Tag Archives: jurisdiction

Defect of Jurisdiction

A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of the parties. In the case of Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193, the Hon’ble Supreme Court followed the law laid down in its earlier decision in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 and observed as under:

        “It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullity.”         It has been laid down that it is a well established principle that a decree passed by a Court without jurisdiction is a nullity and the plea can be setup whenever and wherever the decree is sought to be enforced or relied upon and even at the stage of execution or in collateral proceedings. Saurabh Gupta v. Union of India, 2018 (127) ALR 388.

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Due Course of Law

In the case of East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) SCC 29, Hon’ble Supreme Court observed as under:

“What is meant by due course of law? Due course of law in each particular case means such an exercise of the powers by duly constituted Tribunal or Court in accordance with the procedure established by law under such safeguards for the protection of individual rights. A course of legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must thus be a Tribunal competent by its constitution, that is by law of its creation, to pass upon the subject matter of the suit or proceedings; and, if that involves merely a determination of the personal liability of the defendant, it must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Due course of law implies the right of the person affected thereby to be present before the Tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right determination of the controversy by proof, every material fact which bears on the question of fact or liability be conclusively proved or presumed against him. This is the meaning of due course of law in a comprehensive sense.”   Sawwad Ali v. Rajesh Kumar, 2019 (135) ALR 927.

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Jurisdiction – Meaning of

Jurisdiction is the authority or power of the Court to deal with a matter and make an order carrying binding force in the facts. In support of judicial opinion for this view reference may be made to the Permanent Edition of “Words and Phrases” Vol. 23-A at P. 164. It would be appropriate to refer to two small passages occurring at pp. 174 and 175 of the volume. At p. 174, referring to the decision in Carlile v. National Oil & Dev. Co., 83 Okla 217 : 201 P 377 (1921), it has been stated:
“Jurisdiction is the authority to hear and determine, and in order that it may exist, the following are essential: (1) A court created by law, organized and sitting; (2) authority given to it by law to hear and determine causes of the kind in question; (3) power given to it by law to render a judgment such as it assumes to render; (4) authority over the parties to the case if the judgment is to bind them personally as a judgment in personam, which is acquired over the plaintiff by his appearance and submission of the matter to the court, and is acquired over the defendant by his voluntary appearance, or by service of process on him; (5) authority over the thing adjudicated upon its being located within the court’s territory, and by actually seizing it if liable to be carried away; (6) authority to decide the question involved, which is acquired by the question being submitted to it by the parties for decision.” State of Jharkhand v. Hindustan Construction Company Ltd., (2018) 2 SCC 602.

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Companies Act – Right to Appeal

In the case of M/s Videocon International Ltd. v. S.E.B.I., (2015) 4 SCC 33 a right of appeal has been understood to be a substantive right and not a mere procedural right so as to affect it’s applicability upon any amendment. The forum of appeal as provided under Section 483 of the Companies Act would not stand altered as no such provision in such a situation is contemplated so as to transfer the right of appeal before the Company Appellate Tribunal.
The enforcement of Section 303 of the Companies Act w.e.f. 15.12.2016 would not repeal the right or abrogate the right of a person to file an appeal against the order of a learned Single Judge in a company petition for which the High Court continues to have jurisdiction to decide the matter. The Company Appellate Tribunal has not been conferred with any such authority specifically as an alternative, granting a right of appeal as against an order of a learned Single Judge passed in a company petition. In the absence of any such specific conferment of power on the Company Appellate Tribunal the powers statutorily granted under Section 483 of the Companies Act would stand revealed, cannot be repealed. The doctrine of implies repeal, therefore, will have no application in view of the aforesaid background of the legislation as no such express intention can be gathered from the same. J.R. Organics Ltd. v. Jupiter Dyechem Pvt. Ltd., 2017 (1) AWC 751.

