Monthly Archives: January 2016

Uttar Pradesh Apartment Act – Common Expenses

Common expenses are of two kinds : one, general common expenses incurred in running, maintaining the common areas and facilities which is referred to as the Annual Maintenance Contract (AMC), second type of expenses declared as expenses for which the resolution of the general body of the association is required, therefore, every and any kind of expenses cannot be included in the Annual Maintenance Contract, therefore, any default in payment of such expenses would not debar a member from participating in the election. It is only the common expenses which being the Annual Maintenance Contract which is paid by the residents/apartment owners would be entitled to participate in the activities of the association including elections. Resident Welfare Association v. State Of U.P., 2016 (114) ALR 404.

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Filed under Uttar Pradesh Apartment Act

Pre-condition for Leading – Secondary Evidence

The pre-condition for leading secondary evidence are that such original documents could not be produced by the party relied such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted. Rakesh Mohindra v. Anita Beri, 2016 (114) ALR 253.

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Filed under Evidence Act, Secondary Evidence

Common Object and Common Intention

Common object is different from common intention as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined keeping in view the nature of the assembly, the arms carried by the members and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the explanation to section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful assembly is not material. An assembly which, at its commencement or even for sometime thereafter, is lawful may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instante. Ram Lal v. State of U.P., 2016 (92) ACC 399.

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Filed under Common Object, Criminal Law

Breach of Contract vis a vis Offence of Cheating

In Rashmi Jain v. State of U.P., 2014 (1) SCALE 415, the court said that mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning, i.e., when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.
In Vesa Holdings Pvt. Ltd. v. State of Kerala, 2015 CRLJ 2455 the court held that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words, for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 IPC can be said to have been made out. Suneel Galgotia v. State of U.P., 2016 (92) ACC 40.

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Filed under Criminal Law, Offence of Cheating

Structural alteration – When calls for Eviction of a Tenant

It is not every kind of construction or structural alteration which will give rise to a cause of action for evicting a tenant. The offending construction or structural alteration must be if the type as was likely to result either in diminishing the value or utility of the building or in causing disfigurement thereof. In the absence of this, the raising of construction, making structural alteration per se will not give cause of action for eviction of the tenant. Mukesh Chandra Aggarwal v. Smt. Kamlesh Jain, 2015 (113) 893.

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Filed under Rent Law, Structural Alteration