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Delhi HC suspends appellant’s sentence; States unjust to keep them for extended time if the court cannot hear the appeal promptly.

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CASE TITLE – BHIMA ALIAS MANOJ & Ors. v. STATE (GOVT. OF NCT OF DELHI)

CASE NUMBER – CRL.A. 643/2022, CRL.A. 236/2023, CRL.A. 5/2023

DATED ON – 28th March, 2024

QUORUM – Hon’ble Ms. Justice Jyoti Singh

 

FACTS OF THE CASE

The Appellants, Bhima Manoj, Ravi, and Munesh, have filed these applications under Section 389 Cr.P.C. seeking sentence suspension in FIR No.118/2011 registered under Sections 307/34 IPC at Mayur Vihar, Delhi police station. These motions for sentence suspension were heard jointly and are being considered by one joint order because the appeals stem from the same FIR and common judgement. On May 3, 2011, a police team arrived to the scene after receiving DD No. 77B, which stated that an individual had been stabbed during a fight at 29/242, Trilok Puri, Delhi, and was en route to the hospital. They discovered that the injured had been transferred to LBS Hospital. There was no witness present at the spot. As soon as IO arrived to the hospital, he picked up Sunil and Suraj’s MLC.  According to Sunil’s recorded statement, he and his friend Suraj were drinking alcohol at a park in Block-29, Trilok Puri at around 9.30 p.m. When the complainants, Ravi, Bhima, and Munesh, arrived and asked for drinks, the complainants refused, and the three of them began beating them. Ravi struck Bhima and Munesh with a pointed weapon, while Bhima held Sunil and Suraj. Suraj was struck in the back and stomach, and Sunil was struck in the chest. The three later left, and after someone at number 100 complained, the police arrived and a formal report was filed.  The MLC for Sunil believed the damage to be simple, but the MLC for Suraj believed the injury to be severe. Prior to the addition of Section 325 IPC by IO, the FIR was filed under Sections 324 and 34 IPC. Charge sheet under Sections 325/307/34 IPC was submitted, and learned MM, by decision dated January 5, 2015, committed the case to the Court of Sessions after taking cognizance of the crimes. Following the trial and hearing of the arguments, the learned Sessions Court found the appellants guilty of violating Sections 307 and 34 of the IPC.

This was stated in the judgement dated September 28, 2022, and in the sentence order dated November 25, 2022. The appellants were sentenced to seven years of rigorous imprisonment, a fine of Rs. 7,000 per year, and, in the event that they failed to appear, three months of simple imprisonment for violating Section 307 of the IPC.

ISSUES

Whether the sentences of the Appellants should be suspended pending the resolution of their appeals?

 

CONTENTIONS BY THE APPELLANT

Frequently, arguments put forth by the appellants assert that they are innocent and that Sunil and Suraj, the purported victims, have wrongly implicated them. During the trial, all of the defendants were released on bond, and they never abused the freedom that the court had given them. Since the filing of the first formal complaint in 2011, the appellants have endured a protracted legal proceeding. Appellants served one year and four months in jail as of January 20, 2024, not counting any obtained remissions. They don’t have any criminal history and have no prior transgressions. Undisputedly, the complainants are well-known local criminals with multiple pending FIRs against them. According to criminal jurisprudence, the prosecution must prove the case against the accused beyond a reasonable doubt, and in this instance, the prosecution has not even been able to establish a prima facie case against the appellants. There is uncertainty and doubt around the case as a whole. It is documented that the complainants were well-known local criminals who had multiple cases against them both filed and pending. Many problems plague the prosecution’s case: PW-11 failed to look into the phone owner, and the anonymous 100 number caller was never identified. Despite not finding any liquor bottles at the site, PW-11 noted alcohol on the MLCs. The injuries did not correspond with the supposed sharp object, and no weapon was found. Independent witnesses, images, CCTV footage, or soil samples were not gathered. Section 307 IPC requires proof of intent and activity, but the conditions were not fulfilled. The case is further undermined by PW-3’s insufficient testimony, PW-4’s contradicting remarks, and PW-7’s lack of evidence. The attorneys argue for the Appellants’ release based on these inconsistencies and point to a strong likelihood of success on appeal.

