Bombay High Court
Case BriefsHigh Courts

Bombay High Court: In a commercial division summary suit instituted by Aziz Amir Ali (‘plaintiff’) who is former employee of a registered partnership firm (‘defendant 1’) which is engaged in the business of selling umbrellas for more than a century and has acquired goodwill in the market., for recovery of a sum of Rs. 1,20,00,000/- along with interest at the rate of 24% p.a. on the principal sum of Rs. 1 Crore, N.J. Jamdar, J. held the summary suit to be maintainable on confirmation of accounts through deposit receipt presented before Court.

The plaintiffs invested their lifetime savings with the defendants under the Collective Investment Scheme and invested a total sum of Rs. 1 Crore by cross payee cheques drawn in favor of defendant 1. In turn, the defendants issued credit notes and kept paying the money until January 2020 however stopped payment of interest from the month of February 2020. Thus, letters and legal notices were sent but to no response, present summary suit was filed.

Defendant 2 assailed the tenability of the suit under Order XXXVII Civil Procedure Code, contending that there is no contract between the plaintiffs and the defendants as alleged credit notes/deposit receipts do not constitute written contract.

The Court noted that the claim of the plaintiff is substantiated by the statements of bank accounts which evidence the transfer of amount to the account of defendant 1 through cheques. Particulars of the cheques are mentioned in the credit notes/deposit receipts, thus giving credence to the receipt of the amount of Rs. 1 Crore.

On the contention raised by the counsel for defendant that the transaction allegedly evidenced by credit notes does not partake the character of ‘deposit’, the Court placed reliance on Basant Lal Agarwal v. Lloyds Finance Ltd., 2003 SCC OnLine Bom 1129, to explain the distinction between ‘loan’ and ‘deposit’.

The Court observed that the credit note/receipt clearly acknowledges the receipt of the amount thereunder and the legal notices sent constitute a specific and unequivocal demand of the said amount.

On the thrust of the defense regarding absence of stipulation as to the ‘term of deposit’ implying no contract to repay the amount, the Court opined that the very acknowledgment of the receipt of the amount evidenced by the credit note/receipt gives rise to a contract to repay the said amount and the obligation becomes enforceable upon demand, e-ven in the absence of stipulation as to period of payment.

Placing reliance on Jyotsna K. Valia v. TS Parekh and Co., 2007 SCC OnLine Bom 413, wherein it was observed that a summary suit on the accounts duly confirmed by the defendants would be maintainable, thus, the Court did not accede to the challenge to the tenability of the suit on the ground that it is not based on a written contract.

The Court held that the defendants cannot be granted an unconditional leave to defend the suit when there is material to show that the receipt of the principal amount of Rs. 1 Crore is incontestable and borders on an admitted liability.

The Court directed defendants to repay a sum of Rs. 1 Crore within a period of six weeks from the date of this order, failing which the plaintiffs shall be entitled to apply for an ex-parte decree against the defendants after obtaining a non-deposit certificate from the Prothonotary and Senior Master of this Court.

[Aziz Amirali Ghesani v. Ibrabim Currim, 2022 SCC OnLine Bom 2300, decided on 14-09-2022]


Advocates who appeared in this case:

Mr. Rashmin Khandekar, a/w Ms. Karishni Khanna, i/b Amit Tungare, Ms. Jill Rodricks, Vinit Jain and Deep Dighe, Advocates, for the Plaintiffs;

Mr. Zain Mookhi, a/w Janhavi Doshi, i/b Maniar Srivastava Asso., Advocates, for the Defendant no. 2;

Mr. Jamshed Master, i/b Natasha Bhot, Advocates, for the Defendant no. 3;

Mr. Siddha Pamesha, a/w Declan Fernandes, i/b Purazar Fouzdar, Advocates, for the Defendant no. 4.


*Arunima Bose, Editorial Assistant has put this report together.

Himachal Pradesh High Court
Case BriefsHigh Courts

   

Himachal Pradesh High Court: Vivek Singh Thakur, J. dismissed the petition filed under Sec 482 Criminal Procedure Code (‘CrPC') for extension of parole as the right remedy is under Article 226 of Constitution of India.

The instant petition was filed under Section 482 CrPC seeking extension of term of parole granted to the petitioner on medical grounds.

The Court noted that grant of parole to a convict/prisoner is governed by provision of H.P. Good Conduct Prisoners (Temporary Release) Act, 1968 and Rules framed thereunder.

