Useful Judgments - Part 2

Print

  1. How can the right of the PROTECTED TENANT be preserved in cases where the debtor-landlord secures a loan by offering the very same property as a security interest either to Banks or Financial Institutions
  2. Specific performance will not be ordered if the contract itself suffers from somedefect which makes the contract invalid or unenforceable
  3. Whether a second complaint to the District Forum under the Consumer Protection Act, 1986 is maintainable when the first complain was dismissed for default or non-prosecution
  4. Under the Urban Land (Ceiling and Regulation) Act, 1976, The provisions contained in Sections 8,9 and 10 have to be mandatorily complied with before the land is declared in excess of the ceiling limit
  5. Gift   of property which is capable of division is irregular but can be perfected and rendered valid by subsequent partition or delivery
  6. The E.C. Act is a social welfare legislation meant to benefit the workers and their dependents in case of death of workman due to accident caused during and in the course of employment should be construed as such
  7. Whether for the drivers having license to drive light motor vehicles there is a necessity of obtaining endorsement to drive the transport vehicle when the transport vehicle is of class of light motor vehicle
  8. Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Sec. 300 of the Cr.P.C
  9. Right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc.
  10. Whether an arbitrator has the power to award pendente lite interest in case contract bars the same in a case covered by Arbitration Act, 1940
  11. When bare reading of the provision makes it very clear and unequivocally gives a meaning it was to be interpreted in the same sense as the Latin maxim says “dulo lex sed lex”,  which means the law is hard but it is law and there cannot be any departure from the words of the law
  12. From the above discussion, it is clear that in the absence of renewal of lease, the status of the original lessee, in relation to the property in question, is that of an unauthorised occupant as he had continued in occupation of the property in question as an ‘unauthorized person’ in  terms of Section 2(g) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971
  13. The Appeal under Section 18 of the SARFAESI Act is permissible only against the order passed by the DRT under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset
  14. In the absence of any act in pursuance of the website by which he has deceived any person fraudulently or dishonestly, induced any one to deliver any property to any person, we find that it is not possible to attribute any intention of cheating which is a necessary ingredient for the offence under Section 468
  15. As income from tips would be chargeable in the hands of the employees as income from other sources, such tips being received from customers and not from the employer, Section 192 of Income Tax Act, would not get attracted at all on the facts of the present case
  16. Distinguishing features between MORTAGE BY CONDITIONAL SALE and SALE WITH AN OPTION TO REPURCHASE
  17. Under Section 24(2) of the 2013 Act, where an Award under Section 11 of the 1894 Act has been passed and in case compensation has not been paid to the land owner or deposited before the Court in terms of the requirements under the 1894 Act, the acquisition proceedings get lapsed.In case compensation has not been paid, the land acquisition proceedings in respect of that acquisition will stand lapsed, as if there is no acquisition.
  18. Section 24 of the 2013 Act envisages mainly two situations; i) where the land acquisition proceedings had already been initiated under the 1894 Act but no award was passed till the date the new Act came into force. (ii) where the Award has been passed but neither the owner has been dispossessed nor has he been paid the compensation. Under the first, where the award had not been passed, the acquisition proceedings could continue; but the compensation will have to be determined under the scheme of 2013 Act. Under the second category, there is a statutory lapse of the proceedings. There is also an incidental third situation, where award under the 1894 Act had already been passed prior to coming into force of  the 2013 Act, but payment is yet to be made and possession is yet to be taken. In that case, the further proceedings after the award could continue under the old Act of 1894; but if either payment or possession has not taken effect in five years prior to the 2013 Act, then proceedings will lapse
  19. An act of God is that which is a direct, violent, sudden and irresistible act of nature as could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted. Generally, those acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause will come under the category of acts of God. Examples are: storm, tempest, lightning, extraordinary fall of rain, extraordinary high tide, extraordinary severe frost, or a tidal bore which sweeps a ship in mid-water
  20. State’s power of compulsory acquisition cannot be used to enable a private entity to acquire title even if private person offers more compensation than the State. It is also well settled that no legitimacy can be conferred to an abuse of power to advance a private purpose by invoking doctrine of prospective overruling