CONTENTIONS BY THE RESPONDENT

The learned assistant public prosecutor for the state, on the other hand, contends that the appellants’ offences are grave and serious, and that their convictions were reached through persuasive evidence presented by the prosecution to the Sessions Court. This court is not at this time authorized to discuss the evidence’s merits; that will be addressed when the appeals are ultimately resolved. She goes on to say that there are distinctions between the pre-conviction bail request and the post-conviction sentence suspension request that the court must take into account. The presumption of innocence dissipates once an accused person is found guilty. It is also widely accepted that the fact that the appellants were released on bail during their trial and that there was no claim of their misuse of their freedom will not have much of an impact on the outcome of a request for a sentence suspension. The benefit of sentence suspension in serious offences is only available in extraordinary circumstances, as the courts have consistently held. The Appellants were given a sentence of seven years of rigorous imprisonment, a fine, and, in the event of a default, three months of simple imprisonment. Since they have only served one year and four months, without counting remissions, there is currently no basis established for the term to be suspended.

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court of Delhi, after hearing the learned counsels for the Appellants, acknowledged several significant issues in the prosecution’s case such as contradictions in the testimonies of prosecution witnesses, especially regarding the place of occurrence, non-recovery of evidence and one victim had simple injuries, and the other had grievous injuries. However, the grievous injury was not substantiated by the doctor’s oral testimony. Additionally, the court considered that the appeals are unlikely to be heard soon and that the appellants were young at the time of the incident, had no prior criminal records, and have endured a prolonged trial since 2011 and they have already been incarcerated for nearly 1 year and 6 months. Citing the Supreme Court’s observations in the Kashmira Singh case, the court noted that it would be unjust to keep the Appellants in jail for an extended period if the court cannot hear the appeal promptly.  Moreover, if the Appellants are ultimately found innocent, it would be difficult to compensate for the time spent in jail. Therefore, the Hon’ble High Court has ordered the appellants’ sentences to be suspended while their appeals are pending. This would enable them to be released on bail and provide two sureties each worth Rs. 50,000 in personal bonds. Their release on bond is subject to several requirements, such as not leaving the nation without a judge’s approval, abstaining from illegal activities, keeping in touch with the victim or anyone connected to them, giving the investigating officer (IO) their current and permanent residential addresses, and showing up in court when their appeals are heard.

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The provisions of DVAT Act with regard to grant of interest would be applicable to the case of the petitioner: Delhi High Court.

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CASE TITTLE: RASHTRIYA TRANSPORT CORPORATION V COMMISSIONER OF DELHI GOODS AND SERVICE TAX & ANR.

CASE NO: W.P.(C) 11463/2023

ORDER ON: : 27 May 2024

QUORUM: . JUSTICE SANJEEV SACHDEVA, JUSTICE RAVINDER DUDEJA

FACTS OF THE CASE:

The facts leading to the present appeal in question is that the Petitioner was engaged in the business of transporting goods. A survey was conducted at the godowns of the Petitioner by the Officers of the Department, A notice was issued calling upon the relevant records stated therein. Default Assessments were framed on imposing tax of Rs. 4,91,096/- and penalty under section 86 (19) and under Section 86 (14) amounting to Rs. 4,91,096/- and Rs. 50,000/- respectively. The assessment was challenged before Objections Hearing Authority which was rejected  After the said order, Petitioner deposited disputed amount of tax penalty vide challans. Being aggrieved, Petitioner preferred appeals before the Delhi Value Added Tax [“DVAT”] Appellate Tribunal but the same were partially allowed, whereby, only the penalty imposed under Section 86 (19) was set aside. Petitioner preferred VAT Appeal before this Court the matter was remanded to the Tribunal for deciding afresh. Accordingly, the appeals were reconsidered and decided in favour of the petitioner vide order dated 10.05.2023, whereby, assessments framed by Assessing Authority and the order passed by OHA were set aside. Petitioner preferred Writ Petition (C) No. 8667/2023 before this Court seeking refund of the amount deposited with interest and the same was disposed of, directing the Respondents to decide the claim of petitioner within four weeks the entire deposited amount was refunded along with interest calculated from the date of order of the Appellate Tribunal at the rate of 6% per annum. Challenging the order petitioner again approached this Court and this Court set aside the order dated and directed the Authority to reconsider the issue of interest and pass a speaking order thereto. After hearing the Petitioner, Respondents passed a speaking order rejecting the contentions of the petitioner of higher rate of interest than that mentioned in the Delhi Value Added Tax [“DVAT”] Act as also grant of interest from the date of deposit. The interest on the penalty imposed under Section 86 (19) of Rs. 4,91,096/- was calculated from 26.08.2021 i.e. the date of order by which the said penalty was set aside by the learned Tribunal, while the interest on the tax and penalty under Section 86 (14) was calculated from 10.05.2023.Hence this petition.

LEGAL ISSUES:

whether the provisions of DVAT Act with regard to grant of interest would be applicable to the case of the petitioner, who admittedly is not a dealer but a transporter, and was not engaged in trading of goods and what would be the rate of interest and the date from which such interest is payable?

LEGAL PROVISIONS:

Sections 38 of the DVAT Act, Deals with refunds

Section 42 of the DVAT Act, deals with Intrest.

CONTENTIONS OF APPELLEANT:

The appellant through their counsel has submitted that Delhi Value Added Tax Act Appellate Tribunal has concluded that petitioner is not a “dealer” in terms of provisions of DVAT Act, 2004 and accordingly the provisions of DVAT Act are not applicable in the present case. That being so, the sum of Rs. 10,32,138/- deposited by the petitioners with the respondents was neither a tax nor a penalty for violation of any provision of DVAT Act.the counsel further submitted that Such amount was illegally retained by the respondents for over a period of 17 years without authority of law, and therefore, respondents are bound to compensate petitioner by way of interest at the market rate.It is submitted that impugned order insofar as it restricts rate of interest as prescribed under the DVAT Act is liable to be set aside/quashed. The counsel has also placed reliance on judicial decisions, in support of his contentions

CONTENTIONS OF THE RESPONDENT:

The respondent through their Counsel has argued that the term, employed in Sections 38 and 42 of the DVAT Act is “person” and not “dealer”, which would certainly include within its fold any person including the transporter and, therefore, to give a restricted meaning to the word, “person”, occurring in Sections 38 and 42 of the DVAT Act, The counsel further submitted that it would be contrary to the intention of the legislature, which has explicitly and consciously employed the term, “person” and not “dealer” and if the contention of the petitioner is accepted, it would be tantamount to doing damage to the literal meaning of the said provisions as well as intention of legislature in enacting the said provisions.the counsel further argued that Sections 38 and 42 have a larger scope to include persons other than just the dealers and, therefore, as per the said provisions, the rate of interest liable for the refund is annual rate notified by the Government  at 6% p.a. counsel further submitted that amount of tax and penalty was deposited by the petitioner only after the objections filed by him were rejected by the OHA and, therefore, the same are akin to the pre-deposit before filing the appeal. Learned Standing Counsel has also placed reliance on decision of Allahabad High Court in Ebiz.com Pvt. Ltd. Vs. Commissioner of Central Excise, Customs & Service Tax & Ors. MANU/UP/3167/2016, wherein, it was held that any amount received by revenue as deposit or pre-deposit i.e. unauthorisedly or under mistaken notion, cannot be retained by revenue since it has no authority in law to retain such amount and it must be refunded with interest, however, the interest was ordered to be refundable from the date after three months of passing of order by Commissioner till the amount is actually paid. The Counsel has thus submitted that writ petition is devoid of any merits and is liable to be dismissed.

