Sovereign Immunity in Commercial Matters?

Scope of Sovereign Immunity:

Business or commercial activities carried out by one Country in the territory of another country ordinarily not entitled to plead sovereign immunity.

Principle of sovereign Immunity

There is no agreed principle except this: that each State ought to have proper respect for the dignity and independence of other States. Beyond that principle there is no common ground. It is left to each State to apply the principle in its own way, and each has applied it differently. Some have adopted a rule of absolute immunity which, if carried to its logical extreme, is in danger of becoming an instrument of injustice. Others have adopted a rule of immunity for public acts but not for private acts, which has turned out to be a most elusive test. All admit exceptions. There is no uniform practice. There is no uniform rule. So there is no help there.
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What is cause of action?

A plaint before it can be entertained and registered as suit, it must plead cause of action.

What is cause of action?

While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action”. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.

In A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem (1989) 2 SCC 163, Supreme Court explained the meaning of “cause of action” as follows: Continue reading

Willful Contempt and Mens Rea

Even if mens rea or guilty mind is not required to punish for contempt of court, the act alleged must be willful before a person is convicted for contempt.

Contempt of court by disobedience:

Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms. In civil proceedings one obvious form is a wilful failure by a party to the proceedings to comply with a court order made against him. By such a breach a party may frustrate, to greater or lesser extent, the purpose the court sought to achieve in making the order against him.

Sometimes the purpose a court seeks to achieve in making an order against a party to proceedings may be deliberately impeded or prejudiced by the conduct of a third party. This may take more than one form. The third party may be assisting, that is, aiding and abetting, a breach of the order by the person against whom the order was made. Then he is an accessory to the breach of the order. Continue reading

Law of Limitation in India

Understanding Limitation Act, 1963

Every remedy has a period of limitation within which it can be invoked. The right to seek relief is extinguished after the period of limitation. In India the statute of limitation is called as Limitation Act which was enacted in the year 1963.

Though Act of 1963 is not the exclusive as remedies provided before various Tribunals under different statutes are governed by limitation under that statute yet the principles laid down in the cases decided in respect of Limitation Act would apply to those statutes as well.

This book covers the Limitation Act, 1963 and also the selected leading judgments of Supreme Court of India and Various High Courts of India. Wherever possible live links to judgments are provided.

The ebook is easily comprehensible by lawyers and laymen alike. Do use the feature of search to land at what you are looking for.

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Election Law: Withdrawal of Nomination.

Proper procedure or withdrawal of a contesting candidate.

Relevant law is section 37 of Representation of Peoples Act, which is as under:

37. Withdrawal of candidature.—
(1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O’clock in the afternoon on the day fixed under clause (c) of section 30 to the returning officer either by such candidate in person or by his proposer,  or election agent who has been authorised in this behalf in writing by such candidate.
(2) No person who has given a notice of withdrawal of his candidature under sub-section (1) shall be allowed to cancel the notice. 3[(3) The returning officer shall, on being satisfied as to the genuineness of a notice or withdrawal and the identity of the person delivering it under sub-section (1), cause the notice to be affixed in some conspicuous place in his office.

Election result in case of fraudulent withdrawal:

When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate. Continue reading

Legal doctrine of Occupied Field

Doctrine of Occupied Field is attracted in a variety of ways. For example if a special law covers a subject, general law stands automatically excluded because that field of law is already occupied.

Claim of Gratuity made  under Section 33-C(2) Industrial Disputes Act instead of Payment of Gratuity Act — Validity.

It was urged that the Payment of Gratuity Act is a self-contained code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly exclude recourse to any other statute for that purpose.

Supreme Court accepted this contention in following words:

“A careful perusal of the relevant provisions of the Payment of Gratuity Act shows that Parliament has enacted a closely knit scheme providing for payment of gratuity. A controlling authority is appointed by the appropriate Government under section 3 and Parliament has made him responsible for the administration of the entire Act. In what event gratuity will become payable and how it will be quantified are detailed in section 4. Section 7(1) entitled a person eligible for payment of gratuity to apply in that behalf to the employer. Under section 72, the employer is obliged,as soon as gratuity becomes payable and whether an application has or has not been made for payment gratuity, to determine the amount of gratuity and inform the person to whom the gratuity is payable specifying the amount of gratuity so determined. He is obliged, by virtue of the same provision, to inform the controlling authority also, thus ensuring that the controlling authority is seized at all times of information in regard to gratuity as it becomes payable. If a dispute is raised in regard to the amount of gratuity payable or as to the admissibility of any claim to gratuity, or as to the person entitled to receive the gratuity, section 7(4) a requires the employer to deposit with the controlling authority such amount as he admits to be payable by him as gratuity. The controlling authority is empowered. under section 7(4)(b), to enter upon adjudication of the dispute, and after due inquiry, and after giving the parties to the dispute a reasonable opportunity of being heard, he is required to determine the amount of gratuity payable.

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Lapse of land acquisition due to delay.

Effect of Delay in Land Acquisition Proceedings:

Delay of over two years in publication of declaration:
Under Land Acquisition Act, 1894, notification of declaration must be published within 2 years from date of notification u/s. 4 of the said Act of 1894:

In this case,

(1) Declaration under Section 6 is published in the Gazette on 22/5/2008;

(2) Declaration under Section 6 is published in two local news papers on 10/6/2008 and 13/6/2008. There is no publication in village Chawadi as per the record and

(3) The award is passed on 12/10/2010. Continue reading

Recovery of fine for dishonour of cheque.

Recovery of fine.

Whether when compensation is ordered as payable for an offence committed under Section 138 of the Negotiable Instruments Act, and in default thereof, a jail sentence is prescribed and undergone, is compensation still recoverable?

The facts were that the complainant approached the Magistrate under Section 138 of the Negotiable Instruments Act in a transaction where the accused had borrowed a sum of Rs.2.75 lakh from the complainant. When the complainant demanded the amount, the accused issued a cheque for the said amount which was returned as dishonoured due to insufficiency of funds. The requisite demand notice was sent by the complainant to the accused followed by the complaint. Ultimately, the accused was found guilty of the offence under Section 138, and was convicted

Will undergoing imprisonment due to default in payment of fine will wipe out liability?

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Application of Limitation Act on Execution Proceedings

Objection application to Execution:

Execution proceedings are governed by Order 21 of

Civil Procedure Code 1908

Condonation of delay in seeking to set aside ex parte order:

Section 5 of the present Limitation Act, 1963, states that any appeal or any application under any of the provisions of Order 21, Civil Procedure Code, 1908, may be admitted after the prescribed period if the appellant or the appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. The Explanation is omitted as unnecessary. Therefore, with reference to applications under Order 21, Civil Procedure Code, there is the statutory bar in applying section 5 of the Limitation Act.

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Identification of accused in Court: Procedure.

If the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence.

Evidence Act; Section 8 and 9:

“Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.”

It was further held:

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

It was further held that “the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath”.

[Source: Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1]

“In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time”

[Source: Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC 2562]

“Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.

[Source: Jana Yadav vs. State of Bihar, (2002) 7 SCC 295]

It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible.

[Source: Rabindra Kumar Pal @ Dara Singh v. Republic Of India, Sup. Ct. on 11 Jan. 2011]