the OPs including the appellant, the appropriate remedy for him was to challenge the order passed by the State Commission in the Consumer Complaint.

Executing Court cannot go behind the decree and therefore, the State Commission has no option but to execute the order passed in the Consumer Complaints irrespective of whether the appellant had resigned from the Directorship of the company or not.

Since an Executing Court cannot go behind the decree, it was not open to the State Commission nor is it open to this Commission to examine, in execution proceedings, as to whether the appellant had resigned from the Directorship of the company as is claimed by him or not. Similarly, neither the State Commission acting in the execution proceedings nor this Commission, while hearing an appeal arising out of the execution proceedings, can go into this question.

Therefore, in view of the above, no relief to the appellant could be granted.

However, the Commission permitted the appellant to apply to the State Commission to be released on his personal bond if he is unable to arrange a surety. If such a request is made, it will be examined by the State Commission on its own merits. [Hardayal Singh Mann v. Inderjit Singh, Appeal Execution No. 60 of 2020, decided on 29-10-2020]

Case BriefsHigh Courts

Bombay High Court: A.S. Kilor, J., held that contravention of the provision of Section 15 of the Hindu Marriage Act, 1955 does not amount to willful disobedience of ‘other process of a Court’ under the provisions of the Contempt of Court Act, 1971.

Willful Disobedience

The petitioner sought action under Section 12(3) of the Contempt of Court Act, 1971 against the respondent for alleged willful disobedience of ‘other process of a Court’ by performing marriage in contravention of the provision of Section 15 of the Hindu Marriage Act, 1955.

Facts 

Respondent preferred a petition under Section 13 of the Act, 1955 against the petitioner for dissolution of marriage on the ground of cruelty and desertion.

Civil Judge had dismissed the petition holding that the respondent failed to prove cruelty and desertion.

Decree of Divorce

The respondent questioned the Judgment and decree which was allowed and thereby declared the marriage between the petitioner and respondent stands dissolved by a decree of divorce.

Petitioner filed the second appeal which is pending before the Court.

While the appeal was in pendency, the contempt petition had been filed alleging that the respondent had performed second marriage in contravention of the mandate of the provision of Section 15 of the Act, 1995 which is willful disobedience of ‘other process of a Court’ as provided by Section 1(b) of the Act, 1971.

Counsel for the petitioner, T.G. Bansod and S.S. Jagtap Counsel for the respondent.

Bench considered the following questions:

“(i) Whether the performance of second marriage by the respondent on 20-03-2016 during the pendency of appeal is unlawful in view of prohibition stipulated under Section 15 of the Act, 1955, and if yes ?

(ii) Whether contravention of Section 15 of the Act, 1955 amounts to willful disobedience of ‘other process of a Court’ as provided in Section 2(b) of the Act of 1971 ?”

Court referred to Section 15 of the Hindu Marriage Act, 1955, which reads as follows:

“Divorced persons when may marry again — When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

High Court noted that the respondent ignored the prohibition and performed the second marriage under an incapacity to marry, stipulated under Section 15 of the Act, 1955.

Ejusdem Generis

Further, to find out the import of the expression ‘other process of a court’ which is a general term, the principle of Ejusdem Generis would be helpful to apply, in the present matter.

Civil Contempt — Section 2(b) of the Contempt Act, 1971

“Civil contempt means willful disobedience to any judgments, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court.”

The expression ‘willful disobedience of process of a Court’ used under Section 2 (b) of the Act, 1971, must also be related to the disobedience of some command issued by the Court during the process of a Court which includes various stages between the filing of any proceeding to a final decision by the Court.

Bench stated that at any stretch of imagination it cannot be said that contravention of the provision of Section 15, amounts to willful disobedience of ‘other process of a Court’ under the provisions of the Act, 1971.

High Court in view of the above held that during the pendency of the appeal, the performance of second marriage would be a breach of prohibition stipulated under Section 15 of the Act, 1955, but in any case, it would not amount to disobedience of any command of the Court consequently such act would not fall within the ambit of the expression ‘willful disobedience of other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.

No Civil Contempt

In view of the observations laid above, Court stated that the second marriage performed by the respondent in contravention of Section 15 of the Act, 1955 would not fall within the purview of clause (b) of Section 2 of the Act, 1971 and hence no civil contempt has been committed.

Accordingly, the contempt petition was dismissed. [Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLine Bom 911, decided on 08-09-2020]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of H.C. Mishra and Rajesh Kumar JJ., rejected the prayer and dismissed the appeal being devoid of merit.

The facts of the case are such that marriage of the appellant and his wife was solemnized in the year 2007 as per Hindu rites and rituals in the presence of all family friends and relatives and two children are born out of the wedlock. The appellant alleged that wife has been living separately and on numerous incidents caused mental agony to the appellant. He has further alleged in the appeal that the acts of the wife amount to cruelty and desertion of the wife. A suit was filed by the husband for divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds of cruelty, desertion and mental incapacity of the respondent-wife. The Trial Court decided the matter in favour of the wife and aggrieved by the same, the instant appeal was filed challenging the same order.

The appellant represented himself in person and submitted that the wife behaved psychic and rudely and treated him and his parents with utmost cruelty. He cited various incidents to support his argument along with two witnesses, one himself and his mother, namely, Kaushalya Devi but did not produce any documentary evidence.

