March - lawupdates.orglawupdates.org/digest/2018/March/Digests of the Month.pdf · Code of Civil Procedure, 1908; S. 9 11 Code of Civil Procedure, 1908; S. 11, 47 & O. 9 R. 13 11

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Monthly Digest

March 2018

Citation: LU

: Editorial Board :

Updated Law Society

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Introduction

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Dated: 31.03.2018 Editorial Board Law Updates



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Context

Subject Index 7

Administration of Justice 7

Agreement ----- Whether conditions printed at back of rent receipt constitute agreement between landlord and

tenant? 7

Criminal Trial ------ Examination of eye witness 8

Criminal Trial 8

Impound of Passport: whether police can do the same 8

Impound of Passport: whether Court can do the same 8

Mutual Divorce 8

Constitution of India ----- Right to Die 9

Second Appeal 9

Words and Phrases ----- Cruelty 9

Words and Phrases --- Cruelty 10

Act Index 11

Arbitration and Conciliation Act, 1996; S. 8 ----- Whether presence of Arbitration clause in the agreement oust

the jurisdiction of Consumer Forum 11

Arbitration and Conciliation Act, 1996; S. 7 11

Code of Civil Procedure, 1908; S. 9 11

Code of Civil Procedure, 1908; S. 11, 47 & O. 9 R. 13 11

Code of Civil Procedure, 1908; O. 8 R. 6A 12

Code of Criminal Procedure, 1973; S. 125- Maintenance claim by wife ----- Entitlement if Divorce decree has been

passed in favour of husband on the ground of cruelty 12

Code of Criminal Procedure, 1973; S. 125 ----- Maintenance ---- Object and scope 12

Code of Criminal Procedure, 1973; S. 125 12

Code of Criminal Procedure, S. 125, 126 13

Code of Criminal Procedure, 1973; S.156----Whether Magistrate can interfere into investigation 13

Code of Criminal Procedure, 1973; S.156---- Whether Magistrate can interfere into investigation 13

Code of Criminal Procedure, 1973; S.156---- Whether Magistrate can interfere into investigation 14

Code of Criminal Procedure, 1973; S.156----Whether Magistrate can order for reopening of investigation 14


Code of Criminal Procedure, 1973; S. 309 ----- Power to postpone or adjourn proceedings 14



Code of Criminal Procedure, 1973; S. 340 read with S. 195- Maintenance claim by wife ----- Tampering with the

record of judicial proceedings and filing of false affidavit in a court of law 15


Code of Criminal Procedure, 1973; 378(1)/ 378(4) 16

Code of Criminal Procedure, 1973; S.391 16

Code of Criminal Procedure, 1973; S. 437, 439 ----- Grant of Bail during pendency of TI Parade 16

Code of Criminal Procedure, 1973; Ss. 154, 156, 439 17


Code of Criminal Procedure, 1973; S. 482 ---- Quashing of Proceedings ---- Guidelines reiterated 17



Consumer Protection Act, 1986 19

Consumer Protection Act, 1986; 19


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Consumer Protection Act, 1986; ------- Whether presence of Arbitration clause in the agreement oust the

jurisdiction of Consumer Forum 19

Consumer Protection Act, 1986 ----- Whether buyer should wait for indefinite period for possession of the

property booked 20





Consumer Protection Act, 1986; S. 2(1) (d) 21

Consumer Protection Act, 1986; S. 13(2) (a) 21

Consumer Protection Act, Section 24-A 22

Constitution of India -------- Euthanasia 22

Development Control Regulations for Greater Bombay, 1991 22

Hindu Marriage Act, 1955; S. 9 23

Hindu Marriage Act, 1955; S. 13 ---- Cruelty 23

Hindu Marriage Act, 1955; S.13 ----- Cruelty 25




Hindu Marriage Act, 1955; S. 13B- Mutual Divorce 26

Hindu Marriage Act, 1955; S. 13B 27

Hindu Marriage Act, 1955; S. 13B 27


Hindu Succession Act, 1956 28

Indian Divorce Act, 1869; S.10A- Mutual Divorce 28

Indian Penal Code, 1860; S. 304A 28

Indian Penal Code, 1860; S. 420/34 29

Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer)

Act, 1963 29

Maharashtra Ownership Flats (Regulations of the Promotion of Construction etc) Rules. 1964 30

Passports Act, 1967; S. 10- Impound of Passport ------ whether police can do the same 30

Passports Act, 1967; S. 10- Impound of Passport ------ whether Court can do the same 31

Protection of Women from Domestic Violence, 2005; Ss. 18, 19, 20 ------ Relief when the complainant/wife failed

to prove Domestic Violence 31

Special Marriage Act, 1954; S. 27 31

Special Marriage Act, 1954; S.27 32

Special Marriage Act, 1954; S. 28 - Mutual Divorce 33

Special Marriage Act, 1954; S. 28 33

Transfer of Property Act, 1882 34

Maharashtra Regional and Town Planning Act, 1966 34

Maharashtra Apartment Ownership Act, 1970 35

Negotiable Instruments Act, 1881; S. 138/147 36

Negotiable Instruments Act, 1881; S. 138 36

Negotiable Instruments Act, 1881; S. 138/147 37

Negotiable Instruments Act, 1881; S.138 37





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Power of Attorney Act, 1882; S. 1A , 2 39

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; S. 13(2),

13(3A) 40

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; S.14 40

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act), S. 3(1)(ix),

3(2)(vi) and 3(2)(vii) read with 18 40

Transfer of Property Act, 1882 41

West Bengal Premises Tenancy Act, 1997; S. 7(1) & 7(2) 41

West Bengal Land Reforms and Tenancy Tribunal Act, 1997 42

West Bengal Land Reforms Act, 1955 42

West Bengal Land Reforms Act, 1955 42

Citation Index 43

Amardeep Singh vs Harveen Kaur; LU(MAR 1) 2018 43

Suresh Nanda vs C.B.I; LU (MAR 2)2018 43

Common Cause (A Regd. Society) vs Union of India and Another; LU(MAR 3) 2018 43

Shri Satyawan Laxman, Jagtap vs Smt. Vimal Saatyawan Jagtap & Another; LU(MAR 4) 2018 43

M.S.Ahlawat vs State Of Haryana and Another; LU(MAR 5) 2018 43

Koushik vs Sau. Sangeeta Koushik Gharami and others; LU(MAR 6) 2018 43

Shalini Lanbah vs M/s Unitech Limited and Another; LU(MAR 7) 2018 43

Sakiri Vasu vs State of U.P.; LU(MAR 8) 2018 43

Hanuman Ram vs The State of Rajasthan and Others; LU(MAR 10) 2018 43

Doonga Singh vs The State of Rajasthan; LU(MAR 11) 2018 43

Jaswant Raj Soni vs Prakash Mal; LU(MAR 12) 2018 43

M/s Emaar MGF Land Limited and Another vs Aftab Singh; LU(MAR 13) 2018 43

Kerala State Electricity Board and Another vs Kurien E. Kalathil and Another; LU(MAR 14) 2018 43

Damodar S. Prabhu vs Sayed Babalal H. LU(MAR 15) 2018 43

Balwinder Singh and Others vs Baljit Singh; LU(MAR 16) 2018 43

Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors vs State of Gujarat and Another; LU(MAR 17) 2018

43

Suranjan Guria vs Smt. Bibi Rani Jena & Ors; LU(MAR 18) 2018 43

Mohd. Hussain @ Julfikar Ali vs The State (Govt of NCT) Delhi; LU(MAR 19) 2018 43

State of Gujrat vs Mohanlal Jitamaljiporwal and Another; LU(MAR 20) 2018 43

D. Karthikeyan vs M. Selvaraj; LU(MAR 21) 2018 43

A.Jayachandra vs Aneel Kaur; LU(MAR 22) 2018 43

Raj Talreja vs Kavita Talreja; LU(MAR 23) 2018 43

Tapan Kumar Saphui vs The State of West Bengal and Ors; LU(MAR 24) 2018 43

Horil vs Keshav and Another; LU(MAR 25) 2018 43

K. Subramani vs K. Damodara Naidu; LU(MAR 26) 2018 43

C. Narayanan vs State of Maharashtra and Another; LU(MAR 27) 2018 43

Subhash Chand vs State (Delhi Administration); LU(MAR 28) 2018 43

M. K. Products vs M/s Blue Ocean Exports (P) Ltd and Ors; LU(MAR 29) 2018 43

Anil Khatwani vs Nistha Khatwani; LU(MAR 30) 2018 43

Suraj Lamp and Industries Pvt Ltd vs State of Haryana and Another; LU(MAR 31) 2018 43

