Extinguishment of right, title and interest in property

Effect of Re-grant of Land.

Whatever so-called rights, title and interest which the original holders derived from the orders of re-grant in 1973 in the suit property in their favour, the same stood extinguished by efflux of time.

The reason was that in order to keep such new rights intact and enforceable, the original holders (three PATIL) were under a legal obligation to have filed a suit for claiming a declaration and possession of the suit land and this ought to have been done by them within 12 years from the date of re-grant, i.e., 1973.

They, however, failed to do so within 12 years and when they actually tried to exercise their rights by filing the suit in 2004 (after 31 years from 1973), by then it was too late to exercise such rights in law. By that time, their rights in the suit land stood extinguished. Continue reading “Extinguishment of right, title and interest in property”

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Arbitration Clause referring to 1940 Act

Applicability of Arbitration Act, 1996.

What is material for the purposes of the applicability of 1996 Act is the agreement between the parties to refer the disputes to arbitration. If there be such an arbitration agreement which satisfies the requirements of Section 7 of 1996 Act, and if no arbitral proceeding had commenced before 1996 Act came into force, the matter would be completely governed by the provisions of 1996 Act. Any reference to 1940 Act in the arbitration agreement would be of no consequence and the matter would be referred to arbitration only in terms of 1996 Act consistent with the basic intent of the parties as discernible from the arbitration agreement to refer the disputes to arbitration. Continue reading “Arbitration Clause referring to 1940 Act”

Prosecution for perjury

Scheme of Section 195 read with sec. 340 of Cr. P.C.

The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely.

No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.

[Source: Chajoo Ram v. Radhey Shyam, AIR 1971 SC 1367, 1971 SCR 172]

In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”.

Continue reading “Prosecution for perjury”

Compensation for death due to medical negligence

How to value human life?

Human life is most precious. It is extremely difficult to decide on the quantum of compensation in medical negligence case as the same is highly subjective in nature.

In case of Sarla Verma (2009) 6 SCC 121, Supreme Court discussed “just compensation.

In Kunal Saha case (2014) 1 SCC 384, Supreme Court rejected the multiplier method and held that a “no-fault” motor vehicle accident should not be compared with the case of death from medical negligence under any condition. It was held that there were problems in using a “strait-jacket formula” for determining the quantum of compensation. The multiplier method used in motor accident cases thus is not conclusive for just, fair and adequate compensation. I

n Halsbury Laws of England 4thEdition page 446, it has been stated with regard to non-pecuniary loss that pattern of compensation awarded is for pain and suffering and loss of amenity constitutes a conventional sum which is taken to be a sum which society deems fair, fairness being interpreted in the light of previous decisions”.

In Nizam’s case (2009) 6 SCC 1 the Supreme Court did not apply the multiplier method and awarded compensation based on the nature of injury, expenditure incurred and expenditure likely in future. Thus there is no restriction upon courts while awarding compensation it has to be confined to what is demanded by the complainant.

In V. Krishna Kumar (2015) 9 SCC 388, Supreme Court while relying on the principle of “restitutio in integrum” as recognized in Malay Kumar Ganguly case (2009) 9 SCC 221 and Kunal Saha (2014) 1 SCC 384 has further weighed the “apportioning of inflation” based on the RBI data of average inflationary rate between 1990-1991 and 2014-2015 and formulated standard future value; (FV) formula as below:

FV = PV (Present Value) x (1+r)n ( r= rate of return; n = time period)

Recently, the Constitution Bench of Supreme Court in the case of National Insurance Co Ltd (2017) Scale 12 determined just compensation in fatal accident cases has inter alia concluded that while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospective, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age was between 40-50 years. In case the deceased is was between the age of 50-60 years the addition should be 15%. Actual salary should be read as actual salary less tax. In case the deceased was self employed of on a fixed salary, an addition of 40% of the established income when the deceased was less than 40 years of age, 25% when the deceased was 40 to 50 years and 10% for the age group between 50-60 years. The established income means the income minus the tax component.

