Monthly Archives: October 2013

Dishonour of Cheque – Territorial Jurisdiction

The issue of territorial jurisdiction under Section 138 Negotiable Instruments Act was considered by the Hon’ble Supreme Court in K. Bhaskaran v. Shankaran Vaidhyan Balan, (1999) 7 SCC 510. The Hon’ble Supreme Court observed that the following five acts are essential to constitute an offence under Section 138 of the NI Act and if these five different acts were done in five different localities, any one of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for offence under Section 138 of the Act:
“(1) Drawing of the cheque;
(2) Presentation of the Cheque to the Bank;
(3) Return of the Cheque unpaid by the Drawee Bank;
(4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and
(5) Failure of the drawer to make payment within 15 days of the receipt of notice.” Ram Chandra Agarwal v. State of U.P., 2013 (82) ACC 886.

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Filed under Negotiable Instruments Act, Territorial Jurisdiction

Law of Limitation

In a recent judgment of the Supreme Court of India, it was held as under:
“It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lex sed lex” which means “the law is hard but it is the law” stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute. A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” Popat Bahiru Govardhane v. Special Land Acquisition Officer, 2013 (121) RD 249.

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Filed under Civil Law, Limitation

Domiciles – Kinds of

Domiciles are of three kinds, viz., domicile of origin, the domicile by operation by operation of law and the domicile of choice. Domicile of origin is not necessarily the place of birth. The birth of a child at a place during absence of the parents from their domicile will not make the place of birth as the domicile of the child. In domicile of choice one is abandoned and another domicile is acquired but for that, the acquisition of another domicile is not sufficient. Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin.
The right to change the domicile of birth is available to any person not legally dependant and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile. Therefore, the person who alleges it has to prove that. Intention is always lodged in the mind, which can be inferred from any act, event or circumstance in the life of such person. Residence, for a long period, is an evidence of such an intention so also the change of nationality. Sondur Gopal v. Sondur Rajini, (2013) 7 SCC 426.

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Filed under Civil Law, Domicile

MBA and MCA Courses-Approval from AICTE not Required

In a recent judgment of the Hon’ble Supreme Court of India in Association of Management of Private Colleges v. All India Council For Technical Education and others, (2013) 8 SCC 271 it was held as under:
“As per the definition of “technical education” under Section 2(g) of the AICTE Act and non-production of any material by AICTE to show that MBA course is not a technical course within the definition of the AICTE Act and insofar as reasons assigned for MCA course being “technical education” are concerned, the same does not hold for MBA course. Therefore, for the reasons assigned while answering the points which are framed insofar as the MCA course is concerned, the approval from AICTE is not required for obtaining permission and running MBA course by the appellant Colleges.”
It was further held as under:
“The common impugned judgment and order passed in Sadakathullah Appa College v. All India Council for Technical Education, (2004) 1 CTC 1 is hereby set aside. The civil appeals are allowed. The relief sought for in the writ petitions is granted insofar as not to seek approval from AICTE for MBA and MCA courses.”

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Filed under Education Law, MBA and MCA Courses

Industrial Dispute-Settlement arrived outside the conciliation proceedings

A settlement arrived at outside the conciliation proceedings has a limited application in the sense that it merely joins the parties to the agreement, whereas a settlement arrived at in the course of the conciliation proceedings binds all the parties to the Industrial Dispute not only parties to the settlement, but All such persons employed in the establishment. Further a settlement arrived in the course of conciliation proceedings with the recognized majority union would be binding on all the workers of the establishment, even to a minority union, who may have objected to the same. Hawkins Cookers Mazdoor Union and others v. Conciliation Officer, 2013 (5) AWC 4841

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Filed under Industrial Dispute, Labour Law

Landlord – Cannot be denied Eviction

It is well established that findings on twin issues of bona fide need and comparative hardship are findings of fact. Equally well settled is the proposition that High Court in exercise of it’s jurisdiction under Article 226 of the Constitution of India does not interfere with the findings of fact unless it is demonstrated that the same is vitiated by manifest error of law or is patently perverse or based on non consideration or misreading of any material piece of evidence.
No doubt whenever a decree of eviction is passed against a tenant he shall suffer hardship but the same by itself cannot constitute hardship of greater degree so as to refuse the landlord a decree for eviction. The owner of a property cannot be denied eviction and compelled to live poorly and without a decent livelihood merely to enable the tenant to carry on his flourishing business activity. Shrawan Kumar and Another v. Rajat Verma, 2013 (5) AWC 4771.

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Filed under landlord and tenant

Joint Hindu Family and Patriarchal Family – Property – Concept of

The concept of Joint Hindu Family and its Karta is quite ancient and an integral part of the way of living and customary rules of society among Hindus. In India and particularly among Hindus the family bonds are not only very strong but they have given right to a society who believe in a Joint Family even going to the extent of concept of village community. In the concept of property, there have been three layers, i.e. Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his offsprings. The Joint family may include within itself the members, related to each other, though not having common ancestors and goes beyond the family flowing from father himself. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situation in India is totally different. Here the joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and may make a self acquired fortune by dint of his own labour, capacity and merits and he is the absolute owner of estate but in a couple of generations his offsprings would ramify in a joint family, like a banyan tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs.
The “patriarchal family” may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grandfather, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect , if not always of affection, which is probably seated deeper than any positive institution. Manu says, “three persons, a wife, a son, and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong. “ Narada says, “he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he may have grown old.”
The “joint family” is normally a transitional form from “patriarchal family” at the death of common ancestors or head of the house. If the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the latter can only be so by a delegated authority. He is the primus but inter pares. An undivided Hindu family thus is ordinarily joint not only in estate but in food and worship. The presumption therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin. However, there is no presumption that a family because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not a necessary requisite for constitution of a joint family, though where persons live together joint in food and worship, it is difficult to conceive of their possessing no property whatsoever, such as ordinary household articles which they would enjoy in common. Smt. Ramwati v. Dharmdas, 2013 (120) RD 842.

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Filed under Civil Law, Joint Hindu Family, Uncategorized