Counsel Sujeet Neepulam representing the respondent-wife denied allegations of cruelty, desertion and mental illness and submitted further that her actions of leaving home and staying with parents are not willful as the appellant and his family were demanding dowry, refusing which she was ousted from the marital home and brought back and ousted again on many occasions. Four witnesses, namely, Ashok Saw, Naresh Saw, Praveen Kumar and herself were examined to support her argument alongwith documentary evidence i.e. a mutual divorce application dated 13-07-2009 sent by the husband to wife after signing, a letter dated 30-07-2010 to her father giving threat, copy of an FIR instituted by the respondent-wife under Section 498 A of Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961  compromise copy after the appellant was arrested subsequent to the filing of FIR and other pertinent documents to support her plea. It was further submitted that the respondent is still willing to lead a respectable conjugal life with her husband, but the husband is not willing to keep her.

The Court observed that appellant was unable to present any substantial evidence except oral evidence of his and his mother whereas the respondent-wife presented various documentary proofs which demolish the case of cruelty from her side instead makes it clear by looking at the mutual divorce application and a written letter of threat to her father or the fact that she compromised to secure bail for the petitioner is enough to indicate the willingness of the respondent-wife to resume the respectable conjugal life with the appellant.

The court relied on judgments titled Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 and Kaslefsky v. Kaslefsky [1951] P. 38 and held that any husband desirous to get rid of his wife may get desired result by driving out his wife from matrimonial home by force or creating a situation and thereafter taking plea of desertion for more than two years. The law is clear that if one of the parties to the matrimonial home, voluntary and without any plausible explanation has left the matrimonial home giving no option to the other party, then it amounts to desertion. Desertion is a willful and voluntary act by the party to leave something without any rational reason. In the present case, the husband is at fault and this is the reason for separate living of both the parties. Hence, the argument that living separately itself is sufficient in the eyes of law for granting the divorce is not acceptable.

In view of the above, decree for divorce rejected and appeal dismissed.[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLine Jhar 773, decided on 08-09-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Vivek Kumar Birla, J., while addressing a matter with regard to “shared household”, held that,

“daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on the suit property after the marriage of the son of the plaintiff with the appellant.”

Appellant was married to the plaintiff’s son — Vijay Gandhi. In the year 2013, Vijay Gandhi deserted the appellant and filed a divorce petition under Section 13 of the Hindu Marriage Act.

Further, it has been noted that an FIR was lodged against the appellant by the plaintiff.

Plaintiff is the owner of the property wherein he permitted his son and the defendant to live on the first floor of his house. Defendant started harassing the plaintiff who is old and handicapped along with his wife.

Suit for Eviction

In view of the above incident, the plaintiff asked his son to vacate the house with the defendant, who later came back and refused to vacate the house. Hence suit for eviction was filed against the defendant.

Substantial question in the present appeal

(I) Whether as per definition of shared household provided under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 appellant daughter-in-law can be evicted without seeking a decree of eviction against son with whom she had admittedly moved on the first floor of the suit property after the marriage of the son of the plaintiff with appellant?

Supreme Court in its decision, S.R. Batra v. Tarun Batra, (2007) 3 SCC 169, while considering the aspect of “shared household” held that where the plaintiff is the exclusive owner, it cannot be called a “shared household”. The wife’s claim for alternative accommodation against the plaintiff was rejected and was held that it can be claimed only against the husband and not against the in-laws or other relatives.

S.R. Batra v. Tarun Batra, (2007) 3 SCC 169: a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

Hence, in the Court’s opinion, no substantial question of law arose or can be raised in the present second appeal.

Order 1 Rule 3 and Rule 9 CPC

Further, the Court added that, it is not in dispute that the husband was not residing in the suit property and left the house. It is also not being questioned that if parents permit his son to live in their house he would be a licensee. If his wife is also living with him, she would also be a licensee.

Where the son has left and is not residing in the suit property, no relief is being or is claimed against him. Since he is not living in the suit property, question of filing a separate suit or which may attract any common question of law or fact would also not arise.

Lastly, answering the substantial question of law in the negative, bench once again cited the Supreme Court decision in S.R. Batra with regard to the shared household and the argument for counsel for the respondent (wife) that definition of the shared household includes a house where the person aggrieved lives or at any stage had lived in a domestic relationship was specifically considered and rejected.

Court added that a reading of the said judgment, subject to correction, prima facie, reflects that husband was not a party to the suit and it was held that the claim for alternative accommodation can only be made against the husband and not against the in-laws or other relatives.

Therefore, in view of the definition of the shared house, as provided under Section 2 (s) of the Act, 2005 daughter-in-law can be evicted without seeking a decree of eviction against the son with whom she had admittedly moved in the suit property after the marriage of the son of the plaintiff.

In view of the above observations, petition was dismissed. [Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Ajay Rastogi, JJ has held that a decree passed on a compromise cannot be challenged by the stranger to the proceedings in a separate suit. Holding that the bar under Rule 3A to Order 23 CPC would extend to strangers as well, the Court said,

“The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the Court of competent jurisdiction once and for all.”

The legislature has brought into force Rule 3A to Order 23, by introducing the amendment to the Civil Procedure Code (Amendment) 1976 w.e.f. 1st February, 1977, which creates bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful.

“Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties.”

The bench explained that Rule 3A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties.

“The Court can be instrumental in having an agreed compromise effected and finality attached to the same. The Court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Rule 3 of Order 23 CPC before the Court.”

It, hence, held that merely because the appellant was not party to the compromise decree, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree.

It, further, explained that after the amendment which has been introduced, neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23 CPC. As such, a right has been given under Rule 1A(2) of Order 43 to a party, who denies the compromise and invites order of the Court in that regard in terms of proviso to Rule 3 of Order 23 CPC while preferring an appeal against the decree. Section 96(3) CPC shall not be a bar to such an appeal, because it is applicable where the factum of compromise or agreement is not in dispute.

[Triloki Nath Singh v. Anirudh Singh,  2020 SCC OnLine SC 444 , decided on 06.05.2020]