Bunga Daniel Babu vs M/s Sri Vasudeva Constructions & Ors; LU(MAR 32) 2018 43

Rani Dedeja vs State of Haryana; LU(MAR 33) 2018 43

Vijay Prakash Jarath vs Tej Prakash Jarath; LU(MAR 34) 2018 43


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Sri Ramehswar Yadav and others vs The State of Bihar and Another; LU(MAR 35) 2018 44

Om Prakash vs Reliance General Insurance and Another; LU(MAR 36) 2018 44

Nahalchand Laloochand Pvt Ltd vs Panchali Co-operative Housing Society Ltd; LU(MAR 37) 2018 44

Satish Chander Madan vs M/s Bajaj Allianz General Insurance Co.; LU(MAR 38) 2018 44

Shri Pradeep Narula and Anr vs M/s Granite Properties Pvt Ltd Anr; LU(MAR 39) 2018 44

Jitendra Balani vs M/s Unitech Ltd; LU(MAR 40) 2018 44

Sushil Kumar Metha vs Gobind Ram Bohra; LU(MAR 41) 2018 44

Santhini vs Vijaya Venketesh; LU(MAR 42) 2018 44

Mr. Mukesh Narayan Shinde vs Mrs. Palak Mukesh Shinde nee Palak D. Patel; LU(MAR 43) 2018 44

Nihar Ranjan Dash vs Smt. Sunita Sarangi; LU(MAR 44) 2018 44

M/s Meters and Instruments Private Limited and Another vs Kanchan Mehta; LU(MAR 45) 2018 44

Karunanidhi vs Seetharama Naidu and others; LU(MAR 46) 2018 44

Dipankar Sen and Others vs State of West Bengal and Others; LU(MAR 47) 2018 44

Lekhraj Maithil vs State of U.P. and Others; LU(MAR 48) 2018 44

Parveen Kumari vs Ramnish Kumar; LU(MAR 49) 2018 44

Sau. Savita vs Sachin Matotrao Sathone; LU(MAR 50) 2018 44

Dr. Subhash Kashinath Mahajan vs The State of Maharashtra and Another; LU(MAR 51) 2018 44

ITC Limited vs Blue Coast Hotels Ltd and Others; LU(MAR 52) 2018 44

Dr. Sou Jayshree Ujwal Ingole vs State of Maharashtra and Another; LU(MAR 53) 2018 44

Dr. Mukesh Nigam and Others vs State of Madhya Pradesh and Another; LU(MAR 54) 2018 MP 44

Shri Nitin vs Smt. Rekha; LU(MAR 55) 2018 BOM 44

Indian Machinery Company vs M/s Ansal Housing & Construction Ltd; LU(MAR 56) 2018 SC 44

National Insurance Co. Ltd vs Hindustan Safety Glass Works Ltd; LU(MAR 58) 2018 SC 44

Dr. J. J. Merchant & Ors vs Shrinath Chaturvedi; LU(MAR 59) 2018 SC 44

Bheru Singh vs State of Rajasthan and Others; LU(MAR 60) 2018 Raj 44

The State vs Raghuraj Singh; LU(MAR 61) 2018 ALL 44

State of West Bengal vs S. N. Basak; LU(MAR 62) 2018 SC 44

Subject Index: Administration of Justice ----- To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience.

LU(MAR 5) 2018 Agreement ----- Whether conditions printed at back of rent receipt constitute agreement between landlord and tenant? Held: it cannot be said on the basis of what is printed on the back side of the rent receipt that the parties had accepted it as a condition of the lease. The rent receipt is a document issued by the landlord acknowledging receipt of payment of rent by him. Conditions printed at the back of rent receipt cannot be said to be a conscious decision taken by the parties governing the lease of premises. Terms and conditions of a lease result from conscious decision of parties. LU(MAR 12) 2018


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Criminal Trial ------ Examination of eye witness ------ it is necessary in the interest of justice that the eye-witnesses are examined by the prosecution at the earliest ------ the statements of eye-witnesses are got recorded during investigation itself under Section 164 of the Cr.P.C. In view of amendment to Section 164 Cr.P.C. by the Act No. 5 of 2009, such statement of witnesses should be got recorded by audio-video electronic means; LU(MAR 11) 2018

Criminal Trial ------ The Cr.P.C. provides that in all criminal prosecutions, the accused has a right to have the assistance of a counsel and the Cr.P.C. also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. LU(MAR 19) 2018 Impound of Passport: whether police can do the same------ Held: while the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. LU(MAR 2) 2018; Impound of Passport: whether Court can do the same------ Held: Even Court cannot impound a passport; LU(MAR 2) 2018; Mutual Divorce: Period of Six months can be waived off ------ Supreme Court observed: where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following : i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to


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reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony. LU(MAR 1)2018; Constitution of India ----- Right to Die -------- Held: (a) The right to die with dignity as fundamental right has already been declared by the Constitution Bench judgment of this Court in Gian Kaur case (supra) which we reiterate. (b) We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life saving devices. (c) A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred

to above. LU(MAR 3)2018; Second Appeal ------ High Court has jurisdiction to hear second appeal only on the substantial question of law framed under section 100(5) of the Code of Civil Procedure 1908 ------ The High Court has no jurisdiction to decide the appeal on the question which is not framed as required under section 100(4) of the Code. LU(MAR 46) 2018; Words and Phrases ----- Cruelty ----- can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong.

Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same


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time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

The expression ’cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted

To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. LU(MAR 22) 2018; Words and Phrases --- Cruelty ----- What amounts to ----- wife made reckless, defamatory and false accusations against her husband, his family members


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and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers ----- Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 ----- if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty; LU(MAR 23) 2018; Act Index: Arbitration and Conciliation Act, 1996; S. 8 ----- Whether presence of Arbitration clause in the agreement oust the jurisdiction of Consumer Forum ----- Observation of the National Consumer Disputes Redressal Commission by holding that Arbitration clause in the agreement cannot circumscribe the jurisdiction of a Consumer For a notwithstanding the amendments made to Section 8 of the Arbitration Act. LU(MAR 13) 2018

Arbitration and Conciliation Act, 1996; S. 7--- Reference to Arbitration ---- Jurisdictional pre-condition for reference to arbitration under Section 7 of the Arbitration and Conciliation Act is that the parties should seek a reference or submission to arbitration ------- So far as reference of a dispute to arbitration under Section 89 CPC, the same can be done only when parties agree for settlement of their dispute through arbitration in contradistinction to other methods of alternative dispute resolution mechanism stipulated in Section 89 CPC ------ oral consent given by the counsel without a written memo of instructions does not fulfill the requirement under Section 89 CPC. LU(MAR 14) 2018 Code of Civil Procedure, 1908; S. 9 ----- Jurisdiction of Civil Court ----- It is also well settled that under section 9 of the Civil Procedure Code, the civil court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority. LU(MAR 25) 2018; Code of Civil Procedure, 1908; S. 11, 47 & O. 9 R. 13 ------ Jurisdiction determination of ----- Court without jurisdiction passing decree ----- nullity ,and non est ----- Does not operate as res judicata ----- A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise of jurisdiction, lacks inherent jurisdiction ----- It is a coram non judice ----- A decree passed by such a court is a nullity and is


