# Supreme Court Archives - Page 16 of 23

8 Mar

Supreme Court directs to convene Special General Meeting of SCBA on lawyers’ body election process reforms

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Blog # Supreme Court, #electional reforms, #eligibility criteria, #SCBA, #Special General Meeting, #vote

Case title – Supreme Court Bar Association VS B.D. Kaushik

Case no. – Miscellaneous Application……Diary No(s).13992/2023 IN C.A.No.3401/2023

Order passed on – March 04, 2024

Quoram – Justice Surya Kant and Justice K.V. Viswanathan

An application was filed by a member of the bar association seeking a relaxation of the norms for determining voter eligibility.

The Supreme Court directed the members of Supreme Court Bar Association to provide their suggestions regarding the reforms to be made in the lawyers’ body’s election process.

Background of the case

The Court, in 2011 ruling on the eligibility to vote noted that some of the Supreme Court Bar Association members were not regular practitioners at the apex court and mostly made their presence felt during the elections. The court relied on the directions given in the 1998 Vijay Balchandra case to be adopted to identify eligible voters.

According to the existing rules, SCBA members who have 50 appearances per year in the previous two years, those representing or appearing for the state government or the central government and having a total of at least 50 appearances for such government during the period of three calendar years, and those who entered the Supreme Court using their proximity card for 60 days in the concerned year would be eligible to vote.

The Advocate Surender Kumar Tyagi filed an interlocutory application ahead of the 2023 SCBA elections. He sorted for a relaxation in the aforesaid parameters for identifying eligible voters. He submitted that the Court resorting to virtual mode in wake of the Covid-19 norms affected the appearance of members in 2021.

He contended that in consideration of the above circumstances, strict compliance to the above rules would be discriminatory against the regular practitioners and members of the SCBA and sort for a relaxation in the same to enable the regular practitioners to vote in 2023.

Court’s observation and order

The Supreme Court considering the suggestions of the SCBA members and learned Senior Counsel made the following order.

The Court stated that all those members who are eligible to contest and vote in the elections in terms of Rule 18 of the SCBA Rules, shall be eligible to participate in the Special General Meeting which is to be convened under Rule 22 of these Rules.

The Court directed that a committee of comprising of three Senior Advocates, S/Shri Shekhar Naphade, V.Giri and S.B. Upadhyay shall examine the representations/requisitions of all members. Further, added that all valid representations/requisitions received by the Executive Committee of SCBA are eligible to be placed in the Special General Meeting. The Court also allowed the committee to seek the assistance of other SCBA members’.

The Apex Court, thereby, ordered to convene the Special General Meeting of SCBA on or before 16.04.2024 at Supreme Court Bar Library No.1. The Court requested the observers to submit their report before the next hearing date and posted the matter on April 19.

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Judgement Reviewed by – Keerthi K

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8 Mar

Self-incriminating statements not expected to be made under the threat of interim protection cancellation: Supreme Court

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Blog # Supreme Court, #anticipatory bail, #arrest, #bribe, #custodial investigation, #interim protection

Case title – Bijendar VS State of Haryana

Case no. – Criminal Appeal No(S). OF 2024 (Arising from SLP (Crl.)No(s). 1079/2024)

Order passed on – March 06, 2024

Quoram – Justice Aniruddha Bose and Justice Sanjay Kumar

Facts of the case

Bijendar is a Junior Engineer (Electrical) at the Municipal Corporation, Sonepat, Haryana. A complaint was filed against him alleging that he has taken bribe to sign the proposal to enhance the cost estimate for upgrading a building of the Municipal Corporation, Sonepat, to a ‘green building’. The Municipal Corporation alleged that such an exercise by the appellant led to inflating the tender value.

The appellant filed an application before the High Court for the grant of an anticipatory bail in the present matter. But, his plea was rejected by the Court. Subsequently, the order was challenged before the Apex Court.

The Supreme Court in its order dated 05.02.2024 granted interim protection to the appellant on an obligatory condition that the appellant had to cooperate with the investigating agency.