COURTS ANALYSIS AND JUDGEMENT:

The court on hearing both the counsel, observed that the use of word “person” instead of “dealer” reflects that the intention of the legislature is to include the persons other than the dealers for the benefit of grant of refund and interest under Section 38 & 42 of the DVAT Act. Therefore, the court opined  that the provisions of Section 38 & 42 of the DVAT Act would be applicable to the petitioner/transporter.Also the court With regard to the contention of learned counsel for petitioner regards the payment of interest from the date of deposit, the decisions in the case of Roadmaster (supra) and Tata Chemicals (supra) are not applicable in the present case inasmuch as the decisions in both the cases were rendered in the context of Income Tax Act where there is a specific provision under Section 244(1)(A) for the payment of interest from the date of payment of excess tax by the assessee, while there is no corresponding provision in DVAT Act. Similarly, in the case of Redihot Electricals (supra), the Excise Authority had collected the amount as tax without authority of law and therefore the Court had granted interest at the rate of 12% per annum from the date of collection of the amount till the date of actual payment. In the Central Excise & Salt Act, 1944, there was no provision for the grant of interest on the refunded amount. However, in the DVAT Act, there is a specific provision under Section 42 for the grant of interest on the refund. Hence, the judgment in the case of Redihot Electricals (supra) is also not applicable in the present case.the court further opined that Section 42 of the DVAT Act provides that the interest shall be computed from the date when refund was due to be paid to the person until the date of refund. Admittedly, the refund became payable consequent to the orders passed by the DVAT Appellate Tribunal. The interest therefore shall be computed from the date(s) of the orders passed by the DVAT Appellate Tribunal Admittedly, statutory rate of interest is 6% by virtue of notification  The Tribunal had set aside the notice of penalty amounting to Rs. 4,91,096/- under Section 86(19) and, therefore, interest on such amount shall be computed and payable from 26.08.2021 at the rate of 6% p.a. till the date of refund. Vide subsequent orde, the Tribunal had set aside the payment of tax of Rs. 4,91,096/- and penalty of Rs. 50,000/- imposed under Section 86(14). Therefore, interest on such amount shall be payable from 10.05.2023 at the rate of 6% till the date of refund. Hence from the aforesaid, The court opined  that the GSTO has rightly computed the interest vide its order dated 31.07.2023, and therefore, the writ petition is devoid of any merits.the court further ordered that the Revenue will pay the interest  within four weeks of receipt of copy of this judgment. Therefore the court dismissed the present pettition.

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Delhi High Court rulings: the grant of recovery rights as against the registered owner of the offending vehicle, cannot be sustained in law.

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CASE TITTLE: SANDEEP YADAV. versus NEW INDIA ASSURANCE CO. LTD.

CASE NO: MAC.APP. 39/2022& CM APPL. 7486/2022

ORDER ON: 20 May 2024

QUORUM: . JUSTICE DHARMESH SHARMA

FACTS OF THE CASE:

The present appeal filed by the appellant, who is the registered owner of the vehicle, under Section 173 of the Motor Vehicles Act, 1988 assailing the impugned judgment-cum award dated passed by the learned Presiding Officer, Motor Accident Claims Tribunal, New Delhi whereby the learned Tribunal granted recovery rights to the respondent/Insurance Company to recover the awarded amount from the insured-owner.

The facts leading to the appeal in question is that, on 07.11.2013, about 10:00 PM, the deceased-Brajanand @ Birjoo was going by his bicycle and when he reached near Mayawati Bus Stand, Baghpat, U.P., suddenly a truck driven in a rash and negligent manner by Rajesh Kumar/respondent No.1, came at a high speed and hit the bicycle of the deceased. Consequently, the deceased sustained fatal injuries and was taken to the District hospital, but was declared brought dead. Subsequently, FIR was lodged against the respondent No.1/driver4 with Police Station Baraut under Sections 279/304A/427 of the IPC The respondents No.1 and 2, who are the driver and registered owner of the offending vehicle, were served but failed to contest the case and were proceeded ex-parte, Further, on appreciation of the evidence led on the record, the claim petition was allowed and the claimants/legal heirs of the deceased were granted a total compensation of Rs. 16,14,000/- with interest @ 9% per annum from the date of filing of the petition till realization The impugned judgment-cum-award has been assailed inter alia on the grounds that the onus is upon the insurance company to satisfy the court that there has been a violation of the insurance policy. Further, the respondent No.3/insurance company failed to prove that the licence was fake and also the fact that it was not issued by the concerned authority.