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non est ----- Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings ----- The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party LU(MAR 41) 2018; Code of Civil Procedure, 1908; O. 8 R. 6A ----- Order 8 Rule 6A of the C.P.C -- Suit Filed on 09.11.1992 -- Written Statement filed on 11.11.1992 -- Issue framed on 18.10.1993 – Counter claim filed on 17.06.1996, for different cause of action, when the evidence of respondent-plaintiff has just commenced – Trial Court accepted the counter claim on 18.10.1996 -- Civil Miscellaneous Writ Petition filed before Hon’ble High Court against the order dated 18.10.1996 was allowed –Impugned order passed by the High Court dated 02.01.2008 set aside

and order passed by the trial court dated 28.10.1996 restored by the Hon’ble Court as no prejudice would be caused to the respondent-plaintiff, if the counter-claim was to be adjudicated upon and no serious injustice or irreparable loss would be suffered by him. LU(MAR 34) 2018; Code of Criminal Procedure, 1973; S. 125- Maintenance claim by wife ----- Entitlement if Divorce decree has been passed in favour of husband on the

ground of cruelty ------ A Divorce was passed in favour of the husband not only on the ground of cruelty and desertion but also on the ground of wife living in adultery. It was held that so far as the liability of the husband for the payment not only of the future maintenance but even in regard to the arrear of maintenance was concerned, the husband would not be liable to pay the same; LU(MAR 4)2018; Code of Criminal Procedure, 1973; S. 125 ----- Maintenance ---- Object and scope ---- Held: The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. (Para 5) ------ The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband ---- The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. LU(MAR 9) 2018 Code of Criminal Procedure, 1973; S. 125 ------ Right to maintenance for a daughter after attaining majority ----- Held: the right of a girl for maintenance from parents after attaining majority till her marriage is recognized under the personal law applicable to the parties, in that case even the major daughter


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shall be entitled to have maintenance till she gets married ----- it would create inconvenience to the major daughter if she is denied maintenance under section 125 Cr.P.C. as she would be forced to file another petition under sub-section 3 of Section 20 of the Hindu Adoptions and Maintenance Act ----- Thus in order to avoid multiplicity of litigation and on a combined reading of section 125 Cr.P.C. and section 20(3) of the Hindu Adoptions and Maintenance Act, the liability of the father of providing maintenance to an unmarried dependent girl extends beyond attainment of majority; LU(MAR 48) 2018; Code of Criminal Procedure, S. 125, 126; ------- Territorial Jurisdiction to file case for maintenance ------- Regarding the place of institution and adjudication of the maintenance proceeding, it is indicated therein that such proceeding can

be taken against any person in any district, inter alia, where the wife resides ----- The word ‘reside’ means to live or to have a dwelling place or an abode and is not equivalent to something in the nature of having a domicile in a particular place or having a place as the place of origin or the place where the family used to live ----- The words ‘where he or his wife resides’ in section 126(1)(b) of the Code has been interpreted to mean not only domicile in the technical sense of that word but also something more than a flying visit to or a casual stay in a particular place contemplating animus manendi or an intention to stay for a period. The length of the period is dependent upon the circumstances of each case ------ Thus a person ‘resides’ in a place if he/she through choice makes it his/her abode permanently or temporarily and whether he/she has chosen to make a particular place his/her abode or not depends upon the facts and circumstances of each case ----- The territorial jurisdiction is to be determined on the date of filing the application. Even if the wife resides at a place temporarily on the date of filing of the application under section 125 Cr.P.C., the concerned Court within whose territorial jurisdiction she is residing, can entertain such application. (Para 7); LU(MAR 44) 2018;

Code of Criminal Procedure, 1973; S.156----Whether Magistrate can interfere into investigation ------ Held: Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. (Para 15) LU(MAR 8) 2018

Code of Criminal Procedure, 1973; S.156---- Whether Magistrate can interfere into investigation ------ Held: we are of the view that although


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Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision. (Para 24) LU(MAR 8) 2018

Code of Criminal Procedure, 1973; S.156---- Whether Magistrate can interfere into investigation ------ Held: In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. (Para 17) LU(MAR 8) 2018 Code of Criminal Procedure, 1973; S.156----Whether Magistrate can order for

reopening of investigation ------ Held: the Magistrate can order re-opening of the investigation even after the police submits the final report; (Para 16) LU(MAR 8) 2018;

Code of Criminal Procedure, 1973; S. 205 ------ Exemption from personal appearance ----- Case under section 498A IPC read with S.4 of D.P. Act at Patna ----- Appellant No. 1 is a retired Army personal and residing in Pune, Appellant No. 2, Appellant No. 3 and 4 are also resident of Pune and the husband is working in Hyderabad ------- The appellants are engaged in their respective jobs at their respective places ------ Sufficient grounds are there to allow application under section 205 Cr.P.C.; LU(MAR 35) 2018;

Code of Criminal Procedure, 1973; S. 309 ----- Power to postpone or adjourn proceedings ---- Once examination of witnesses begins, the same has to be continued from day-to-day unless evidence of the available witnesses is recorded, except when adjournment beyond the following day has to be granted for reasons recorded; LU (MAR 11) 2018 Code of Criminal Procedure, 1973; S. 311 ----- Recall of witness ---- The first part of the section gives purely discretionary authority to a Criminal Court


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and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and reexamine any person whose evidence has already been recorded ------ the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case ------ This is a supplementary provision enabling, and in certain circumstances imposing on the Court by duty of examining a material witness who would not be brought before it. LU(MAR 10) 2018 Code of Criminal Procedure, 1973; S. 311 ----- Recall of witness ---- Objective ------ The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the

witnesses examined from either side ---- to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. LU(MAR 10) 2018 Code of Criminal Procedure, 1973; S. 340 read with S. 195- Maintenance claim by wife ----- Tampering with the record of judicial proceedings and filing of false

affidavit in a court of law has the tendency of causing obstruction in the due course of justice. It undermines and obstructs free flow of the unsoiled stream of justice and aims at striking a blow at the rule of law. The stream of justice has to be kept clear and pure and no one can be permitted to take liberties with it by soiling its purity. Since we are prima facie satisfied that the tenant has filed false affidavits and tempered with the judicial record, with a view to eradicate the evil of perjury, we consider it appropriate to direct the Registrar of this Court to file a complaint before the appropriate court and set the criminal law in motion against the tenant, the appellant in this case namely Mohan Singh; LU(MAR 5) 2018 Code of Criminal Procedure, 1973; S. 323 ----- Commitment of Case ----- There must be Judicial satisfaction of the Magistrate concerned for committal of the case and that can be had upon consideration of the facts and circumstances of the case requiting such commitment of the case by the Magistrate ----- while empowering the Magistrate concerned to consider and decide upon the question of commitment of the case to the Court of Session, does not confer any right upon the compLainant in this respect and, by virtue of the provision of the section, it is only the satisfaction of the Magistrate concerned upon which, at any stage of the case, the Magistrate can commit the case to the Court of Session ----- It is important to note that the Section significantly presupposes and inheres a condition that, "it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be


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tried by the Court of Session" which only shows that the moment the Magistrate Judicially perceives that the case should be committed to the Court of Session the Magistrate loses jurisdiction to entertain and try the case. This is not the position in respect of the case on hand. LU(MAR 60) 2018 Raj; Code of Criminal Procedure, 1973; 378(1)/ 378(4) ----- Appeal against acquittal ------ whether in a complaint case, an appeal from an order of acquittal of the Magistrate would lie to the Sessions Court under Section 378(1) (a) of the Code or to the High Court under Section 378(4) of the Code ----- the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b) ----- appeals against orders of acquittal passed by a Magistrate in respect of a

cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate ----- complainant (private or public servant) makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court ----- a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court and not in the Sessions Court. LU(MAR 28) 2018; Code of Criminal Procedure, 1973; S.391 ----- The mere fact that six years had elapsed, for which time lag the prosecution was in no way responsible was no good ground for refusing to act in order to promote the ends of justice in an age when delays in the Court have become very common -----To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender ----- Rejection of the prayer under section 391 Cr.P.C. by the Hon’ble High Court was unjustified ------ Direction for recording evidence. LU(MAR 20) 2018; Code of Criminal Procedure, 1973; S. 437, 439 ----- Grant of Bail during pendency of TI Parade ----- Section 154 deals with information in cognizable offences and Section 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under Section 439 or under the inherent power of the Court under Section 561-A, when there was no case pending at the time excepting that the person against whom the investigation has started had appeared before the Court, had surrendered and had been admitted to bail ----- The holding of a teat identification parade, is merely a step in the investigation of a crime and it is entirely up to the investigating agency to decide as to whether it

https://indiankanoon.org/doc/1646837/





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would hold a test identification parade or not and if it decides to do so, the venue for it. LU(MAR 61) 2018 ALL; Code of Criminal Procedure, 1973; Ss. 154, 156, 439 ----- The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and s. 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magi- strate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under s. 439 or under the inherent power of the court; LU(MAR 62) 2018 SC;