Demand of additional consideration after execution of Sale Deed

Cancellation of sale due to non utilization:

In the first instance, it needs to be emphasised that there is no such condition of completion of construction within a period of two years in the sale deed. Such a condition was only in the allotment letter. However, after the said allotment, the appellant- Corporation not only received entire consideration but executed the sale deeds as well. In the sale deeds no such condition was stipulated. Therefore, the High Court is right in holding that after the sale of the property by the appellant-Corporation to the respondents, whereby the respondents acquired absolute marketable title to the property, the appellant-Corporation had no right to insist on the conditions mentioned in the allotment letter, which cease to have any effect after the execution of the sale deed.

Rights and duties of buyers and sellers:

Section 55 of the Transfer of Property Act deals with rights and liabilities of buyer and seller. As per this provision, when the buyer discharges obligations and seller passes/conveys the ownership of the property, the contract is concluded. Thereafter, the liabilities, obligations and rights, if any, between the buyer and seller would be governed by other provisions of the Contract Act and the Specific Relief Act, on the execution of the sale deed. The seller cannot unilaterally cancel the conveyance or sale. Continue reading “Demand of additional consideration after execution of Sale Deed”

Conditions for stay of trial in Civil and Criminal matters

Effect of stay of trial:

It is well accepted that delay in a criminal trial, particularly in the PC Act cases, has deleterious effect on the administration of justice in which the society has a vital interest. Delay in trials affects the faith in Rule of Law and efficacy of the legal system. It affects social welfare and development. Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint. Mere prima facie case is not enough. Party seeking stay must be put to terms and stay should not be incentive to delay. The order granting stay must show application of mind. The power to grant stay is coupled with accountability.

Stay of trial in Corruption case:

Continue reading “Conditions for stay of trial in Civil and Criminal matters”

Right of construction workers to live with dignity.

Enforcement of Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (the BOCW Act) and the Building and Other Construction Workers‘ Welfare Cess Act, 1996 (the Cess Act)

Under the Cess Act, more than Rs. 37,400 crores have been collected for the benefit of construction workers, but only about Rs. 9500 crores have been utilized ostensibly for their benefit. What is being done with the remaining about Rs. 28,000 crores? Why is it that construction workers across the country are being denied the benefit of this enormous amount?

Duty to implement laws:

The sanctity of laws enacted by Parliament must be acknowledged – laws are enacted for being adhered to and not for being flouted. The rule of law must be respected and along with it the human rights and dignity of building and construction workers must also be respected and acknowledged, to avoid a complete breakdown of the BOCW Act compounded by serious violations of Part III of the Constitution guaranteeing fundamental rights. Continue reading “Right of construction workers to live with dignity.”

Sale under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

Sale with symbolic possession:

In this case, the creditor did not have actual possession of the secured asset but only a constructive or symbolic possession. The transfer of the secured asset by the creditor therefore cannot be construed to be a complete transfer as contemplated by Section 8 of the Transfer of Property Act. The creditor nevertheless had a right to take actual possession of the secured assets and must therefore be held to be a secured creditor even after the limited transfer to the auction purchaser under the agreement

Thus, the entire interest in the property not having been passed on to the creditor in the first place, the creditor in turn could not pass on the entire interest to the auction purchaser and thus remained a secured creditor in the Act.

Fraud and collusion with SARFAESI purchaser:

Continue reading “Sale under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002”

Exemption to an accused from personal attendance during trial.

Section 205 Cr.P.C. and Section 317 Cr.P.C. which are relevant provisions for exemption areas under:

“Section 205. Magistrate may dispense with personal attendance of accused.— (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.

317. Provision for inquiries and trial being held in the absence of accused in certain cases.—(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.”

Continue reading “Exemption to an accused from personal attendance during trial.”

Transfer of criminal investigation to CBI

Writ petition in Supreme Court seeking transfer:

The petitioner, the President of Gorkha Janmukti Morcha (hereinafter referred to as “GJM”), has filed this Writ Petition under Article 32 of the Constitution of India praying for transfer of investigation of all First Information Reports lodged against the petitioner and other members of GJM, to any independent investigation agency.

Principle for transfer:

This Court does not direct transfer of investigation just for the asking nor is transfer directed only to satisfy the ego or vindicate the prestige of a party interested in such investigation. The decision whether transfer should or should not be ordered rests on the Court’s satisfaction whether the facts and circumstances of a given case demand such an order. Continue reading “Transfer of criminal investigation to CBI”