Admiralty Jurisdiction of High Courts in India

Power to arrest a ship docked on ports of India:

Powers of High Courts:

In the absence of any statute in India comparable to the English statutes on admiralty jurisdiction, there is no reason why the words `damage caused by a ship’ appearing in section 443 of the Merchant Shipping Act, 1958 should be so narrowly construed as to limit them to physical damage and exclude any other damage arising by reason of the operation of the vessel in connection with the carriage of goods. The expression is wide enough to include all maritime questions or claims. If goods or other property are lost or damaged, whether by physical contact or otherwise, by reason of unauthorised acts or negligent conduct on the part of the shipowner or his agents or servants, wherever the cause of action has arisen, or wherever the ship is registered, or wherever the owner has his residence or domicile or place of business, such a ship, at the request of the person aggrieved, is liable to be detained when found within Indian jurisdiction by recourse to sections 443 and 444 of the Merchant Shipping Act, 1958 read with the appropriate rules of practice and procedure of the High Court. These procedural provisions are but tools for enforcement of substantive rights which are rooted in general principles of law, apart from statutes, and for the enforcement of which a party aggrieved has a right to invoke the inherent jurisdiction of a superior court. Continue reading “Admiralty Jurisdiction of High Courts in India” →

Sale deed or Mortgage by Conditional Sale

Transfer of Property Act, 1882; Section 58.

Determination of Sale Deed containing condition for repurchase.

A bare reading of the original document reveals that it is styled as a sale deed. The vendor specifically recites that he had purchased the property for a sum of Rs.1500/- by sale deed dated 22.6.1948, from its original owners. That he was the exclusive owner of the property, which was not encumbered in any manner and that he had absolute title and authority singularly, to deal with the same to the exclusion of his brothers, from whom he had separated long ago. He was selling the shop for a sum of Rs.4000/- because he had purchased a motor vehicle, which he wanted to run on hire. On receipt of the consideration money he was voluntarily transferring all right, title and interest in the property to the vendee and his legal heirs for all times to come. If the property was found to be encumbered in any manner, the vendee could approach the court, for return of the sale amount, including against the immovable property of the vendor. If the amount was returned within a period of 5 years, either in installments or in lump-sum, the purchaser would execute the sale deed in his favour. Continue reading “Sale deed or Mortgage by Conditional Sale” →

Limitation for appeal u/s 30(1) of Recovery of Debts and Bankruptcy Act, 1993

Application of Section 5 of Limitation Act on RDB Act.

Condonation of delay in filing appeal against order of Recovery Officer.

The Recovery of Debts and Bankruptcy Act, 1993 Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the Legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The appellate tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery officer therefore cannot be condoned by application of Section 5 of the Limitation Act.

[Source: International Asset Reconstruction vs. Official Liquidator, decided by SC on 24 October 2017]

Arbitration agreement prohibiting grant of interest

When the terms of the agreement had prohibited award of interest, the Arbitrator could not award interest for the pendente lite period.

Clause 13 (3) of the contract entered into between the parties read as under:

“13(3). No interest will be payable upon the earnest money and the security deposit or amounts payable to the contractor under the contract, but Government Securities deposited in terms of sub-clause(1) of this clause will be repayable with interest accrued thereon.”

It has been held thus: Continue reading “Arbitration agreement prohibiting grant of interest” →

Instigation or Abetment to suicide

What is the meaning of instigation?

Facts:

The picture which emerges from a cumulative reading and assessment of the material available is this. Presumably because of disinclination on the part of the accused to drop the deceased at her sister’s residence the deceased felt disappointed, frustrated and depressed. She was overtaken by a feeling of shortcomings which she attributed to herself. She was overcome by a forceful feeling generating within her that in the assessment of her husband she did not deserve to be his life-partner. The accused Ramesh may or must have told the deceased that she was free to go anywhere she liked. May be that was in a fit of anger as contrary to his wish and immediate convenience the deceased was emphatic on being dropped at her sister’s residence to see her. Presumably the accused may have said some such thing you are free to do whatever you wish and go wherever you like. The deceased being a pious Hindu wife felt that having being given in marriage by her parents to her husband, she had no other place to go excepting the house of her husband and if the husband had “freed” her she thought impulsively that the only thing which she could do was to kill herself, die peacefully and thus free herself according to her understanding of the husband’s wish. Can this be called an abetment of suicide?

Continue reading “Instigation or Abetment to suicide” →

Attempt to murder

Difference between attempt to murder and causing grievous hurt.

Penal Code, 1860, Section 307 and 324:

307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. Continue reading “Attempt to murder” →

Procedure for speedy justice in matters of dishonour of cheques.

Negotiable Instruments Act, 1881

Compounding the offence under Section 138 of the Negotiable Instruments Act, 1881 on payment of the cheque amount and in the alternative for exemption from personal appearance.

How the proceedings for an offence under Section 138 of the Act can be regulated where the accused is willing to deposit the cheque amount? Whether in such a case, the proceedings can be closed or exemption granted from personal appearance or any other order can be passed?

i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court. Continue reading “Procedure for speedy justice in matters of dishonour of cheques.” →

Malice in law is different from malice in fact

Mens rea not necessary to prove malice of law:

Rule of law:

The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously.

[Source A.K. Kaipak vs. Union of India, A. 1. R. 1970 SC 150]

Malice in fact and in law.

Continue reading “Malice in law is different from malice in fact” →

Claim of depreciation u/s. 80-IA of Income Tax Act, 1961

Deduction for depreciation u/s. 80-IA of Income Tax Act, 1961

Whether claim for deduction on account of depreciation under Section 80-IA is the choice of the assessees or it has to be necessarily taken into consideration while computing the income under this provision?

Section 80-IA of the IT Act at relevant time was as under:

“80-IA. Deductions in respect of profits and gains from industrial undertakings etc., in certain cases.- (1) Where the gross total income of an assessee includes any profits and gains derived from any business of an industrial undertaking or a hotel or operation of a ship or developing, maintaining and operating any infrastructure facility or scientific and industrial research and development or providing telecommunication services whether basic or cellular including radio paging, domestic satellite service or network of trunking and electronic data interchange services or construction and development of housing projects or operating an industrial park or commercial production or refining of mineral oil in the North Eastern Region or in any part of India on or after the 1st day of April, 1997 (such business being hereinafter referred to as the eligible business), to which this section applies, there shall, in accordance with and subject to the provisions of this section, be allowed in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to the percentage specified in sub-section (5) and for such number of assessment years as is specified in sub-section (6).”

Continue reading “Claim of depreciation u/s. 80-IA of Income Tax Act, 1961” →

Revisional jurisdiction of National Consumer Commission

Dismissal of complaint itself in Revision by Complainant:

Can National Commission dismiss a complaint on a ground which was not raised by the opposite party alone?

Please note that except Limitation Act, no law enjoins a court to reject a claim on its own. In an adversary litigation, objection has to be pleaded by one party and responded by the other party. Following this principles, the Supreme Court set aside order of National Consumer Dispute Redressal Commission with following observations:

5. At the outset, we may notice that this was not a defence raised by the respondent either before the District Forum or before the State Commission. In fact, the respondent had not even challenged the order of the State Commission. In our view, the National Commission, in a revision petition filed by the complainant praying for increase of compensation and payment of interest, could not have dismissed the petition itself. We, therefore, set aside the order of the National Commission.

Continue reading “Revisional jurisdiction of National Consumer Commission” →