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”

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:

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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.”