Does Arbitration bars remedy under SARAFESI Act

Effect of Arbitration Clause.

Loan agreements contained arbitration clauses which were invoked by the appellant with the filing of cases under Section 9 of the Arbitration and Conciliation Act, 1996. In view thereof, initiation of any other proceedings under the SARFAESI Act if impermissible in law?

Because arbitration is an alternative to the proceedings under the RDB Act, it would not be obligatory on the Bank/Financial Institution to withdraw the proceedings pending before the arbitrator, prior to resorting to secure its interest under the SARFAESI Act. The Bank/financial institution can simultaneously proceed before the Arbitral Tribunal for adjudication of disputes and also take recourse to Section 13 of the SARFAESI Act for enforcement of its security interest. Both the proceedings can continue parallel to each other. Continue reading “Does Arbitration bars remedy under SARAFESI Act”


Jurisdiction of Court created under Kerala Cooperative Societies Act

Industrial or Labour Court vs. Cooperative Court

Whether a service dispute arising between the Cooperative Society’s Employee and his Employer is capable of being tried by the forum prescribed under the KCS Act or by the machinery provided under the ID Act or it is capable of being tried under both the Acts leaving the aggrieved person to select one forum under any of the Acts of his choice out of the two for getting his/her service dispute decided by such forum?

First, the language of Section 69 of the KCS Act as it originally stood is materially different from the language used in its counter part Sections of two earlier repealed Kerala Co-operative Societies Acts of 1932 and 1951. This departure made in the language employed in Section 69 of the KCS Act qua language of earlier two repealed Acts is significant and has a material bearing while answering the questions. Continue reading “Jurisdiction of Court created under Kerala Cooperative Societies Act”

Objections to the execution of decree for possession

Scope of powers of Executing Court:

The respondents instituted a suit under Section 6 of the Specific Relief Act against the appellant, alleging that the appellant had forcibly taken possession of the land. In response it was the case of the appellant that he was neither in possession of the land nor had he dispossessed the respondents. The suit was decreed by the trial court ex-parte on 30 May 2009, upon which execution was initiated by the respondents as decree-holders.

Bar u/s 185 of Land Reforms Act:

The appellant appears to have filed objections to the execution of the decree on 12 July 2010 on the ground that Section 185 of the Delhi Land Reforms Act bars a civil suit for the recovery of possession. The objections were dismissed by the executing Court on 21 August 2010 with the following observations:

“The Delhi Land Reforms Act is applicable with regard to the agricultural land only but the land in question is not agriculture land which has been vehemently argued by the counsel for the DH and in support of her contention placed on record the copies of the electricity bills pertaining to the same khasra number which is subject matter of the instant execution proceedings. Even otherwise, it is a matter of common knowledge that most of the rural land in Delhi has become urbanized and private colonies, may be unauthorized, have mushroomed on such agricultural land. This fact has since been substantiated with the help of electricity bills which takes out the sting from the contentions raised by the counsel for the objector and in the process strengthens the case of the DH, the arguments is thus, brushed aside that the court lack of inherent jurisdiction on account of the fact that land in question is governed by the Delhi Land Reforms Act being agriculture land.” The order of the executing court was challenged by the appellant under Article 227 of the Constitution. The High Court dismissed the petition by its judgment dated 19 September 2014. The High Court rejected the submission that the decree obtained under Section 6 of the Specific Relief Act was a nullity on the ground that the suit was barred by Section 185 of the Delhi Land Reforms Act, 1954.”

The High Court has relied upon the earlier decisions of the court following Ram Lubbaya Kapoor v J R Chawla (1986 RLR 432), in which it has been held that to be ‘land’ for the purpose of the Delhi Land Reforms Act,1954, the land must be held or occupied for purposes connected with agriculture, horticulture or animal husbandry and if it is not used for such purposes, it ceases to be land for the purposes of the Act. The same view has been taken by the Delhi High Court in Narain Singh and Anr v Financial Commissioner ((2008) 105 DRJ 122), Neelima Gupta and Ors v Yogesh Saroha (156 (2009) DLT 129), and Anand J Datwani v Ms Geeti Bhagat Datwani (2013 (137) DRJ 146).