Issue – Detention of the appellant at the investigation stage

Submissions on behalf of the State

The learned counsel for the State opposed the appellant’s plea for pre-arrest bail by filing a counter affidavit. The Counsel submitted that, though the appellant had joined the investigation as per the Court’s order, he neither cooperated with the police for the recovery of bribe amount nor disclosed the other facts of the case. Hence, he contended that a custodial investigation of the appellant was necessary for thorough investigation.

Court’s observation and order

The Court decided only on the issue of detention of the appellant at the investigation stage and did not test on the legality of the case instituted against him. The Court refused to treat the instances of non-cooperation on the part appellant as a justification for dismissal of the interim protection. The Court held that the accused on bail is not expected to make incriminating statements under the threat of withdrawal of interim protection.

The Court, in the absence of any aggravating factor refused to allow custodial interrogation and therefore, directed the appellant to continue his cooperation with the investigating officer during the period of investigation. Accordingly, the Court set aside the impugned order and allowed the appeal.

Judgement Reviewed by – Keerthi K

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8 Mar

SUPREME COURT ISSUES DIRECTIONS PERTAINING TO THE FORMAT OF THE WRITTEN STATEMENTS

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Blog, blog # Supreme Court, #civil appeal, #civil procedure code order viii rule 3, #cpc order viii rule 4, #cpc order viii rule 5, #genuineness of the will, #justice rajesh bindal, #Will, #written statements

CASE TITLE: Thangam And Another v. Navamani Ammal

CASE NO: Civil Appeal No. 8935 Of 2011

DECIDED ON: 4.03.2024

QUORUM: Hon’ble Justice Rajesh Bindal

FACTS OF THE CASE

This civil appeal has been filed to determine the genuineness of a registered will dated 09.10.1984 executed by Palaniandi Udyar in favour of Navamani Amma. In a suit filed by the respondent in the present case, the trial court had ordered in their favour. The appellant had filed an appeal in the first appellate court, which reversed the trial court’s order. Aggrieved by the order, the respondents filed a second appeal, which overruled the judgement of the first appellate court.

Palaniandi Udyar was the husband of appellant no. 1 Thangam and father of appellant no. 2 Laila. He executed the will on 09.10.1984 in favour of his brother’s daughter, Navamani Ammal. Initially, only the testator’s wife was the defendant in the original suit, but his daughter Laila was later impleaded. The appellant is the third wife and widow of the testator. The previous wives are dead, and the testator does not have any children from them. In the present case, the testator possessed eight acres of land and three houses, duly confirmed by his wife, the appellant. The testator gave the respondent 3.5 acres of land since he treated her like his daughter. The estimated value of the suit property is Rs. 16,000.

APPELLANT’S CONTENTIONS

The counsel for appellants contended that the circumstances surrounding the will were questionable. The First Appellate Court rightly overruled the order of the trial court. Re-considering facts only to draw alternate inferences does not lie within the scope of the second appeal. No question of law has been raised in the appeal. They contended that the testimonies of the scribe and witnesses to the will were inconsistent. Moreover, the testator was unwell; hence, he couldn’t comprehend the substance of the will. Even the thumbprints on the will and the one on the register in the sub-registrar’s office differed. The testator left behind the remaining properties he possessed for his wife and daughter, but there is no mention of the same in the will. It is contended that the high court has made a mistake in reversing the order of the first appellate court.

RESPONDENT’S CONTENTIONS

The counsel for the respondents contends that when a person executes his will in favour of any relative or person other than the persons whose behalf the will would naturally fall, it is indicative of the testator’s deliberate action and intentions to do so. Moreover, the respondent was like the testator’s own daughter, and it is undisputed that he had only given her part of his property. The appellants still have ownership of the remaining properties. The respondent also solely took care of the testator when his health deteriorated. The appellants neither took care of the respondent when he was ill nor after his death did they take any steps to take care of the properties he had left behind. The respondent’s husband bore the expenses of the testator’s last rites. The suit was filed two years after the testator’s death because the appellants hindered the respondent’s possession of the property. Hence, the High Court has fairly overruled the order given by the first appellate court.