Code of Criminal Procedure, 1973; S. 438 ----- Application for Anticipatory Bail ----- The petition was for anticipatory bail and the one which had been filed earlier might have been withdrawn in a given situation, without inviting the Court to consider the same on merits ----- On change of circumstances, when another application under Section 438 Cr.P.C. was filed, the High Court should have considered the same on merits ----- The principle of res judicata could not have operated in an application for bail. LU(MAR 33) 2018; Code of Criminal Procedure, 1973; S. 482 ---- Quashing of Proceedings ----

Guidelines reiterated ----- (i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; (ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. (iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power; (iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;





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(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; (vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; (vii) As distinguished from serious offences, there may be criminal cases which

have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned; (viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; (ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and (x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

LU(MAR 17) 2018; Code of Criminal Procedure, 1973; S. 482 ----- Allegation that the deceased died due to negligence of doctors ----- In Departmental enquiry all the three doctors were held negligent in performing their duties ----- the appellant was a Surgeon on Call ----- She came to the hospital when she was called and examined the patient ----- As per her judgment, she could find no evidence of bleeding or injury and, therefore, she had noted that a Physician be called. Thereafter, she left the hospital at about11.00 p.m. True it is that she did not wait for the Physician to come, but it can be assumed that she would have expected that the Physician would come soon ----- This may be an error in judgment but is definitely not a rash and negligent act contemplated under Section 304-A IPC.


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LU(MAR 53) 2018; Code of Criminal Procedure, 1973; S. 482 ----- Ancestral property having shares of six brothers and one sisters ------ Brothers knowing it very well that the sister has her share in the property mutated the property in the name of sis brothers ----- The contents of the FIR shows that there was a dishonest intention on the part of all the six brothers ----- No case is made out for quashment of the FIR and related proceedings using extra ordinary jurisdiction conferred on this Court under Section 482, Cr.P.C.; LU(MAR 54) 2018 MP; Consumer Protection Act, 1986; After purchase an overseas travel insurance policy the Petitioner was underwent Coronary Bypass Graft Surgery and thereby spent 12,005 pounds -- Respondent repudiated the reimbursement

and taken plea that the complainant have past medical history of hypercholestremia, Ischaemic Heart Disease as well as hypertension, which were excluded as per the insurance contract -- District Forum directed the Company to pay an amount of Rs.7,19,500/- for medical score with interest @ 9% p.a. from the date of complaint till the date of payment and also to pay Rs.2200/as litigation expenses.” -- State Commission allowed the same on appeal on the ground that complainant had obtained insurance policy by concealing the factum of his previous ailment, namely, hypertension, which has a nexus with the heart problem -- Revision allowed by NCDRC in favour of Claimant with observation that plea of concealment of material fact was not taken by the opposite party in the repudiation letter -- no evidence shown that the petitioner despite of having knowledge of his ailment concealed this fact in proposal form -- having history of hypertension does not lead to conclusion that petitioner was also having previous history of heart problem – heart problem cannot be termed as a claim in respect of a pre existing disease. LU(MAR 38) 2018; Consumer Protection Act, 1986; ----- Maintainability of Second Complaint

when the first complaint was dismissed for default or non – prosecution ----- Held: Second Complaint filed by the appellant was maintainability on the facts of this case. LU(MAR 56) 2018 SC; Consumer Protection Act, 1986; ------- Whether presence of Arbitration clause in the agreement oust the jurisdiction of Consumer Forum ----- Observation of the National Consumer Disputes Redressal Commission by holding that Arbitration clause in the agreement cannot circumscribe the jurisdiction of a Consumer For a notwithstanding the amendments made to Section 8 of the Arbitration Act. LU(MAR 12)2018


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Consumer Protection Act, 1986 ----- Whether buyer should wait for indefinite

period for possession of the property booked ------ Held: the allottee cannot be expected to wait for possession of the apartment for indefinite period ----- the opposite party is not in a position to offer possession of the apartment, the opposite party company shall refund the amount with simple interest @ 10% p.a. without any further liability. LU(MAR 7) 2018; Consumer Protection Act, 1986; Mr. Pradeep Narula booked a residential apartment with Granite Gate Properties ------ In furtherance to booking a residential apartment with the Builder, the Builder issued an allotment letter dated June 28, 2010 to the Complainant. Additionally, the parties entered into an Apartment Buyers Agreement on June 29, 2010, according to which, the Builder was to endeavor to complete the construction within 39 months from

the date of allotment, i.e. the possession was to be delivered by September 27, 2013 ----- The possession however was not offered to the Complainant by the said date and he was informed that the possession would not be given before July 2014. The aforesaid deadline was later extended till December 31, 2014. Being aggrieved by the said delay, the Complainant approached the Commission against the Builder ------ Held: he Commission held that the Builder was under a contractual obligation to complete the construction and hand over possession of the apartments to the Complainant within 39 months from the date of allotment, and the Builder had failed to do so and none of the reasons given by the Builder were justified ----- The Commission directed the Builder to complete the construction and hand over possession before 31.01.2017, failing which, they were to pay compensation in the form of simple interest @ 10% per annum from the committed date of possession till the date possession is offered to the apartment owner. Accordingly the Commission ordered the Builder to pay to the Complainant, compensation to the same effect as mentioned in the Apartment Buyers Agreement ------ The Builder was also required to pay Rs. 10,000/- as cost of litigation to the Complainant. LU(MAR 39) 2018; Consumer Protection Act, 1986; Buyer’s Agreement dated 16.04.2010 was executed between them ------ The Builder was required to deliver possession of the flat to the Complainants within 36 months from the date of the Buyer’s Agreement ----- The grievance of the Complainants was that the Builder had failed to offer possession to them within the time period stipulated in the Buyer’s Agreement ------ Commission found that none of the reasons given by the Builder for the delay, such as non-availability of construction material or labour, were tenable ----- The Commission also rejected the argument of the Builder regarding government regulations and economic recession being a justification of the delay ----- The Buyer’s Agreement was entered into by Complainants with almost no bargaining power and under the threat of losing the earnest money ------ Further, under the Buyer’s Agreement, in case of delay


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in payment by the Complainant, an interest at a rate ranging from 18% to 24% per annum compounded annually was charged. LU(MAR 40) 2018; Consumer Protection Act, 1986; --- Time to file Written version ----- Held: the opposite party is required to be given notice directing him to give his version of the case within a period of 30-days or such extended period not exceeding 15 days as may be granted by the District Forum or the Commission ----- For having speedy trial, this legislative mandate of not giving more than 45 days in submitting the written statement or the version of the case is required to be adhered ----- If this is not adhered, the legislative mandate of disposing of the cases within three or five months would be defeated. LU(MAR 59) 2018 SC; Consumer Protection Act, 1986; Insurance Company repudiated the insurance claim of the appellant citing breach of Condition No. 1, i.e. immediate information about the loss/theft of the vehicle ------ Held: If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay ----- it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator ----- The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine ----- It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction ----- It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle ----- Claim petition is allowed. LU(MAR 36) 2018; Consumer Protection Act, 1986; S. 2(1) (d) ----- Whether land owner who entered into agreement with Developer for development of property is a consumer ------

What is required to be scrutinised whether there is any joint venture agreement between the appellant and the respondent ----- The MOU that was entered into between the parties even remotely does not indicate that it is a joint venture ----- As per MOU the land owner has no say or control over the construction, he does not participate in the business, he is only entitled to a certain constructed area ----- The irresistible conclusion is that the appellant is a consumer under the Act. LU(MAR 32) 2018; Consumer Protection Act, 1986; S. 13(2) (a) --- Time to file Written version ----- The rule laid down in Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi [LU (MAR 59) 2018 SC] has been relied upon ----- Held: in no case period beyond 45 days can be granted to the opposite party for filing its version of the case.