Scope of power of executing court: (See section 47 of CPC)

The validity of a decree can be challenged before an executing court only on the ground of an inherent lack of jurisdiction which renders the decree a nullity. In Hira Lal Patni v Sri Kali Nath ((1962) 2 SCR 747),  Court held thus: Continue reading “Objections to the execution of decree for possession”

Public endowment vs. private endowment

Dispute about endowment being private or public.

The suit temple, as is asserted by the respondents, came to be registered in the Books of Endowment (Muntakab of Registry of Endowment) recording the name of Gokarnath Tiwari, the father of the appellants as the endower of Wakf (that is the temple) on 16th Aban 1345 Fasli (corresponding to the year 1936 as per the English Calendar). The extract from the Registry of Endowment discloses that the entry had been made as per the order of the Minister, Ecclesiastical Department as contained in File No.60/1 of 1945 Fasli (corresponding to the year 1933) of the Directorate of Endowment. This document also indicated that it had been published in the contemporary Official Gazette.

Evidence in suit for declaration

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Form of demand notice under Insolvency Code.

Validity of demand notice by lawyer:

Whether a demand notice of an unpaid operational debt can be issued by a lawyer on behalf of the operational creditor?

5. Demand notice by operational creditor.— (1) An operational creditor shall deliver to the corporate debtor, the following documents, namely.-

(a) a demand notice in Form 3; or

(b) a copy of an invoice attached with a notice in Form 4.

(2) The demand notice or the copy of the invoice demanding payment referred to in sub-section (2) of section 8 of the Code, may be delivered to the corporate debtor,

(a) at the registered office by hand, registered post or speed post with acknowledgement due; or

(b) by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor. (3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any.

Continue reading “Form of demand notice under Insolvency Code.”

Civil court has no jurisdiction to interfere with acquisition of land

Forum for judicial review of Land Acquisition:

Section 9 of CPC exclude jurisdiction of Civil Court:

Futile attempts have been made by respondent no. 4 only to see that the allottees are harassed and to keep the litigation pending. After the final notification, an award was passed and compensation was deposited. Possession was taken and the same was evidenced by the Panchanama prepared as far back as 23.09.1986. Notification under Section 16(2) of the Land Acquisition Act was issued on 20.01.1987 disclosing the factum of taking possession of the land in question. Attempt made by respondent no. 4 for getting the disputed land de-notified has also failed as far back as 15.01.1993, when the State Government has rejected the representation of respondent no. 4 seeking de-notification. The writ petition filed by respondent no. 4 challenging such order of dismissal of the representation was also dismissed. Despite the same, respondent no. 4 is pursuing the matter by filing writ petition after writ petition. It is a clear case of abuse of process of law as well as the Court.

Abuse of process of Court:

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Eviction under Delhi Rent Act.

Delhi Rent Act to prevail upon NDMC Act.

Effect of arrears of House tax:

The question is whether non-payment of property tax recoverable from the tenant as rent can be a ground for his eviction/ejectment from the premises. The Rent Act is beneficial and also restrictive in nature. It is primarily an Act to provide for the control of rents and evictions. It is settled that while interpreting the provisions of this Act, the Courts are under a legal compulsion to harmoniously read the provisions of the Act so as to balance the rights of the landlord and the obligations of the tenant towards each other, keeping in mind that one of the objects of the legislature while enacting the Rent Act was to curb the tendency of the greedy landlords to throw out the tenants paying lower rent and to rent out the premises at the market rate.

Delhi Rent Act:

Continue reading “Eviction under Delhi Rent Act.”

Contradictory defence of tenancy and adverse possession in a suit for possession

Pleading and Proof:

Plea of being tenant raised for the first time in second appeal:

First, the respondent (defendant) had not raised such plea in his written statement. In other words, the respondent did not set up such defense in the written statement.

Second, the Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement.

Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way.

Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea. Continue reading “Contradictory defence of tenancy and adverse possession in a suit for possession”

Remand of suit for retrial due to mistrial

What constituted Mistrial of suit?

In our considered opinion, the need to remand the aforementioned two LGCs to the Special Court is considered necessary due to the following reasons:

Non-consolidation of identical suits:

First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases.

It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting orders – one was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case. Continue reading “Remand of suit for retrial due to mistrial”

Unauthorised Construction and Rule of Law

Demolition of unauthorised construction

The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion the wherever it is required to be exercised has to be in accordance with law and set legal principles.
Continue reading “Unauthorised Construction and Rule of Law”