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Arbitration – Jursidiction for Raising a Challenge

A perusal of Section 42 of the Arbitration and Conciliation Act, reveals a clear acknowledgement by the Legislature, that the jurisdiction for raising a challenge to the same arbitration agreement, arbitration proceeding or arbitrable award, could most definitely arise in more than one court simultaneously. To remedy such a situation Section 42 of the Arbitration Act mandates, that the court wherein the first application arising out of such a challenge is filed, shall alone have the jurisdiction to adjudicate upon the dispute(s), which are filed later in point of time. The above Legislative Intent must also be understood as mandating, that disputes arising out of the same arbitration agreement, arbitral proceeding or arbitral award, would not be adjudicated upon by more than one court, even though jurisdiction to raise such disputes may legitimately lie before two or more courts. State of Maharashtra v. Atlanta Ltd., (2014) 11 SCC 619.

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Offence Under Section 138 Negotiable Instrument Act – Jurisdiction

(1)An offence under Section 138 of the Negotiable Instrument Act is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.
(2)Cognizance of any such offence is however forbidden under section 142 of the Negotiable Instrument Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138.
(3)The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if —
(a)the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue.
(b)If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonor of the cheque, and
(c)If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice.
(4)The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act.
(5)The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the Court till such time cause of action in terms of clause (c) of proviso accrues to the complainant.
(6)Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured.
(7)The general rule stipulated under Section 177 CrPC applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the court within whose jurisdiction the dishonor takes place except in situations where the offence of dichonour of the cheque punishable under Section 138 is committed alongwith other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof. Dashrath Rupsingh Rathod v. State of Maharashtra, 2014 (86) ACC 882.

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Cognizance taken by Magistrate

In Black’s law Dictionary the word “cognizance” has been defines as under:
“Cognizance/Ko(g) nezens/ Jurisdiction or the exercise of jurisdiction or power to try and determine causes; judicial examination of a matter or power and authority to make it. Judicial notice or knowledge; the judicial hearing of a cause; acknowledgment; confession; recognition.”
In oxford Dictionary the word “cognizance/ko (g) niz(e)ns/(also cognizance)” n.1. Formal knowledge or awareness –Law the action of taking judicial notice. 2. Heraldry a distinctive device or mark, especially as formerly worn by retainers of a noble house. PHRAZES take cognizance of formal attend to; take account of.”
In the New Lexicon Webster’s Dictionary of the English Language the word “cognizance” has been defined as under:—
“cog-ni-zance (kgnizens, konizens) n. the range of mental observation or awareness/the fact of being aware, knowledge/(law) the power given to a court to deal with a given matter, jurisdiction/(heraldry) a distinguishing device beyond one’s cognizance not one’s concern, outside one’s terms of reference to have cognizance or to take into one’s reckoning cognizant adj., cognize (kbgnaiz) pres. Part. Co. gniz.ing past and past part, cog.nized v.t. To make (something) an objection of cognition (O.F. conoissance, knowledge).”
The Hon’ble Apex Court has elaborately dealt with the expression “taking cognizance” in Re Chief Enforcement Officer v. Videocon International Ltd. And others, (2008) 2 SCC 492. In paras 19 and 20 the Hon’ble Apex Court deals with the expression cognizance as under:
“ The expression cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a court or a judge, it connotes to take notice of judicially.” It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by anyone.
“Taking cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case. And no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.”
In view of the legal position, it is crystal clear that cognizance of an offence is taken depending on the facts and circumstances of the case.
Once the Magistrate takes cognizance of an offence either without discussing what are the reasons behind it, it shall be presumed that on the basis of material available before him he is satisfied that there is sufficient material for taking cognizance and if he is satisfied with those materials for taking cognizance, the detailed discussion of those materials by the learned Magistrate is not required. Further once he issues process, even without writing word ‘cognizance’ it is presumed that he has taken cognizance, the writing of word ‘cognizance is taken’ is not necessary. The reason is that by issuance of process he proceeds with the case and the accused who has been summoned for trial have sufficient opportunity to defend himself at the appropriate stage provided in the Code. In response of issuance of process/summons it is not open for the accused to challenge the summoning order on the ground that no cognizance has been taken or no satisfaction has been shown or there is no detail discussion of the material available rather he has to follow the next step of the process. Ms. Sonia Gobind Gidwani v. State of U.P., 2013 (83) ACC 312.

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