Courts should refrain from passing orders incapable of implementation.

The High Court should normally consider the possibility of the implementation of the directions given by it, and such directions which are incapable of being implemented should be avoided.

The doctrine of impossibility, in our view, would be equally applicable to Court orders as well. While concluding, we may also mention that in matters which have transnational and international ramifications, the High Court should normally refrain from issuing directions in such matters,especially when such matters of national level are being considered by this Court in separate proceedings.

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Considerations for Transfer of Criminal Trial out of State

Balancing the convenience

While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses,the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.

Credibility of Judiciary:

The transfer of trials from one state to another would inevitably reflect on the credibility of the State’s judiciary and but for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked. This case is not perceived to be one of those exceptional categories.

Accused/Journalist involved in property disputes:

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Civil Suit: Trial has to be de novo after return of plaint

Jurisdiction of Civil Court:

It is no more res­integra that in a dispute between parties where two or more courts may have jurisdiction, it is always open for them by agreement to confer exclusive jurisdiction by consent on one of the two courts. Clause 16B of the agreement extracted above leaves us in no doubt that the parties clearly indicated that it was only the court at Delhi which shall have exclusive jurisdiction with regard to any dispute concerning the franchise agreement and no other court would have jurisdiction over the same. In that view of the matter, the presentation of the plaint at Gurgaon was certainly not before a court having jurisdiction in the matter.

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Difference between Court and persona designata!

A persona designata is a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.

[per Schwabe, C.J. in Parthasaradhi Naidu v. Koteswara Rao]

Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.

[Source: Secretary of State for India v. Chelikani Rama Rao (1916) L.R. 43 I.A. 192 : S.C. 18 Bom. L.R. 1007 relied in Adaikappa Chettiar v. R. Chandrasekhara Theva, (1948) 50 BOMLR 18]

Whether the order passed by the City Civil Court in exercise of power under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in the capacity of a Civil Court or persona designata?

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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”

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.

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Meaning of Competent Court under MCOCA

Meaning of organised crime

In re: Maharashtra Control of Organised Crime Act, 1999 (MCOCA) as applied to Delhi under Delhi Laws Act:

The commission of crimes like contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering, etc. by organised crime syndicates was on the rise. To prevent such organised crime, an immediate need was felt to promulgate a stringent legislation. The Government realized that organised crime syndicates have connections with terrorist gangs and were fostering narcotic terrorism beyond the national boundaries. MCOCA was promulgated with the object of arresting organised crime which was posing a serious threat to the society. The interpretation of the provisions of MCOCA should be made in a manner which would advance the object of MCOCA. Continue reading “Meaning of Competent Court under MCOCA”

Appeal to High Court u/s 27-A of Wealth Tax Act

Nature of appeal u/s 27-A of Wealth Tax Act

Section 27-A of the Act, which provides a remedy of appeal to the High Court against the order of the Income Tax Appellate Tribunal, is modeled on existing Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). Indeed, as would be clear, the language of Section 27-A of the Act and Section 100 of the Code is identical. Both the Sections are, therefore, in pari materia. It is a case where Section 100 of the Code is bodily lifted from the Code and incorporated in Section 27-A of the Act with minor additions and alterations. Continue reading “Appeal to High Court u/s 27-A of Wealth Tax Act”

Jurisdiction for trial for dishonour of cheque

The Negotiable Instruments (Amendment) Act 2015

The Above Amendment Act came in to force with retrospective effect. According to the notification published in the official Gazette dated 26.12.2015 the Amendment shall be deemed to have come into force on the 15th day of June, 2015. Rajya Sabha passed the Negotiable Instrument (Amendment) Bill 2015 on 7th December 2015 . Lok Sabha had passed the Bill in August 2015. The Act will replace Negotiable Instrument (Amendment) ordinance which was re-promulgated on 25th September 2015. The amendment makes changes in provisions relating to the territorial jurisdiction for filing Cheque dishonour Cases in the Negotiable Instrument Act.