The Court observed that omission or commission on the part of concerned authority in granting or rejecting the claim of a prisoner under H.P. Good Conduct Prisoners (Temporary Release) Rules, 1968 is an administrative action, but not an action governed by provisions of Code of Criminal Procedure or any other Criminal Law and therefore instead of filing petition under Section 482 CrPC, a petition under Article 226 of Constitution of India shall be maintainable.

The Court thus dismissed the petition with liberty to file a fresh comprehensive petition and directed the Authority not to take any coercive action till 15-07-2022.

[Mohd. Margoob v. State of HP, Criminal Misc. Petition (Main) No. 470 of 2022, decided on 21-06-2022]


Advocates who appeared in this case :

Vinod Kumar, Advocate, for the Petitioner;

Hemant Vaid, Advocate, for the Respondent.


*Arunima Boase, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: Dwarka Dhish Bansal, J. allowed a civil revision under Section 115 of CPC against the order rejecting application filed under Section 151 of CPC holding that the same was not maintainable.

Order sheet of the trial Court showed that respondent 2 was not present when the suit was dismissed for want of payment of requisite Court fee, therefore, in view of order 41 Rule 14 (4) of CPC service of notice on her is not necessary. Counsel for the applicant submitted that he instituted a suit for specific performance of agreement of sale, on which Court fee of Rs.1,25,000/- (Rs One Lakh Twenty Five Thousand) was required to be paid but due to non-payment of requisite Court fee the suit was dismissed. He submitted that the applicant instead of filing First Appeal against the order filed an application under Section 151 of CPC with a prayer to restore the Civil Suit and to permit the plaintiff to pay the court fee.

The Court considered the judgment relied on by the Counsel for the applicant Ajab Singh v. Amar Singh, 2000 (1) MPWN 77 wherein the decision in the case of Padmalaya Panda v. Masinath Mohanty AIR 1990 Orissa 102 (DB) was considered, which has also been relied on in the case of Pravesh Pathak v. Shakuntala Sharma, 2016 (1) MPLJ 358 and also in the case of Jagdeesh v. Narayan decided on 22-2-2018 in M.P.No.1132 of 2017, whereby the application under Section 151 of CPC was found to be maintainable despite the fact that order allowing the application under Order 7 Rule 11 of CPC is appealable like a decree under Section 96 of CPC.

The Court was of the opinion that Trial Court has not carefully considered both the decisions relied on by the Counsel thus the impugned order is not sustainable. Trial was directed to restore the civil suit.[Anil Kumar Jain v. Maniram Singraha, 2022 SCC OnLine MP 971, decided on 11-05-2022]


For applicant: Mr Sanjay Kumar Jain

For respondent: Mr Sidharth Sharma, Mr R.P. Khare


Suchita Shukla, Editorial Assistant has reported this brief.

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Bench of Ashutosh Kumar, J. hearing a civil writ petition challenging the order passed by Division Bench of this Court, held that a petition if not maintainable if liberty to file a review petition has been granted while dismissing the appeal.

Petitioner herein had preferred a writ petition earlier before this Court in relation to discrepancies in evaluation of his answer book, which was rejected. In a letters patent appeal (LPA), the Division Bench of this Court refused to interfere with finding and direction of the learned Single Judge but gave liberty to the petitioner to approach the writ-Court again in review, in case any discrepancies were found in the evaluation of answer-books by him.

The Court opined that in view of the order passed in LPA, the present writ petition ought not to have been filed straightway. On the request of petitioner’s counsel Mr Rajesh Kumar Sharma, the Court permitted him to withdraw this writ petition in order to prefer a review, in case so desired, before the Single Judge Bench.

The petition was disposed of on the aforesaid terms. [Rakesh Kumar v. State of Bihar, 2019 SCC OnLine Pat 213, Order dated 15-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): The Bench of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, member (Judicial) dismissed an appeal filed against the order of National Company Law Law Tribunal (Bengaluru).

By the impugned order, application filed under Section 8 of the Arbitration and Conciliation Act, 1996 preferred by respondents was referred to Arbitrator by NCLT. Nikhil Nayyar, Arun Srikumar, Kaustav Saha and Naveen Hegde, Advocates represented the appellants while challenging the impugned order.