LEGAL PROVISIONS:

Section 173 of the Motor Vehicles Act, 1988 talks about appeals

CONTENTIONS OF APPELLEANT:

Learned counsel for the appellant/registered owner, challenging the grant of recovery rights to the insurance company, alludes to the aspect that once the driver has produced a licence, which appears to be genuine on the face of it, then the owner is not liable and, in this regard, reliance was placed upon the judicial precidents, Per contra, learned counsel for the respondent/Insurance Company, relying upon contested that the appellant/owner was aware of the fake licence possessed by the driver and still permitted him to drive the vehicle. Further, the registered owner never disputed the fact before the learned Tribunal that the driving licence was fake.

CONTENTIONS OF THE RESPONDENT:

The respondent/Insurance Company through their counsel denied all the allegations challenging the territorial jurisdiction of the Court as also the fact that the driver was not possessing a Driving Licence to drive the vehicle. Further the counsel also contested that the offending vehicle did not have a valid permit and other relevant documents and thus, the insurance company is not liable to pay any amount.

COURTS ANALYSIS AND JUDGEMENT:

Having heard the learned counsels for the parties, the court observed that the decision by the learned Tribunal qua the grant of recovery rights as against the present appellant/registered owner of the offending vehicle, cannot be sustained in law. It would be apposite to refer to the observations made by the learned Tribunal while granting the recovery rights to the Insurance Company, The court further observed that the plea taken by the learned counsel for the appellant that he did whatever was in his control and he had produced the driving license but was unable to produce the driver as he had no control over him, cannot be brushed aside. the court further opined that There is no evidence led by the respondent/insurance company that the appellant, being the registered owner, was aware that the driving license of the respondent No.1/driver was forged and fabricated. Further, there is no evidence on the record with respect to the fact that the appellant/owner, despite knowing that such driving license was fake and fabricated, allowed the respondent No.1/driver to drive the offending vehicle. The court further observed that respondent/insurance company was duty bound to lead evidence on the aspect that the appellant was aware that such driving license was fake and yet, he chose to handover the control of the offending vehicle to his driver. In all probabilities, the appellant bonafidely believed the driving license to be genuine.The court further observed that, It is well settled that the registered owner is not supposed to rush to the respective RTO and ascertain the genuineness of the driving license produced by the driver. The driver had probably been driving the offending vehicle for a long time to the satisfaction of the appellant/owner. The court further observed that the insurance company could have also summoned and examined the registered owner to prove its defence, which it did not do. In this regard, reliance was placed on judicial decisions, therefore, the court further In view of the foregoing discussion, the court allowed the present appeal and the impugned judgment-cum-award passed by the learned Tribunal qua the grant of recovery rights to the respondent/insurance company against the appellant/registered owner and hereby set aside the present petition. However, the respondent/insurance company shall be at liberty to proceed for recovery of the amount of compensation paid to the claimants/legal heirs of the deceased from the driver of the offending vehicle in accordance with law.The court further disposed off the  present appeal, along with the pending application.

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Supreme Court on a considered view that,It would be injustice to unsettle the poor,Set aside the order of additional collector and additional commissioner.

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CASE TITTLE:SMT. SHYAMO DEVI AND OTHERS. V. STATE OF U.P. THROUGH SECRETARY AND OTHERS

CASE NO:CIVIL APPEAL NO.5539 OF 2012

ORDER ON: May 16, 2024

QUORUM: J.C.T Ravi Kumar. J.Aravind Kumar

FACTS OF THE CASE:

This present appeal challenges the  judgment dated 19.01.2010 Passed in Writ Petition No.1995 of 2010 by the High Court of judicature at Allahabad.