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LU(MAR 58) 2018 SC; Consumer Protection Act, Section 24-A --- Respondent had taken out two policies with the appellant for one year --- claims filed due to damage by heavy rain on 7th and 8th August, 1992 for about Rs. 52 lakhs --- Insurance did not pay as per its surveyor report --- Notice sent by Insured to Company 22nd April, 1996 claiming 52 lakhs ---- No action taken ---complaint filed --- claims made by the insured in terms of its letters dated 7th and 8th August, 1992 as well as the notice dated 22nd April, 1996 were repudiated by Insurance Company about five years later after the complaint was filed with the National Commission --- National Commission rejected all the contentions urged by Insurance and by the impugned judgment and order the insured was awarded an amount of Rs. 21,05,803.89 with interest at 9% per annum from 11th May, 1995 that is three months after the addendum issued plus Costs of Rs. 20,000

--- Appeal filed by Company --- Dismissed --- ‘pending action’ must as per clause 6(ii) of the policy must not relate to action instituted in a court of law (Para 13)--- requiring the insured to approach a court of law for adjudication of the claim would amount to the encouraging avoidable litigation --- provision of limitation in the Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer’s claim (Para 18) LU(MAR 57) 2018 SC; Constitution of India -------- Euthanasia ------ Held: (a) The right to die with dignity as fundamental right has already been declared by the Constitution Bench judgment of this Court in Gian Kaur case (supra) which we reiterate. (b) We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life saving devices. (c) A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred to above. LU(MAR 3)2018 Development Control Regulations for Greater Bombay, 1991 ------

i. whether stand alone ‘garage’ or in other words ‘garage’ as an independent unit by itself is a ‘flat’ within the meaning of Section 2(a-1) of MOFA ----- stand alone ‘garage’ or in other words ‘garage’ as an independent unit by itself is not a ‘flat’ within the meaning of Section 2(a-1) and we answer question (i) in the negative.

ii. whether stilt parking space/open parking space of a building regulated by MOFA is a ‘garage’ ----- A stilt area is a space above the ground and


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below the first floor having columns that support the first floor and the building ---- It may be usable as a parking space but we do not think that for the purposes of MOFA, such portion could be treated as garage.

iii. If the answer to aforesaid questions is in the negative, whether stilt parking space/open parking space in such building is part of ‘common areas and facilities’ ------ Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser;

iv. what are the rights of the promoter vis-à-vis society (of flat purchasers) in respect of open parking space/s / stilt parking space/s ------ The

promoter has no right to sell any portion of such building which is not flat ------ Held: It is thus clear that the promoter has no right to sell “stilt parking spaces” as these are neither “flat” not appurtenant or attachment to a “flat”;

LU(MAR 37) 2018 Hindu Marriage Act, 1955; S. 9 ----- Suit for Restitution of conjugal rights ---- There was love affair between them which continued for about 6 to 7 months, inasmuch as they exchanged text messages and met each other very often ----- The appellant got married with respondent on 16.4.2012 by putting a Mangalsutra and applying vermillion on parting of hair, before the idol of Lord Krishna ---- Whether the marriage is a valid one ----- Held: There is no proof to substantiate the case of the respondent in that regard. No one attended the said marriage. The alleged marriage was not celebrated with proper ceremonies. In fact, there was no marriage between the appellant and respondent, as claimed by the respondent; there was no cohabitation between the parties; they were never recognised as husband and wife by the society. Even there was no livein relationship between the parties. They never stayed under the same roof as husband and wife. There is absolutely no iota of evidence in that regard. LU(MAR 55) 2018 BOM; Hindu Marriage Act, 1955; S. 13 ---- Cruelty ----- can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is


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established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that

are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.


To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties


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had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. LU(MAR 22) 2018; Hindu Marriage Act, 1955; S.13 ----- Cruelty ----- What amounts to ----- wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers ----- Merely because no action

is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 ----- if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty; LU(MAR 23) 2018; Hindu Marriage Act, 1955; S. 13 ----- Transfer application ------- Whether transfer of a case could be avoided and alternative mode could be thought of ----- Taking advantage of the leniency shown to the ladies by this Court, number of transfer petitions are filed by women and, therefore, it is required to consider each petition on merit ----- Once a settlement fails and if both the parties give consent that a witness can be examined in video conferencing, that can be allowed ----- When the parties consent that it is necessary in a specific factual matrix having regard to the convenience of the parties, the Family Court may allow the prayer for videoconferencing ----- the discretion has to rest with the Family Court to be exercised after the court arrives at a definite conclusion that the settlement is not possible and both parties file a joint application or each

party filing his/her consent memorandum seeking hearing by videoconferencing ----- Guidelines issued as follows: In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera. (ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer. (iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct. (iv) In a transfer petition, video conferencing cannot be directed. (v) Our directions shall apply prospectively. (vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent ----- Hon’ble Dr. Justice Chandrachud was, of the view of that the


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legislation has enabling provisions which are sufficiently broad to allow video conferencing. In such a scenario, confining it to the stage after the settlement process “will seriously impede access to justice”, he observed. LU(MAR 42) 2018; Hindu Marriage Act, 1955; S. 13 ----- whether a false allegation of adultery levelled by one spouse against the other leads to a conclusion that the said spouse has been treated with mental cruelty or not ----- Held: it has been held by this Court that unfounded allegations of adultery consists of cruelty. The marriage is a trust between the male and female partner and if irresponsible allegations are levelled by the spouse against each other, it will be held that the spouse when makes reckless allegations without any basis, does so, at his/her own risk and responsibility ----- It has been further held that levelling of false allegations by the wife to the extent that her husband was leading an

adulterous life is an act of cruelty and even a single act of cruelty after marriage is a valid ground for divorce. LU(MAR 49) 2018; Hindu Marriage Act, 1955; S. 13 ----- Whether a false allegation of impotency is an act of cruelty to create a ground for divorce ----- Held: the unproved allegations of the wife that the husband was impotent for about six to seven months from the marriage was rightly weighed by the Family Court to hold that the wife had treated the husband with cruelty by making false and baseless allegations against him ----- no husband would like to hear that he was impotent for about 6 to 7 months after the marriage, if that was not true ----- Divorce granted in favour of the husband. LU(MAR 50) 2018; Hindu Marriage Act, 1955; S. 13B- Mutual Divorce: Period of Six months can be waived off ------ Supreme Court observed: where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under

Section 13B(2), it can do so after considering the following : i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony. LU(MAR 1)2018;


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Hindu Marriage Act, 1955; S. 13B ------ Out of marital dispute the wife filed case under section 406/498A IPC and also under the provisions of Protection of Women from Domestic Violence 2005 ----- Later both the parties entered into compromise, husband paid Rs.5 lakhs to the wife towards Alimony, and filed Petition for Mutual Divorce ----- After six months of filing the wife remained absent, then on 11.03.2008 filed application for exemption from appearance on 12.03.2008 and later filed application that she does not want to proceed with the Mutual Divorce Case ----- Trial Court dismissed the petition for Mutual Divorce ----- Appeal thereagainst ----- Held: Court is fully satisfied that the consent given by both the parties for obtaining the decree of divorce by mutual consent was free and fair consent and was not obtained by force, fraud or undue influence ----- Court is further satisfied that the alleged withdrawal of the consent by the respondent wife in the first instance on 29/5/2008 was not genuine and was merely with a view to extort more money from the appellant

husband ----- the application for exemption from her appearance on 12.03.2008 should be treated as her consent for mutual divorce ----- nothing prevented the court below to proceed to pass divorce decree by mutual consent on 12.03.2008 ------ Appeal allowed ----- Divorce Decree by mutual consent has been granted. LU(MAR 30) 2018; Hindu Marriage Act, 1955; S. 13B ------ Mutual Divorce where parties cannot remain present in Court as one of them has been residing abroad for his service ------ Held: Though the physical presence is not possible, the Court can accept and rely on the virtual presence of the parties for verification and confirmation of the mutual consent ----- Even though, the counselling with the Marriage Counsellor can be facilitated by virtual presence ----- the learned Judge of the Family Court is directed to arrange a video conference of the Marriage Consellor with the Respondent/wife in the Court with the help of Computer/ Lab top or by using of webcam . LU(MAR 43) 2018; Hindu Marriage Act, 1955; S. 19 ----- Transfer application ------- Whether transfer of a case could be avoided and alternative mode could be thought of ----- Taking advantage of the leniency shown to the ladies by this Court, number of transfer petitions are filed by women and, therefore, it is required to consider each petition on merit ----- Once a settlement fails and if both the parties give consent that a witness can be examined in video conferencing, that can be allowed ----- When the parties consent that it is necessary in a specific factual matrix having regard to the convenience of the parties, the Family Court may allow the prayer for videoconferencing ----- the discretion has to rest with the Family Court to be exercised after the court arrives at a definite conclusion that the settlement is not possible and both parties file a joint application or each party filing his/her consent memorandum seeking hearing by