LEGAL PROVISIONS

Order VIII Rule 3 of the Civil Procedure Code states denial to be specific.

Order VIII Rule 4 of the Civil Procedure Code states evasive denial.

Order VIII Rule 5 of the Civil Procedure Code states specific denial.

COURT ANALYSIS AND JUDGEMENT

The court first examined the witness statements to determine whether the circumstances surrounding the execution of the will were suspicious. PW 1’s witness statements were examined to determine the testator’s health around the time of the execution of the will. She testified that the testator was in good health at the time of the execution of the will, although he had been suffering from asthma and cough for the past 5-6 years. The other witnesses also testified that he only had a cough at the time of the execution of the will. However, the statement of defence witness 1, who also happens to be the widowed wife of the testator, contradicts their testimonies. She said that the testator had a ‘lever wound’ and was suffering from ‘dysentery’. He was also not in proper physical condition and was bedridden for three months while she took care of him. After examining the witness statements, the court inferred that the testator was in good health at the time of the execution of the will. Hence, the will is not questionable because of suspicious circumstances surrounding its execution.

To determine the genuineness of the will, the court referred to PW 4’s witness statements. He is the scribe of the will and a witness to the thumbprints put by the testator. He stated that the testator had told him to give 3.5 acres of land to the respondents and leave the rest for the appellants. This is proof of the testator’s consciousness when executing the will. PW 2, the attesting witness, reaffirmed the same. DW 2, in his examination, stated that he was asked to be the attesting witness by the respondent’s husband, and he did not see the testator make his thumb impression. However, he did see the testator sitting under a tree and writing his will in favour of his legal heir.

The court observed that the reason behind giving away 3.5 acres of land to the respondent can be easily inferred from the material evidence. The respondent took care of him in his dying days while his wife was away attending her brother’s marriage, duly admitted by PW 1. Additionally, the respondent’s husband bore the expenses for performing the last rites, and his wife and kid weren’t present. The appellants did not even care for the properties he had left behind. Hence, the Hon’ble Court upheld the verdict given by the high ground. The court also observed that the appellants had mentioned in their written statements that they were still reaping the benefits of the contested and other properties he left for them.

The court further comments on drafting the written statements filed by the respondents. It was observed that the plaintiff’s written statements had ten paragraphs besides the prayer, whereas no para-by-para-answer was provided in the respondent’s written statement. Instead, the respondents framed their own story. In such cases, it becomes very hectic and complex for the court to ascertain whether the respondents mean to accept or deny the allegations made by the plaintiffs. Order VIII Rules 3 and 5 provide for the same. Even a general denial is insufficient. Rule 5 states that even the admitted facts cannot be considered undisputed and need to be proved. This rule is an exception to the general rule that facts that are admitted need not be proved.

If the defendant wants to raise preliminary objections, the same can be done in different paragraphs so that the plant can follow the same structure and order in case of a rejoinder. The written statement can also be used to raise additional pleadings if required. This will enable the court to comprehend the facts better and understand the stance of both parties instead of surfing through facts in the written statements. In the case of Badat and Co. Bombay Vs. East India Trading Co,[1] the court observed that rules 3 to 5 describe the manner in which the proceedings are to be conducted. The case of Lohia Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs. Atmaram Kumar[2], the court reiterated the same. He added that if every allegation of fact in the plaintiff’s written statement is not admitted or denied by the plaintiff, then it stands to be admitted. The court dismissed the plea since it did not have any merit.

CONCLUSION

This judgement is crucial for all the experienced and aspiring advocates as the Hon’ble Court observes the formatting mistakes commonly made by the parties in submissions. The counsels need to be vigilant and adhere to the specific instructions laid down by the relevant provisions of the Civil Procedure Code pertaining to the same. The counsels must make a diligent effort to ensure the ease of reading and navigation of their submissions as the court opined that this is a frequently occurring problem. Such a conscious effort shall simplify the court operations and ‘streamline the working’.