The Appellate Tribunal followed its earlier judgment in Thota Gurunath Reddy v. Continental Hospitals (P) Ltd., Company Appeal (AT) No. 160 of 2017, dated 18-07-2018. In that case, the Appellate Tribunal has held that against the reference of the arbitration, no appeal lies before the NCLAT under Section 421 of the Companies Act, 2013. It was held that in such view of the matter, the appeal was not maintainable and thus it was dismissed. [Richa Kar v. Actoserba Active Wholesale (P) Ltd., 2019 SCC OnLine NCLAT 2, dated 11-01-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Division Bench comprising of Mushir Alam and Munib Akhtar, JJ. while hearing an appeal in relation to the termination of service, held that though a salesman is not a workman, he would be entitled to relief for dismissal of his service under the Payment of Wages Act, 1936.

The petitioner, a sales representative in the respondent company, on being terminated filed a claim under the 1936 Act which was decreed in his favour by the authority. The High Court, in appeal, reversed the decision ruling in favour of the respondent. Aggrieved by the said order, petitioner preferred the present leave petition. The two questions for Hon’ble Supreme Court’s consideration were: (i) whether the petitioner’s claim was maintainable under the Act; and (ii) whether he was a ‘workman’ within the meaning of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

The Supreme Court noted that the Labour Laws (Amendment) Ordinance, 2001 had expanded the scope of the 1936 Act to make it applicable to persons employed in any factory, industrial or commercial establishment. Thus, a person seeking to bring a claim within its scope has to show that he was a ‘person employed’ in a ‘factory or an industrial establishment or a commercial establishment’. The respondent admitted that it is an industrial establishment and petitioner was employed by it. Thus, the claim was maintainable under the 1936 Act.

Relying on its judgment in Pakistan Tobacco Co. Ltd. v. Pakistan Tobacco Company Employees’ Union, PLD 1961 SC 403, the court held that being a salesman, petitioner was not a ‘workman’ within the meaning of the 1968 Ordinance.

Lastly, it was held that the petitioner’s claim being maintainable under the 1936 Act, but he not being a workman in terms of the 1968 Ordinance, did not bar his relief since contributions made by him and the respondent towards the provident fund was covered within the definition of ‘wages’. Therefore, relief could be granted to him under the 1936 Act. [Aurangzaib v. Medipak (P) Ltd., Civil Petition No. 2743 of 2017, decided on 03-10-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed a second appeal filed against the order of the appellate court.

The appellant and the respondent were joint owners of a particular piece of property, both of them had constructed their respective houses on the same piece of land. The dispute arose when the appellant used started construction on the land which was a common passage for both the parties.

The main issue, in this case, was whether a co-owner can seek an injunction, restraining the other co-owner from using a joint property or raising construction thereon without seeking relief of partition.

The Court observed that it is undisputed that the suit property was a common passage for both the parties and it is not the case of the defendant that except for the land under their respective occupation in the shape of construction of the houses, the rest of the land is vacant and un-partitioned. The existence of common passage was also backed by the evidence of Patwari who had inspected the land in presence of both the parties. In cases where one co-owner of a property encroaches upon the property which is jointly owned by all the co-owners, then in those cases, a suit for injunction-simpliciter is maintainable.

However, the Court held that there is no absolute law that a suit for injunction by one co-sharer against another co-sharer is not maintainable and the co-sharer approaching the Court should be relegated to the alternative efficacious remedy of seeking partition. Hence, the Court upheld the order of the appellate court and dismissed the appeal of the appellant. [Girdhari Lal v. Ram Lal, 2018 SCC OnLine J&K 693, order dated 03-10-2018]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Biswanath Somadder and Arindam Mukherjee, JJ., dismissed an appeal in light of the availability of an efficacious alternative remedy before a competent statutory Authority.

The appeal was filed against the decision of the learned Single Judge who had dismissed the writ petition filed by the appellant challenging the election process for the post of Gram Panchayat member. The learned Single Judge, while dismissing the petition, held that the same was not maintainable before the writ court and relegated the appellant to an appropriate statutory remedy which is available for a period of thirty days from the date of declaration of the election results. The appellant, instead of applying before the statutory Authority, was before the High Court in appeal.

The High Court considered the matter and observed that the writ petition had challenged the election process, and the statutory mechanism for raising such dispute was clearly stated under Section 79 of West Bengal Panchayat Elections Act 2003. The Section prescribes the statutory Authority as well as the time frame for redressal of the dispute. The Court held that the appellant could take recourse to the available alternative remedy before a competent statutory Authority as provided under the Act. Therefore, the Court did not find any infirmity with the decision of the learned Single Judge, and accordingly, the appeal was dismissed. The appellant was directed to approach the Authority within ten days. [Mina Perween v. State of W.B.,2018 SCC OnLine Cal 3962, decided on 25-06-2018]