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videoconferencing ----- Guidelines issued as follows: In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera. (ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer. (iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct. (iv) In a transfer petition, video conferencing cannot be directed. (v) Our directions shall apply prospectively. (vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent ----- Hon’ble Dr. Justice Chandrachud was, of the view of that the legislation has enabling provisions which are sufficiently broad to allow video conferencing. In such a scenario, confining it to the stage after the settlement

process “will seriously impede access to justice”, he observed. LU(MAR 42) 2018; Hindu Succession Act, 1956:------ A property inherited by a female hindu from her mother or father shall devolve upon the heirs of the father within the ambit of Section 15(2) clause (a) and would not devolve upon categories of heirs specified U/S 15(1) of Hindu Succession Act, 1956 ----- once a heir becomes the absolute owner of a property by virtue of a Will then as a necessary consequence, he/she is entitled to such property by any mode permissible in law to anyone. LU(MAR 46) 2018; Indian Divorce Act, 1869; S.10A- Mutual Divorce: Period of Six months can be waived off ------ Supreme Court observed: where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following : i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over

before the first motion itself; ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony. LU(MAR 1)2018; Indian Penal Code, 1860; S. 304A ----- Allegation that the deceased died due to negligence of doctors ----- In Departmental enquiry all the three doctors were held negligent in performing their duties ----- the appellant was a Surgeon on


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Call ----- She came to the hospital when she was called and examined the patient ----- As per her judgment, she could find no evidence of bleeding or injury and, therefore, she had noted that a Physician be called. Thereafter, she left the hospital at about11.00 p.m. True it is that she did not wait for the Physician to come, but it can be assumed that she would have expected that the Physician would come soon ----- This may be an error in judgment but is definitely not a rash and negligent act contemplated under Section 304-A IPC. LU(MAR 53) 2018; Indian Penal Code, 1860; S. 420/34 ----- Ancestral property having shares of six brothers and one sisters ------ Brothers knowing it very well that the sister has her share in the property mutated the property in the name of sis brothers ----- The contents of the FIR shows that there was a dishonest intention on the part of all the six brothers ----- No case is made out for quashment of the FIR

and related proceedings using extra ordinary jurisdiction conferred on this Court under Section 482, Cr.P.C.; LU(MAR 54) 2018 MP;

Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 -----


ii. whether stilt parking space/open parking space of a building regulated by MOFA is a ‘garage’ ----- A stilt area is a space above the ground and

below the first floor having columns that support the first floor and the building ---- It may be usable as a parking space but we do not think that for the purposes of MOFA, such portion could be treated as garage.



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iv. what are the rights of the promoter vis-à-vis society (of flat purchasers) in respect of open parking space/s / stilt parking space/s ------ The promoter has no right to sell any portion of such building which is not flat ------ Held: It is thus clear that the promoter has no right to sell “stilt parking spaces” as these are neither “flat” not appurtenant or attachment to a “flat”;

LU(MAR 37) 2018 Maharashtra Ownership Flats (Regulations of the Promotion of Construction etc)

Rules. 1964 ------


ii. whether stilt parking space/open parking space of a building regulated by MOFA is a ‘garage’ ----- A stilt area is a space above the ground and below the first floor having columns that support the first floor and the building ---- It may be usable as a parking space but we do not think that for the purposes of MOFA, such portion could be treated as garage.



LU(MAR 37) 2018 Passports Act, 1967; S. 10- Impound of Passport ------ whether police can do the

same------ Held: while the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section


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102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. LU(MAR 2) 2018; Passports Act, 1967; S. 10- Impound of Passport ------ whether Court can do the

same------ Held: Even Court cannot impound a passport;

LU(MAR 2) 2018; Protection of Women from Domestic Violence, 2005; Ss. 18, 19, 20 ------ Relief

when the complainant/wife failed to prove Domestic Violence -------- Held: since the learned Magistrate has come to a conclusion that the domestic violence could not be proved and since that finding of the learned Magistrate has not been challenged by the aggrieved person, it follows that no relief could have been given to respondent Nos. 2 and 3 also. LU(MAR 6) 2018; Special Marriage Act, 1954; S. 27 --- Cruelty ----- can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same


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time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.


To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. LU(MAR 22) 2018; Special Marriage Act, 1954; S.27 ----- Cruelty ----- What amounts to ----- wife made reckless, defamatory and false accusations against her husband, his


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family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers ----- Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 ----- if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty; LU(MAR 23) 2018; Special Marriage Act, 1954; S. 28 - Mutual Divorce: Period of Six months can be waived off ------ Supreme Court observed: where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following : i) the statutory period of six months specified in Section 13B(2), in addition to the statutory

period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony. LU(MAR 1)2018; Special Marriage Act, 1954; S. 28 ------ Out of marital dispute the wife filed case under section 406/498A IPC and also under the provisions of Protection of Women from Domestic Violence 2005 ----- Later both the parties entered into compromise, husband paid Rs.5 lakhs to the wife towards Alimony, and filed Petition for Mutual Divorce ----- After six months of filing the wife remained absent, then on 11.03.2008 filed application for exemption from appearance on 12.03.2008 and later filed application that she does not want to proceed with the Mutual Divorce Case ----- Trial Court dismissed the petition for Mutual

Divorce ----- Appeal thereagainst ----- Held: Court is fully satisfied that the consent given by both the parties for obtaining the decree of divorce by mutual consent was free and fair consent and was not obtained by force, fraud or undue influence ----- Court is further satisfied that the alleged withdrawal of the consent by the respondent wife in the first instance on 29/5/2008 was not genuine and was merely with a view to extort more money from the appellant husband ----- the application for exemption from her appearance on 12.03.2008 should be treated as her consent for mutual divorce ----- nothing prevented the court below to proceed to pass divorce decree by mutual consent on 12.03.2008 ------ Appeal allowed ----- Divorce Decree by mutual consent has been granted. LU(MAR 30) 2018;


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Transfer of Property Act, 1882 : Validity and legality of SA/GPA/WILL transaction ----- A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property ----- The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him ----- An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor ----- SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property ----- the “concept of power of attorney sales have been recognized as a mode of transaction” when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed.

Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law ----- Transactions of the nature of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property ----- Held: We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding ‘SA/GPA/WILL transactions’ are not intended to apply to such bonafide/genuine transactions. LU(MAR 31) 2018; Maharashtra Regional and Town Planning Act, 1966 -----



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LU(MAR 37) 2018 Maharashtra Apartment Ownership Act, 1970 -------



iii. If the answer to aforesaid questions is in the negative, whether stilt parking space/open parking space in such building is part of ‘common


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areas and facilities’ ------ Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser;


LU(MAR 37) 2018; Negotiable Instruments Act, 1881; S. 138/147 ----- Compounding of offence punishable under section 138 N. I. Act ----- Guidelines given by the Apex Court for settlement of the offence ---- THE GUIDELINES (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. LU(MAR 15) 2018

Negotiable Instruments Act, 1881; S. 138 ----- Dishonour of cheque ---- Defence by the accused that the dishonoured cheque was obtained forcibly in police custody ----- Denied of having any transaction with the complainant ---- Denial of legal liability for the amount mentioned in the cheque ----- the only conclusion that could have been arrived at is that the defence case of the