Judgement Analysis Written by-Rashi Hora

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[1] AIR 1964 SC 538

[2] (1993) 4 SCC 6.

8 Mar

“NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION OVERSTEPPED ITS POWERS AND JURISDICTION”: SUPREME COURT

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Uncategorized # Supreme Court, #agreement to sell, #contract, #justice sanjay kumar, #national consumer dispute redressal commission, #ncdrc

CASE TITLE: Venkataraman Krishnamurthy and Anr. v. Lodha Crown Buildmart Pvt. Ltd.

CASE NO: Civil Appeal No. 971 of 2023

DECIDED ON: 1.03.2024

QUORUM: Hon’ble Justice Sanjay Kumar

FACTS OF THE CASE

This Civil Appeal has been filed by the complainants aggrieved by the order passed by the National Consumer Disputes Redressal Commission (NCDRC). The respondent company was constructing a building wherein the appellant wished to buy an apartment. Hence, the appellant and the company entered an Agreement to Sell on 29.11.2023. After that, a four bhk flat in ‘Lodha Evoq’ was allotted to the appellants. As mentioned in the contract’s payment schedule, the appellants were supposed to make payments in four instalments, and the balance amount was to be paid at the time of fit-outs. When the complaint was filed, it was undisputed that the appellants were up to date with their payments in accordance with the contract. The contract further mentioned that the respondent party was supposed to hand out the apartment on two occasions: one for fit-outs by 30.06.2016 and the second for the offer of possession of the apartment along with the issuance of the occupancy certificate. A grace period of one year was given to the company in case of failure to provide the apartment on the aforementioned date. The company failed to comply with the terms and conditions by not giving the apartment on an earlier date. Hence, the appellants approached the NCDRC, praying for a refund of the amount they paid with a compound interest of @18% p.a., as well as compensation for the litigation costs and mental distress caused.

The respondent party is hereinafter referred to as the ‘OP’.

The NCDRC passed the following judgement:

The NCDRC directed the OP to give the entire physical possession of the property to the complainants within three months from the date this order was passed.

Both parties must inspect the property in question together, and in case of any deficiencies, the same must be reversed within 30 days of the inspection. The OP shall inform the complainants in writing after making the necessary changes and give them 15 days to complete the required formalities to be fulfilled to possess the property. The OP can also demand maintenance costs, such as car parking, club membership, etc., from the complainants. If the OP deems it necessary, it can take an indemnity bond from the complainants to pay taxes the authorities may likely demand in the future.

The OP shall bear compensation for delay in property transfer at simple interest 6% p.a. Parties are to bear their litigation costs. If the complainants wish to seek a refund, the OP shall be informed in writing within 15 days of the order. The OP shall refund the money after deducting the deposit amount within two months of the request made by the complainants.

APPELLANTS CONTENTIONS

The appellants contended that the respondent company did not comply with the contractual terms since they failed to offer the property for fit-outs on the time and date mentioned in the agreement. The possession of the apartment was to be delivered to the appellants on 30.06.2016 or extended by the grace period of one year.

RESPONDENT’S CONTENTIONS

The respondents contended that they had already obtained the occupancy certificate required before the expiry of the grace period. They informed the same to the appellants via email and asked them to make balance payments for the final property transfer. However, the appellants did not respond to the mail; hence, the respondent did not breach the contract. Additionally, they contended that the appellants wanted to terminate the contract due to the introduction of the Goods and Services Tax. They only want to avoid tax.

LEGAL PROVISIONS

Regulation 6(7) of the Development Control Regulations, 1991.

COURT ANALYSIS AND JUDGEMENT

The respondent company had obtained a ‘Part Occupancy Certificate’ from the Town & Country Planning Division of Mumbai instead of an Occupancy Certificate. The certificate was issued on the condition that the respondent company must finish the internal work before applying for a total occupancy certificate. The format was not in accordance with Regulation 6(7) of the Development Control Regulations, 1991. Moreover, the respondent company bypassed the date of offering the apartment for fit-outs. It directly offered possession of the apartment and could not even procure the full occupancy certificate, which cannot be overlooked as it is a severe breach of the terms of the contract. The appellants rightfully exercised their rights to terminate the contract and contended that they had not received any letter for the offer of property for fit-outs.