The facts leading to the present appeal in question is that In the year 1969-70, the khasra plot No.185 inUP was designated as a Panchayat Ghar but later it was declared Unsuitable in 1993. On the request of the village Pradhan a portion of the Said plot was re-assigned for residential use by the Assistant Collector and Subsequently different plots of land in said survey number came to be Allotted to different individuals including the writ petitioners under Section 122-C(i)(d) of Uttar Pradesh Zamindari Abolition and Land Reforms Act.After 13 years, the Secretary, Rampur forwarded a report to the jurisdictional Tehsildar opiningthat the plot had been originally designated as PanchayatGhar, which had been unlawfully allotted for Residential use. Hence, he proposed cancellation of the allotments madeAnd to take possession of the land from all the allottees including writ Petitioners. The Tehsildar in turn forwarded a proposal to the District Magistrate for cancellation of the allotment. This, resulted in show cause notices being Issued to the writ petitioners and same was duly replied by them by filing Objections An application came to be filed by the Petitioners to decide the issue of the limitation as preliminary issue, sinceThe proceedings had been initiated after 13 years from the date of allotment., The Additional Collector arrived At a conclusion that there is no limitation fixed under the Act and Proceeded to reject the application filed. Being aggrieved by the said order the revision petition came to be Filed before the Additional Commissioner which came to be entertained on Merits and dismissed. Being aggrieved by the aforesaid two orders, the writ Petitioners challenged the same in Writ Petition  which Came to be dismissed on two grounds namely,

the revision petition filedWas not maintainable in the teeth of Section 122-C(7); and,

That impugned order dated 07.02.2008 passed by the Additional Collector Over-ruling the objections of the writ petitioners with regard to limitation isCorrect and it was meritless. Hence, this appeal.

LEGAL PROVISIONS:

Section 122-C(i)(d) of Uttar Pradesh Zamindari Abolition and Land Reforms Act, talks about the Allotment of land for housing site for members of Scheduled Castes, agricultural labourers, etc.

Section 132 of the uttarpradesh zamindari abolition and land reforms Act, talks about Land in which [bhumidhari]rights shall not accrue.

CONTENTIONS OF RESPONDENTS:

The Respondents through their counsel Shri Tanmaya Agarwal,has vehemently contended that fraud Vitiates all acts and in the instant case the revenue was empowered under The UPZALR Act to cancel the illegal and fraudulent allotment of land Made in favour of the writ petitioners and as such suit had been instituted For cancellation of allotment for which no limitation has been specified under Section 122-C(6) of UPZALR Act and particularly when the land in Question had been reserved as Panchayat Ghar it would be governed under Section 132 of the UPZALR Act. The counsel also submitted that even Otherwise where a bhumidhar uses the land for a purpose not connected With agriculture, horticulture or animal husbandry same would be in Contravention of Section 143 and admittedly no permission had been Procured for the usage of the land for residential purposes as required Under Section 143. Hence, the counsel further contended that the authorities were Within their jurisdiction to initiate the proceedings for cancelling the Allotment and the revenue authorities as well as the High Court had rightly Refused to interfere with the impugned order and rejected The writ petition where under they had sought for the suit being dismissed As barred by limitation. Hence, the counsel prays for rejection of this appeal.