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petitioner herein/accused that the cheque was extracted from the petitioner herein/accused with the help of the police personnel using the respondent's/complainant's acquaintance with them as he himself happened to be a retired police personnel and that the cheque was thus obtained by coercion on 29.03.2006 ante-dating the same to 27.03.2006, is more probable than the complainant's version ------ the only conclusion that can be arrived at is that the petitioner herein/accused has adduced more than sufficient evidence to rebut the presumption contemplated under Section 139 of the Negotiable Instruments Act, 1881------ the burden once again stands shifted on the respondent herein/complainant to prove the charge beyond reasonable doubt and that the respondent herein/complainant has failed to prove the charge beyond reasonable doubt not even on preponderance of probabilities the respondent/complainant has proved his case ----- Acquitted. LU(MAR 21) 2018;

Negotiable Instruments Act, 1881; S. 138/147 ----- Compounding of offence punishable under section 138 N. I. Act ----- The Accused offered cheque amount along with interest in accordance with the judgment of Damodar S. Prabhu vs Sayed Babalal H. (LU Mar 15) 2018 has not been accepted by the complainant on the pretext that the complainant is entitled to more amount beyond the amount of cheque for having been unnecessarily harassed ----- Held: the proceedings under Section 138 of the Negotiable Instruments Act cannot be permitted to be used as a trump card to earn interest in the garb of prosecution -----bonafide of an accused, who offer the amount of cheque in dispute in proceedings under Section 138 of the Negotiable Instruments Act cannot be ignored ----- Direction that the personal appearance of the accused may be exempted if the cheque amount along with interest is paid in accordance with the Damodar S. Prabhu vs Sayed Babalal H. (LU Mar 15) 2018 ------ evidence can be recorded in the presence of counsel for the petitioner by exempting his personal appearance. LU(MAR 16) 2018

Negotiable Instruments Act, 1881; S.138 ---- Complainant and accused both are working in Government College ----- Both are governed by the Government Servants’ Conduct Rules which prescribes the mode of lending and borrowing ----- Nothing on record to show that the prescribed mode has been complied with ----- Disputes concerning the source of fund of the complainant ------ Non Disclosure of the amount to Income Tax authority though the complainant is a regular Assessee ----- Complainant did not produce Bank Statement ----- The trial court took into account the testimony of the wife of the complaint in another criminal case arising under Section 138 of the N.I. Act in which she has stated that the present appellant/accused had not taken any loan from her husband ----- Acquittal of accused confirmed. LU(MAR 26) 2018;


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Negotiable Instruments Act, 1881; S.138 ---- Complaint petition was filed by Shri V. Shankar claimed to be General Power of Attorney holder of the Complainant company ----- Subsequently PW 1 Shri Ravinder Singh gave the evidence on behalf of the Company under the General Power of Attorney given by the Complainant Company ------ The Complaint was not signed either by the Managing Director or Director of the Company ----- It is also not in dispute that PW 1 is only the employee of the Company ----- As per Resolution of the Company Managing Director and Director are authorized to file suits and criminal complaints against the debtors for recovery of money and for prosecution ------ Under third part of the said resolution they were authorized to appoint or nominate any other person to appear on their behalf in the Court and engage lawyer etc ------ But nothing on record suggest that an employee is empowered to file the complaint on behalf of the Company ------ Managing

Director and Director are authorized persons of the Company to file the complaint by signing and by giving evidence ----- At best the said persons can nominate any person to represent themselves or the Company before the Court ------ In the present case one Shri Shankar Prasad employee of the Company signed the complaint and the Deputy General Manager of the Company i.e. PW-1 gave evidence as if he knows everything though he does not know anything ------ There is nothing on the record to suggest that he was authorized by the Managing Director or any Director ------ Acquittal of the Accused confirmed. LU(MAR 27) 2018; Negotiable Instruments Act, 1881; S.138 ---- Whether the petitioner being victim complainant was entitled to prefer the appeal against judgment and order of acquittal in the Court of the learned Chief Judge, City Sessions Court, Calcutta ----- Held: A complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. [Reliance upon the decision of Hon’ble Apex Court in Subhash Chand vs State (Delhi Administration) reported in LU(MAR 28) 2018]; LU(MAR 28) 2018; Negotiable Instruments Act, 1881; S. 138 ------ Compounding the offence under Section 138 of the Negotiable Instruments Act, 1881 (the Act) on payment of the cheque amount and in the alternative for exemption from personal appearance ----- Held that where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 Cr.P.C. LU(MAR 45) 2018;


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Negotiable Instruments Act, 1881; S. 138 ------ Service of summons ----- Mode of ----- The service of summons can be by post/e-mail/courier and ought to be properly monitored (Para 16). LU(MAR 45) 2018; Negotiable Instruments Act, 1881; S. 138 ------ Implementation of technology ----- Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts ----- There appears to be need to consider categories of cases which can be partly or entirely concluded “online” without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated. Traffic challans may perhaps be one such category ----- Atleast some number of Section 138 cases can be decided online ----- If complaint with affidavits and documents can be filed online, process issued online and accused pays the

specified amount online, it may obviate the need for personal appearance of the complainant or the accused ----- Only if the accused contests, need for appearance of parties may arise which may be through counsel and wherever viable, video conferencing can be used ----- Personal appearances can be dispensed with on suitable self operating conditions. (Para 17); LU(MAR 45) 2018; Power of Attorney Act, 1882; S. 1A , 2 ----- Validity and legality of SA/GPA/WILL transaction ----- A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property ----- The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him ----- An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor ----- SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property ----- the “concept of power of attorney sales have been recognized as a mode of transaction” when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law ----- Transactions of the nature of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property ----- Held: We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a


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development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding ‘SA/GPA/WILL transactions’ are not intended to apply to such bonafide/genuine transactions. LU(MAR 31) 2018; Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002; S. 13(2), 13(3A) ----- Whether sub-section (3A) of

Section 13 is mandatory or directory in nature ----- Held: We find the language of sub-section (3A) to be clearly impulsive ----- It states that the secured creditor ‘shall consider such representation or objection and further, if such representation or objection is not acceptable or tenable, he shall communicate the reasons for non-acceptance’ thereof ----- We see no reason to marginalize or dilute the impact of the use of the imperative ‘shall’ by reading it as ‘may’ ----- The word ‘shall’ invariably raises a presumption that the particular provision is imperative; LU(MAR 52) 2018; Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002; S.14 ----- whether the creditor could maintain an application of possession under Section 14 of the Act; even though it had taken over only symbolic possession before the sale of the property to the auction purchaser ----- Held: the entire interest in the property not having been passed on to the creditor in the first place, the creditor in turn could not pass on the entire interest to the auction purchaser and thus remained a secured creditor in the Act;

LU(MAR 52) 2018; Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

(the Atrocities Act), S. 3(1)(ix), 3(2)(vi) and 3(2)(vii) read with 18 ------ Whether there is an absolute bar to the grant of anticipatory bail ----- unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens ----- Limiting the exclusion of anticipatory bail in such cases is essential for protection of fundamental right of life and liberty under Article 21 of the Constitution ----- exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide ----- protection of innocent against abuse of law is part of inherent


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jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest LU(MAR 51) 2018; Transfer of Property Act, 1882 -----




iv. what are the rights of the promoter vis-à-vis society (of flat purchasers) in

respect of open parking space/s / stilt parking space/s ------ The promoter has no right to sell any portion of such building which is not flat ------ Held: It is thus clear that the promoter has no right to sell “stilt parking spaces” as these are neither “flat” not appurtenant or attachment to a “flat”;

LU(MAR 37) 2018 West Bengal Premises Tenancy Act, 1997; S. 7(1) & 7(2) ----- Deposit of rent during pendency of Suit for Eviction ----- Negligence to pay ---- Knowing well that the Plaintiff filed suit for eviction on the ground of of default the Defendant did not take steps as per provisions of section 7(1) and (2) of the West Bengal Premises Tenancy Act, 1997 ----- Trial Court Rightly allowed application under section 7(3) of the Act