The NCDRC opined that the respondent company’s delay in issuing the flat was not unreasonable. But if the complainants still want to terminate the agreement and seek a refund, the respondent’s company shall return the amount they paid in full after reducing the deposit amount. Hence, it passed the aforementioned judgement. However, it cannot be contended that there was no delay in providing possession of the property since it can be deduced that the contract provided a full occupancy certificate. To this effect, the respondent party still has to issue an occupancy certificate.

The Supreme Court stated that when the parties enter into a contract outlining all the terms and conditions, they must abide by the same. If the contract provides for the actions to be taken in case of a breach, then such a method must be followed. If not, the complainants can legally enforce the same on the party at fault.

In the case of General Assurance Society Ltd. v. Chandumull Jain and another[1] relating to insurance documents, it was held that the court’s duty is limited to interpreting the documents rather than amending them. This changes the structure and substance of the contract; hereby, the court goes beyond its powers. Hence, however unreasonable the contract may be, it is not the court’s responsibility to make changes. The court must interpret the contract and apply the established terms and conditions. The same was reiterated in the case of Rajasthan State Industrial Development & Investment Corporation vs Diamond & Gem Development Corporation[2], Ltd. Shree Ambica Medical Stores vs Surat People’s Coop. Bank Ltd.[3] and GMR Warora Energy Ltd. vs Central Electricity Regulatory Commission[4].

The court said that the respondent company could not argue because the appellants accepted their proposal of delayed apartment delivery. The appellants were informed about the delay on two separate occasions. However, their response still demanded that the occupancy certificate be uploaded to the website to obtain a loan. The appellants were scheduled to see the property/apartment in question on 14.06.2017, which was delayed to August 2017 or later. It is unknown when the appellants were given the ‘part occupancy certificate’, but it is undisputed that after the expiry of the grace period, the appellants immediately sought to terminate the agreement by providing notice to the respondent company in writing. The appellants rightfully followed the terms and conditions of the contract. The respondents cannot infer the communication between the parties before the expiry of the grace period as a green signal by the appellants. It is not suggestive of their acceptance when they were not even aware of the full facts of the situation then. The fact that the appellants wanted to complete all the formalities to avoid the Goods and Services Tax is not grounds for them to be held against. The court observed that the urgency shown by the appellants due to the introduction of GST was justified and natural. Avoidance of tax does not amount to evasion of tax.

The respondent company relied on the case of Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna[5] to pray for the reduction of interest rates. The court observed that the facts of this case do not apply to the current scenario. In this case, the contract provided that any delay after the expiry of the grace period shall allow the other party to terminate the contract and obtain a refund without any interest. Hence, in all fairness, the court ordered a refund with a 9% p.a. simple interest. In the instant matter, it has been explicitly laid down in the contract that an interest of 12% p.a. has to be paid along with the refund. Thus, the court does not hold the authority to amend the same.

The court further held that the National Consumer Dispute Redressal Commission (NCDRC) exceeded its power and authority. The court not only amended the terms and conditions of the contract but also set out the discourse to be taken by both parties, especially the appellants. The appellant company wished to terminate the agreement despite the offer of possession made by the respondents on 29.07.2017. Accordingly, the court has directed the respondent company to refund the amount the appellants paid in twelve equal monthly instalments. Post-dated cheques and a simple interest of 12% p.a will be paid. The first instalment must be paid on the 5th of April and the remaining on the fifth of each month till it is fully repaid.

