Joint Liability Under Section 138 of Negotiable Instruments Act

A person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. Section 138 of the Negotiable Instruments Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt jointly, but if such a person who might have been liable to pay the debt jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque. Alka Khandu Avhad v. Amar Syamprasad Mishra, (2021) 4 SCC 675.

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Divorce On the Ground of – Irretrievable Breakdown of Marriage

In R. Srinivas Kumar v. R. Shametha, 2020 (138) ALR 265, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty two years and reunion was found to be impossible. Not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. Munish Kakkar v. Nidhi Kakkar, 2021 (145) ALR 202.

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Establishment of a Competing Business – Cannot Give Rise To A Legal Wrong

        The establishment of a competing business which may have an adverse impact on his profitability cannot give rise to a legal wrong. Such actions are clearly barred on the principle of damnum  sine injuria which essentially holds that the law does not recognize any remedy unless it is established that the person had suffered a legal wrong or to put it differently a wrong which is recognized or is recognizable in law. In the case of Jasbhai Motibhai Desai v. Roshan Kumar, (1976) 1 SCC 671 it was held as under:         “Thus, in substance, the appellant’s stand is that the setting up of a cinema house in the town will adversely affect his, monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected, interest, the business competition causing it being a lawful activity. The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to the society at large. Amir Kumar Mishra v. Union of India, 2021 (145) ALR 1.  

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Appointment of Arbitrator – Under Section 11(6) of the Arbitration and Conciliation Act

Sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996 provides that where, under an appointment procedure agreed upon by the parties, (i) a party fails to act as required under that procedure; or (ii) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (iii) a person including an institution, fails to perform any function entrusted to him or it under that procedure, the appointment of arbitrator(s) is to be made upon an application made by the party concerned. M/s S.K. Industries v. State of U.P., 2021 (145) ALR 190.  

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Rectification of Contract — Can be Subject Matter of a Suit for Specific Performance

A perusal of Section 26(1) of the Specific Relief Act, 1963 would show that when through fraud or mutual mistake of parties, a contract or other instrument in writing does not express the real intent of the parties, then either party or his representative in interest may either institute a suit to have the instrument rectified or as defendant, may, in addition to any defence open to him, ask for rectification of the instrument. Importantly, under Section 26(3) of the Specific Relief Act, a party may pray in a rectification suit for specific performance and if the court thinks fit, may after rectifying the contract, grant specific performance of the contract. Thus, what is made clear by this Section is that the rectification of a contract can be the subject matter of a suit for specific performance, which, can be the subject matter of an arbitral proceeding. Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties, 2021 (144) ALR 250.

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Family Settlement – Clause Contemplating Preferential Offer

When in an agreement it is stated that the property cannot be sold without concurrence of the three brothers in writing, there cannot be any doubt about its meaning. It means what it says which is that should a brother want to sell the property, the other two brothers must agree in writing. This clause cannot be described as vague. This is different from the aspect as to whether it is a clog on ownership or whether it is otherwise unenforceable but it cannot be described as being vague. The second contention is that when a decision is taken by the brothers permitting sale by a third brother, then, first preference is to be given to both the other brothers. What is intended is that after the written concurrence is obtained for selling in order that property is not sold to a third party/stranger, the other two brothers are given an opportunity to buy that property. This portion of the clause cannot also be described as vague as such. No doubt, it could be argued that the price at which the offer is to be made is not expressly mentioned. It only contemplates a preferential offer being treated as a condition precedent to a brother affecting a sale outside of a family to a stranger. The price can only be understood as market price which would be the fair price. Tilak Raj Bakshi v. Avinash Chand Sharma, (2020) 15 SCC 605.

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Family Settlement – Governed By A Special Equity Principle

In Hari Shankar Singhania v. Gaur Hari Singhania, (2006) 4 SCC 658 it was held as under:

            “A family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. Such family settlements generally meet with approval of the courts. Such settlements are governed by a special equity principle where the terms are fair and bona fide, taking into account the well – being of a family.             Technicalities of limitation, etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family.” Tilak Raj Bakshi v. Avinash Chand Sharma, (2020) 15 SCC 605.

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Jurisdiction – Meaning of

Jurisdiction is the power to decide and not merely the power to decide correctly. Jurisdiction is the authority of law to act officially. It is an authority of law to act officially in a particular matter in hand. It is the power to take cognizance and decide the cases. It is the power to decide rightly or wrongly. It is the power to hear and determine. Same is the foundation of judicial proceedings. It does not depend upon the correctness of the decision made. It is the power to decide justiciable controversy and includes questions of law as well as facts on merits. Jurisdiction is the right to hear and determine. It does not depend upon whether a decision is right or wrong. Jurisdiction means power to entertain a suit, consider merits and render binding decisions and “merits” mean the various elements which enter into or qualify plaintiff’s right to the relief sought. If the law confers a power to render a judgment or decree, then the court has jurisdiction. The court must have control over the subject-matter, which comes within classification limits of law under which the court is established and functions.         The word “jurisdiction” is derived from Latin words “juris” and “dico”, meaning “I speak by the law” and does not relate to rights of parties as between each other but to the power of the court. Jurisdiction relates to a class of cases to which a particular case belongs. Jurisdiction is the authority by which a judicial officer takes cognizance and decides the cases. It only presupposes the existence of a duly constituted court having control over subject-matter which comes within classification limits of the law under which court has been established. It should have control over the parties’ litigant, control over the parties’ territory, it may also relate to pecuniary as well as the nature of the class of cases. Jurisdiction is generally understood as the authority to decide, render a judgment, inquire into the facts, to apply the law, and to pronounce a judgment. When there is want of general power to act, the act has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune from collateral attack on the ground of nullity. It has co-relation with the Constitutional and Statutory power of tribunal or court to hear and determine. It means the power or capacity fundamentally to entertain, hear and determine. Nuslie Neville Wadia v. Ivory Properties, (2020) 6 SCC 557.

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Section 304-B IPC – Ingredients of

Section 304-B IPC was incorporated in the Penal Code by the Dowry Prohibition (Amendment) Act, 1986. The object of the amendment was to curb dowry death. Section 304-B does not categorise death, it covers every kind of death that occurs otherwise than in normal circumstances. Where the other ingredients of Section 304-B of the Code are satisfied, the deeming fiction of Section 304-B would be attracted and the husband or the relatives shall be deemed to have caused the death of the bride.

        The essential ingredients for attraction of Section 304-B are:

  • The death of woman must have been caused in unnatural circumstances.
  • The death should have occurred within 7 years of marriage.
  • Soon before her death the woman must have been subjected to cruelty or harassment by her husband or his relatives and such cruelty or harassment must be for or in connection with the demand for dowry, and such cruelty or harassment is shown to have been meted out to the woman soon before her death. Preet Pal Singh v. State of Uttar Pradesh, (2020) 8 SCC 645.   

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Remedy to An Allottee — Under RERA Act

In terms of Section 18 of the RERA Ct, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the project. Such right of an allottee is specifically made “without prejudice to any other remedy available to him”. The rights so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the project. In that case he is entitled to an must be paid interest for every month of delay till the handing over of the possession. It is up to the allottee to proceed either under Section 18(1) or under proviso to Section 18(1). Imperia Structures Ltd. v. Anil Patni, (2020) 10 SCC 783.

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