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LU(MAR 18) 2018; West Bengal Land Reforms and Tenancy Tribunal Act, 1997 ----- Whether BL & LRO or DL& LRO can decide right title interest of property on the ground of Adverse Possession ------ Held, After scrutinizing all the aspects of the matter and the grounds, this court has come to the conclusion that the findings of the Tribunal de hors the records and law - This Court has not been able to find out even from the enquiry report that the Respondent was in adverse possession of the said land for 30 years - It also appears to the court that the recording of adverse possession involves title to the land and the authority who has decided the matter has no right and such right only can be decided by Civil Court. LU(MAR 47) 2018; West Bengal Land Reforms Act, 1955; ----- Whether Revenue Officer can decide the title of a property? ------ Held: The Decree passed in the Civil Court is not only binding upon the parties but also the legality of such decree cannot be tested by the Tribunal which is neither an appellate court nor a Court Competent to assess the correctness of the judgement of the Civil Court ------ Even a void decree cannot be challenged in collateral proceeding and such void decree is binding upon the parties until it declared invalid by the Court of Competent jurisdiction ----- Learned Tribunal not being a Appellate Authority was not only incompetent to consider the correctness of the judgment and decree of the Civil Court but also in fact, exceeded its jurisdiction in making an effort to consider the legality of the judgement and decree of the Civil Court wile dealing with the Tribunal Application ----- The judgement and decree of the Civil Court which attains finality is bind not only upon the Revenue Authority but also upon the Tribunal ----- If tribunal is allowed to test the legality of the Judgement and decree of the Civil Court then there will be no finality in the adjudication by the Civil Court with regard to the disputed question of title between the two parties claiming contradictory claims for title over the property ------ The jurisdiction of the Civil Court in deciding the

dispute over the title between two claimants making conflicting claims of title over the suit property cannot be disputed even though while considering the question of title in such the court is incidentally required to consider the correctness of the finally published record of rights. LU(MAR 24) 2018 West Bengal Land Reforms Act, 1955 ----- Whether BL & LRO or DL& LRO can decide right title interest of property on the ground of Adverse Possession ------ Held, After scrutinizing all the aspects of the matter and the grounds, this court has come to the conclusion that the findings of the Tribunal de hors the records and law - This Court has not been able to find out even from the enquiry report that the Respondent was in adverse possession of the said land for 30 years - It also appears to the court that the recording of adverse


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possession involves title to the land and the authority who has decided the matter has no right and such right only can be decided by Civil Court. LU(MAR 47) 2018; Citation Index: Amardeep Singh vs Harveen Kaur; LU(MAR 1) 2018; Suresh Nanda vs C.B.I; LU (MAR 2)2018;

Common Cause (A Regd. Society) vs Union of India and Another; LU(MAR 3) 2018 Shri Satyawan Laxman, Jagtap vs Smt. Vimal Saatyawan Jagtap & Another;

LU(MAR 4) 2018; M.S.Ahlawat vs State Of Haryana and Another; LU(MAR 5) 2018; Koushik vs Sau. Sangeeta Koushik Gharami and others; LU(MAR 6) 2018; Shalini Lanbah vs M/s Unitech Limited and Another; LU(MAR 7) 2018; Sakiri Vasu vs State of U.P.; LU(MAR 8) 2018; Hanuman Ram vs The State of Rajasthan and Others; LU(MAR 10) 2018; Doonga Singh vs The State of Rajasthan; LU(MAR 11) 2018; Jaswant Raj Soni vs Prakash Mal; LU(MAR 12) 2018; M/s Emaar MGF Land Limited and Another vs Aftab Singh; LU(MAR 13) 2018; Kerala State Electricity Board and Another vs Kurien E. Kalathil and Another;

LU(MAR 14) 2018; Damodar S. Prabhu vs Sayed Babalal H. LU(MAR 15) 2018; Balwinder Singh and Others vs Baljit Singh; LU(MAR 16) 2018; Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors vs State of Gujarat

and Another; LU(MAR 17) 2018; Suranjan Guria vs Smt. Bibi Rani Jena & Ors; LU(MAR 18) 2018; Mohd. Hussain @ Julfikar Ali vs The State (Govt of NCT) Delhi; LU(MAR 19) 2018; State of Gujrat vs Mohanlal Jitamaljiporwal and Another; LU(MAR 20) 2018; D. Karthikeyan vs M. Selvaraj; LU(MAR 21) 2018; A.Jayachandra vs Aneel Kaur; LU(MAR 22) 2018; Raj Talreja vs Kavita Talreja; LU(MAR 23) 2018; Tapan Kumar Saphui vs The State of West Bengal and Ors; LU(MAR 24) 2018; Horil vs Keshav and Another; LU(MAR 25) 2018; K. Subramani vs K. Damodara Naidu; LU(MAR 26) 2018; C. Narayanan vs State of Maharashtra and Another; LU(MAR 27) 2018; Subhash Chand vs State (Delhi Administration); LU(MAR 28) 2018; M. K. Products vs M/s Blue Ocean Exports (P) Ltd and Ors; LU(MAR 29) 2018; Anil Khatwani vs Nistha Khatwani; LU(MAR 30) 2018; Suraj Lamp and Industries Pvt Ltd vs State of Haryana and Another; LU(MAR 31)

2018; Bunga Daniel Babu vs M/s Sri Vasudeva Constructions & Ors; LU(MAR 32) 2018; Rani Dedeja vs State of Haryana; LU(MAR 33) 2018; Vijay Prakash Jarath vs Tej Prakash Jarath; LU(MAR 34) 2018;


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Sri Ramehswar Yadav and others vs The State of Bihar and Another; LU(MAR 35)

2018; Om Prakash vs Reliance General Insurance and Another; LU(MAR 36) 2018; Nahalchand Laloochand Pvt Ltd vs Panchali Co-operative Housing Society Ltd;

LU(MAR 37) 2018; Satish Chander Madan vs M/s Bajaj Allianz General Insurance Co.; LU(MAR 38)

2018; Shri Pradeep Narula and Anr vs M/s Granite Properties Pvt Ltd Anr; LU(MAR 39)

2018; Jitendra Balani vs M/s Unitech Ltd; LU(MAR 40) 2018; Sushil Kumar Metha vs Gobind Ram Bohra; LU(MAR 41) 2018; Santhini vs Vijaya Venketesh; LU(MAR 42) 2018; Mr. Mukesh Narayan Shinde vs Mrs. Palak Mukesh Shinde nee Palak D. Patel;

LU(MAR 43) 2018; Nihar Ranjan Dash vs Smt. Sunita Sarangi; LU(MAR 44) 2018; M/s Meters and Instruments Private Limited and Another vs Kanchan Mehta;

LU(MAR 45) 2018; Karunanidhi vs Seetharama Naidu and others; LU(MAR 46) 2018; Dipankar Sen and Others vs State of West Bengal and Others; LU(MAR 47) 2018; Lekhraj Maithil vs State of U.P. and Others; LU(MAR 48) 2018; Parveen Kumari vs Ramnish Kumar; LU(MAR 49) 2018; Sau. Savita vs Sachin Matotrao Sathone; LU(MAR 50) 2018; Dr. Subhash Kashinath Mahajan vs The State of Maharashtra and Another;

LU(MAR 51) 2018; ITC Limited vs Blue Coast Hotels Ltd and Others; LU(MAR 52) 2018; Dr. Sou Jayshree Ujwal Ingole vs State of Maharashtra and Another; LU(MAR 53)

2018; Dr. Mukesh Nigam and Others vs State of Madhya Pradesh and Another; LU(MAR

54) 2018 MP; Shri Nitin vs Smt. Rekha; LU(MAR 55) 2018 BOM; Indian Machinery Company vs M/s Ansal Housing & Construction Ltd; LU(MAR

56) 2018 SC; National Insurance Co. Ltd vs Hindustan Safety Glass Works Ltd; LU(MAR 58)

2018 SC; Dr. J. J. Merchant & Ors vs Shrinath Chaturvedi; LU(MAR 59) 2018 SC; Bheru Singh vs State of Rajasthan and Others; LU(MAR 60) 2018 Raj; The State vs Raghuraj Singh; LU(MAR 61) 2018 ALL; State of West Bengal vs S. N. Basak; LU(MAR 62) 2018 SC;

Documents

March - lawupdates.orglawupdates.org/digest/2018/March/Digests of the Month.pdf · Code of Civil Procedure, 1908; S. 9 11 Code of Civil Procedure, 1908; S. 11, 47 & O. 9 R. 13 11