Effect of Amendment Act of 2015

As per the Amendment the offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Background of Amendment Act of 2015

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Territorial Jurisdiction of Court

Determination of territorial jurisdiction of court

CPC, Section 15 to 20 govern territorial jurisdiction:

Section 15 to 20 of the Code of Civil Procedure indicate the place where a suit can be instituted. Section 15 states that every suit shall be instituted in the court of the lowest grade competent to try it. Section 16 then proceeds to state that the the suit shall be instituted where the subject-mater is situate. Then comes Section 20 which is relevant for our purposes. It reads as under:

20. Other suits to be instituted where defendants reside or cause of action arises- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the. defendants where there are more then one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation: A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Application of clause (c) of section 20 of CPC:

It will thus be seen that Clauses (a) and (b) are not attracted in the facts of this case. None of defendants at the time of the commencement of the suit actually and voluntarily resides or carried on business or personally worked for gain within the territorial jurisdiction of the Chandigarh Court. Clause (b) can apply only if atleast one of the defendants actually and voluntarily resided or carried on business or personally worked for gain while the others did not. But that is not the case here. The case must, therefore, be governed by Clause (c) which requires that the whole or part of the cause of action must be shown to have arisen within the territorial limits of the Chandigarh Court. Now as is evident from the averments in the plaint no part of the cause of action arose within the territorial jurisdiction of the Chandigarh Court. On the averments in the plaint taken at their face value the case set up by the plaintiff is that after his father left Mandsaur his two brothers joined hands, manipulated the accounts and siphoned away the funds belonging to the partnership firm. The entire dispute is in relation to what happened at Mandsaur. Secondly, it must also be remembered that even according to the plaintiff after his father returned to Mandsaur there was some talk of settlement of the dispute and consequently an agreement was executed on 26th November, 1992 at Bhilai by which the partnership was dissolved and it was agreed that the liabilities would be settled within one month. Now this agreement was executed outside the territorial jurisdiction of the Chandigarh Court. Unless this agreement is set aside there is no question of the Chandigarh Court entertaining a suit for dissolution of the partnership and rendition of accounts. The plaintiff cannot wish away the agreement by merely suiting that it is a void document. He cannot rest content by alleging that the document has no efficacy in law and must, therefore, be ignored. If it is the case of the plaintiff that this document was obtained by fraud or misrepresentation by suppression of material facts or for any other like reason he must have the agreement set aside through Court and unless he docs that he cannot go behind the agreement, ignore it as a void document and proceed to sue for dissolution of the partnership and rendition of accounts. It is not a matter of the volition of the plaintiff to disregard the document as void and proceed to ignore it altogether without having it declared void by a competent Court. It, therefore, appears clear to us that no part of the cause of action arose within the territorial jurisdiction of the Chandigarh Court.

Averments about territorial jurisdiction in plaint:

Para 7 of plaint stated as under:

That the plaintiff himself was doing business of the firm from Chandigarh and in that connection had been engaged in all operations necessary for conduct of business. In fact, the Head Office of the firm was at Bombay where the firm was registered. The factory/plant was located at Mandsaur. Chandigarh was one of the Branch Office of the firm M/s. Rajaram and Brothers. Not only this, the stationary printed by the firm also showed that Chandigarh is the Branch Office of the firm. The stationery has been in continuously use since the year 1974.

Vague description of activity can not help:

The averment does not say that any of the defendants were involved in carrying on business at Chandigarh. The plaintiff is quite vague as to the type of business activity as was carrying on. He also does not say whether it was with the consent of the other partners or his own. There is no averment that intimation of the opening of the branch at Chandigarh was given to the Registrar of Firms as required by Section 61 of the Partnership Act. Printing of stationery is neither here nor there. It is not the plaintiffs say that accounts were maintained in respect of business at Chandigarh. Mere bald allegation that he was having a branch office of the firm at Chandigarh will not confer jurisdiction unless it is shown that a part of the cause of action arose within the territorial jurisdiction of that Court. None of the defendants was ever residing in Chandigarh or did any business whatsoever in Chandigarh and, therefore, suit was not maintainable.

[Source: Subodh Kumar v. Shrikant Gupta. (Supreme Court of India)]