  21. It is too well settled by now that where the parties choose a juridical seat of Arbitration outside India and provide that the law which governs Arbitration will be a law other than Indian law, part I of the Act would not have any application and, therefore, the award debtor would not be entitled to challenge the award by raising objections under Section 34 before a Court in India. A Court in India could not have jurisdiction to entertain such objections under Section 34 in such a case
  22. Section 141 again does not lay down any requirement that in such eventuality the directors must individually be issued separate notices under Section 138. The persons who are in charge of the affairs of the Company and running its affairs must naturally be aware of the notice of demand under Section 138 of the Act issued to such Company
  23. It is thus well settled that in terms of Section 20 of the JJ Act, 2000 in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the Court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the Court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the 2000 Act
  24. It is a settled principle of law laid down by this Court in a number of decisions that once the demand and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by evidence then conviction must follow under Section 7 of the PC Act against the accused. Indeed, these twin requirements are sine qua non for proving the offence under Section 7 of the PC Act
  25. In National Thermal Power Corporation Ltd.  (supra), this Court has observed that price fixation is legislative in character.  In  PTC India Ltd. (supra) also, this Court has held that fixation of tariff like price fixation is legislative in character. The functions of the Commission have been held to be adjudicatory, advisory and legislative. The powers and functions enumerated under section 178 of the Act of 2003 confer wide powers upon the Commission to frame regulations which cannot be said to be ultra vires
  26. The Securities Contracts (Regulation) Act, 1956, is a special law to regulate the sale and purchase of shares and securities and hence it prevails over the provisions of the Indian Contract Act, 1872 and Sale of Goods Act, 1930, insofar as the matters which are specifically dealt with by the SCRA. The contracts for sale and purchase of securities, as envisaged under the SCRA, can be entered into only in a prescribed manner in a notified area and that can only be effected through registered members of a recognised stock exchange (i.e. stock brokers) and the only exception to this is a Spot Delivery Contract.
  27. Directions & Guidelines issued by Honble Apex Court for proper implementation of the High Secutity Registration Plates scheme
  28. In other words, even though the urgency clause under Section 17(1) and Section 17(2) may be invoked in a given case, the opportunity of filing objections under Section 5A of the L.A. Act need not be dispensed with and can still be afforded. However, if the provisions of Section 17(4) are invoked, the State would be empowered to dispense with the requirement of affording opportunity under Section 5A and take possession prior to making of the award. The dispensation of the opportunity contemplated by Section 5A by invoking Section 17(4) is not an invariable consequence of the invocation of Sections 17(1) or (2).
  29. We are, therefore, of the view that if the Will is held not to constitute an arbitration agreement despite containing an arbitration clause therein - a fortiori , the Trust Deed can also not be held to constitute an agreement much less an arbitration agreement despite containing an arbitration clause therein
  30. In Marine Container Services South Pvt. Ltd. v. Go Go Garments, this Court has already made clear that defence under Section 230 of Indian Contract Act, 1872 is available in the cases under Consumer Protection Act, 1986 by the agents of the principal with whom the complainant had the agreement
  31. This court in General Assurance Society Ltd. v. Chandmull Jain and Anr., reported in [1966] 3 SCR 500 held that there is no difference between a contract of insurance and any other contract except that in a contract of insurance there is a requirement of  uberima fides , i.e., good faith on the part of the insured and the contract is likely to be construed  contra proferentes , i.e., against the company in case of ambiguity or doubt. It was further held in the said judgment that the duty of the Court is to interpret the words in which the contract is expressed by the parties and it is not for the Court to make a new contract, however reasonable
  32. This Court reconciled the view taken in Abdul Rashid Ibrahim Mansuri (supra) and Sajan Abraham v. State of Kerala in larger bench judgment in Sukdev Singh (supra). It was held that in view of technological advancements, it may not be possible to record information as per the requirement of Section 42 of NDPS Act. Strict compliance by the investigating agency should not be required in an emergency situation so as to avoid misuse by wrongdoers/ offenders/ drug peddlers. Whether there is adequate substantial compliance is a question of fact in each case.
  33. However, we would like to clarify, that with effect from 21.06.2012, in view of sub-section (10) of Section 19, the assignment of the copyright in the work to make sound recording which does not form part of any cinematograph film, shall not affect the right of the author of the work to claim an equal share of royalties or/and consideration payable for utilization of such work in any form by the plaintiff/respondent

 

 

 

 

 

 

 



Source: Official Website of WBJA, Last Updated on 10-12-2018

© Official website of WBJA, India