COURTS ANALYSIS AND JUDGEMENT:

The court on Having heard the learned Counsel representing the State, considered records and referred few judicial precedents and observed that, in the report submitted by the Tehsildar to the District Magistrate, it has been stated therein that subject land had been Preserved for Panchayat Ghar and it is based on the information furnished By the peshkar working in the office Sub-District Magistrate who is said to Have intimated that the file does not bear the signature of the then SubDistrict Magistrate and the Tehsildar is also said to have found certain Irregularities.The court observed that the words, on the basis of such presumedirregularities He has jumped to the conclusion that allotment was irregular, against law And approval of allotment was on the basis of forged signature of SubDistrict Magistrate. However,the court further observed that on  the basis of such conclusion,the court observed that the  report is silent.In this background, the court is of the considered View thatthe Order impugned herein cannot be sustained. The court also made it clear that though the power of the Collector is Available to initiate suo moto action for cancellation of allotment underSub-section (6) of Section 122-C in case of fraud and the court is of the considered view that impugned order as well as the orders Impugned before the writ court would not be sustainable. Yet another factor which has swayed into the courts mind to quash the Impugned order is the fact that pursuant to the allotment made the allottees who are poor rustic villagers have constructed Their houses and the allotment was made based on the approval granted by The then Sub-District Magistrate and they have been residing in the Residential buildings so constructed by them for the last several years and To unsettle the same would result in heaping injustice to those poor hapless Persons and particularly when the subject land has been utilized for Allotment to the poor and houseless persons. The court For the cumulative reasons afore-stated, allowed the appeal and set asside the Impugned order Passed by Additional Collector and the Additional Commissioner, (Administration) Moradabad Division  subject to Observation made herein above.

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Supreme Court: Even if the plea of limitation is Not set up as a defence, the Court has to dismiss the suit if it is Barred by limitation.

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CASE TITTLE:S. SHIVRAJ REDDY(DIED)THR HIS LRS. AND Anr V S. RAGHURAJ REDDY AND OTHERS

CASE NO: CIVIL APPEAL OF 2024(Arising out of SLP(Civil) No(s). 23143-23144 of 2016)

ORDER ON: May 16, 2024

QUORUM: J. B.R. GAVAI and J.SANDEEP MEHTA

FACTS OF THE CASE:

The present appeal is preferred for assailing the judgment Dated 27th March, 2014 passed by the Division Bench of High Court of Judicature of Andhra Pradesh at Hyderabad.

The facts leading to the present appeal in question is that, Respondent/plaintiff, along with defendants And deceased M. Balraj Reddyhad constituted a partnership firm, namely “M/s Shivraj Reddy & Brothers. Further Respondent/plaintiff instituted original suit, Seeking relief of dissolution of the firm and rendition of accounts,wherein, The learned II Additional Chief Judge, City Civil Court, Hyderabad, allowed the original suit filed by respondent/plaintiff and passed a decreedeclaring the firm to be Dissolved and directed defendant Nos. 2 to 4 to tender accounts of The firm from the year 1979 onwards till October, 1998 and Further, granted liberty to respondent/plaintiff to file a Separate application seeking appointment of an Advocate Commissioner for taking accounts of the firm and for other Appropriate reliefs.Being aggrieved, defendant No.1 and 2  preferred Appeal before the High Court of Judicature of Andhra Pradesh at Hyderabad.wherein, the Learned Single Judge of the High Court vide judgment Allowed Appeal on the ground that the earlier case was barred by limitation as one of the partners in Subsisting partnership firm, Shri M. Balraj Reddy expired in 1984, Therefore the firm stood dissolved immediately on the death of the Partner. Since the original suit was filed in 1996, it was barred by Limitation. Aggrieved by the decision of learned Single Judge, respondent/plaintiff preferred LPA before the learned Division Bench of the High Court, which allowed the appeal and set aside the judgment dated passed by the Learned Single Judge, observing That the plea of limitation was never raised during the pleadings in The trial Court and learned Single Judge ought not to have dealt With that issue at all. Being aggrieved, appellants have preferred The present appeal by special leave.