CONCLUSION

In this judgement, the court reversed the NCDRC’s order. This judgement is crucial for determining the duties and powers of the judges when dealing with contractual cases. The court referred to various judgements and reiterated that the court’s power is limited to understanding the contract and applying the terms and provisions to the facts presented. Even in cases wherein the contract is arbitrary, the court must not amend a valid contract. This judgment also serves as a reminder to the parties entering into contracts to carefully devise and review the terms and conditions of the contract since they cannot change the same unless expressly provided for in the contract. The parties must be aware that even the omission of a task mentioned in the contract shall lead to a breach enforceable by the aggrieved party.

Judgement analysis written by- Rashi Hora

Click here to view judgement.

[1] AIR 1966 SC 1644

[2] (2013) 5 SCC 470

[3] (2020) 13 SCC 564

[4] (2023) 10 SCC 401

[5] 5 (2021) 3 SCC 241

8 Mar

No false promise of marriage; Prosecutrix mature enough to foresee her actions: Supreme Court quashes the FIR alleging Rape

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Blog # Supreme Court, #False promise, #FIR, #Marriage, #rape, #Subsistence of marriage

Case title – XXXX vs State of Madhya Pradesh & Anr

Case no. – Criminal Appeal No. 3431 OF 2023

Decided on – March 06, 2024

Quoram – Justice C.T. Ravikumar and Justice Rajesh Bindal

Facts of the case

The respondent 2/complainant, a married women had filed an FIR under Sections 376(2)(n) and 506 IPC alleging that her tenant (appellant) maintained physical relationship with her on a promise to marry her.

The appellant in the present case filed an appeal under Section 482 Cr.P.C. for quashing the FIR against him. The High Court dismissed the petition filed by him. Subsequently, he filed an appeal before the Apex Court.

Court’s observation and analysis

Firstly, the Court noted the discrepancy in the FIR filed by the complainant and the statement recorded by her under Section 164 Cr.P.C.

In the FIR, the respondent/complainant stated that she managed her own cloth shop. As there was a dispute with her husband, she was living separately. She has a daughter aged 15 years. On 10.12.2018, she got divorce from her husband. In 2017, Sadbhav Company had taken first floor of their house on rent in which the appellant, who was working with the company, stayed. During spare time, the appellant used to meet her in the shop.

Gradually, the relations developed. The appellant proposed that in case she takes divorce, he will marry her. The complainant stated that after the divorce, on 10.01.2019, at about 11.00 PM, the appellant came to her room and had physical relations on false promise of marriage. When she insisted for marriage, he refused by saying that his family didn’t agree. Thereafter, the FIR was got recorded on 11.12.2020.

There was complete change in the stand of the complainant in her statement recorded under Section 164 Cr.P.C. The fact remains that the parties admittedly were in relations from 2017 onwards. Some alleged promise to marry came in January 2019, from where they started having physical relations. It has also come on record that it is not only the consent of the complainant which is clearly evident but also of the parents and daughter of the complainant as they were living in the same house, where allegedly the appellant and the complainant were having physical relations.

Secondly, the court observed that, in the FIR the complainant stated that she got divorce from her earlier husband on 10.12.2018. But, in the statement under Section 164 Cr.P.C., she stated that marriage between the appellant and the complainant was solemnized in a temple in January 2019. However, in actuality, the complainant obtained divorce from her husband in 2021, which reveals that the complainant re-married the appellant during subsistence of her earlier marriage.

Thirdly, on the basis of the FIR and the statement recorded, the Court inferred there was no promise to marry initially when the relationship started in the year 2017. Even on the dates when the complainant alleges that the parties had physical relations, she was already married to the appellant. The Court relied on the precedence in Naim Ahamed v. State (NCT of Delhi) and ruled that the appellant was not guilty in the instant case.

Judgement

The complainant had a child who was 15 years old and was 10 years older than the tenant. The Court pointed out that the complainant was a mature individual who could foresee her actions and take right decision.

The Court stated that she was matured and intelligent enough to understand the consequences of the moral and immoral acts for which she consented during subsistence of her earlier marriage. Therefore, the Court held that the initiation of rape proceedings against the appellant was an abuse of process of law and quashed the FIR against the appellant.

Judgement Reviewed by – Keerthi K

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