LEGAL PROVISIONS:

Section 42 of the Partnership Act, 1932 talks about Dissolution on the happening of certain contingencies

CONTENTIONS OF APPELLEANT:

The appellant through their counsel urged that the Suit was filed by respondent/plaintiff for dissolution of thefirm and for the rendition of accounts in the year 1996.The counsel further referred to the partnership deed dated 25th April, 1978, Whereby submitted that the firmwas constituted and urged at a partnership at will. The counsel also drew the attention Of the Court to Section 42 of the Partnership Act, 1932, Further the counsel submitted that as per Section 42(c) of the Act, the death of a partner leads to automatic dissolution of the Firm.the counsel submitted that Shri M. Balraj Reddy i.e. Partner No. 3 in The firm admittedly expired in the year 1984 and consequent to his Death, the firm stood dissolved automatically. The counsel further urged that it is settled law that it is the duty of theCourt to dismiss any suit instituted after the prescribed period of Limitation, although limitation has not been set up as a defenceAnd thus, the learned Division Bench erred in allowing LPA  and interfering with the judgment passed by the learned Single Judge on the basis that the plea Of limitation was never raised during the pleadings and thus, the counsel On these grounds, urged Thatthe decree passed by the Learned trial Court to dissolve the firm and Directing the partners to tender the accounts being  upheld is ex facie Illegal, and therefore, deserves to be quashed and set aside.

CONTENTIONS OF THE RESPONDENT:

The Respondent through their counsel submitted that there is documentary Evidence on record to show that the firm continued To exist and its business activities continued even after the death Of Shri M. Balraj Reddy. The counsel therefore, urged that the contentions Put forth by the learned counsel for the appellants that the firm Stood dissolved automatically on the death of Shri M. Balaraj Reddy is misconceived. The counsel  further contended that the issue of limitation was never Raised before the trial Court and thus, the same could not have Been allowed to be taken at the first appellate stage. On these Grounds, the counsel sought dismissal of the appeal.

COURTS ANALYSIS AND JUDGEMENT:

The court on giving thoughtful consideration to the Submissions advancedand having gone through the Impugned judgment and the material placed on record.The court opined that theReasoning given by the learned Division Bench while dismissing LPA, that the learned Single Judge ought not to have considered the question of limitation as the defendants did Not choose to raise the plea of limitation in the trial Court is erroneous.The court further opined that  Law in this regard has been settled by this Court Through a catena of decisions. Therefore, the court also  referedjudicial precedents and Thus, the court observed that it is a settled law that even if the plea of limitation is Not set up as a defence, the Court has to dismiss the suit if it is Barred by limitation.The court also observed thefact that the firm was a partnership at will, is not in dispute. It Is also not disputed that one of the partners of the firm, namely,Shri M. Balraj Reddy expired in the year 1984. This event leaves No room for doubt that the partnership would stand dissolved Automatically on the death of the partner as per Section 42(c) of The Act, The court further observed that  A fervent pleathat the firm continued to exist even after the death Of Shri M. Balraj Reddy, and the business activities were continued By the firm.therefore the court opined that, Even if it is assumed for the sake of argument that the Partners were carrying on the business activities after the death of Shri M. Balraj Reddy, there cannot be any doubt that the firm Stood dissolved automatically in the year 1984 as mandated under Section 42(c) of the Act unless and until there was a contract Between the remaining partners of the firm to the contrary. The court further observed that There Is of course, no such averment by the respondents, further business Activities even if carried on by the remaining partners of the firm after the death of Shri M. Balraj Reddy, would be deemed to be Carried in their individual capacity in the circumstances noted Above.The court opined that the period of limitation for filing a suit for rendition of Account is three years from the date of dissolution.Hence in  the present Case, the firm dissolved in year 1984 by virtue of death of Shri M. Balraj Reddy and thus, the suit could only have been instituted Within a period of three years from that event. Indisputably, the Suit came to be filed in the year 1996 and was clearly time-barred, Therefore,the court opined that  learned Single Judge was justified in accepting theAppeal and rejecting the suit as being Hopelessly barred by limitation. As a consequence, the court opined that the impugned judgment passed by the Division Bench in LPAdoes not Stand to scrutiny and the court hereby reversed and set aside, the court further allowed the appeal accordingly.

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judgement reviewed by: Sowmya.R

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