1. Insurance – Theft of vehicle –Lodging of complaint – Delay of 8 days – Limitation – Insurance company liable : Consumer Protection Act
It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.
Om Prakash v. Reliance General Insurance and Anr.: AIR 2017 Supreme Court 4836
2. Parole and Furlough – Distinction between – Enumerated : Prisons Act 1894, S. 59
Parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission. This Court, through various pronouncements, has laid down the differences between parole and furlough, few of which are as under:
(i) Both parole and furlough are conditional release.
(ii) Parole can be granted in case of short term imprisonment whereas in furlough it is granted in case of long-term imprisonment.
(iii) Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
(iv) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
(v) For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
(vi) The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
(vii) Parole can be granted number of times whereas there is limitation in the case of furlough.
(viii) Since furlough is not granted for any particular reason, it can be denied in the interest of the society.
Asfaq v. State of Rajasthan and Others: AIR 2017 Supreme Court 4986
3. Special leave to appeal – Filed by private party – Is maintainable as he is an aggrieved person: Constitution of India Art. 136 Criminal Jurisprudence – Locus standi concept – Is foreign to criminal jurisprudence
Article 136 does not confer a right to appeal on any party but it confers a discretionary power on the Supreme Court to interfere in suitable cases. The exercise of the power of the court is not circumscribed by any limitation as to who may invoke it. It does not confer a right to appeal, it confers only a right to apply for special leave to appeal. Therefore, there was no bar for the appellant to apply for special leave to appeal as he is an aggrieved person.
Ratanlal v. Prahlad Jat and Others: AIR 2017 Supreme Court 5006
4. Muslim Law – Gift by father to minor son – Delivery of possession
Delivery of possession by a Mahomedan father to his minor child is, for all practical purposes, delivery by right hand to the left hand. This is evidently the reason why the strict requirement of delivery of possession is not strictly insisted upon in the case of a bona fide gift by the father to his minor child. In a sense the requirement continues, but it is fulfilled in a somewhat different manner. Upto the date of the gift, the father is in possession of the relevant property on his own behalf and on and from the date of the gift he is in possession of the same, but only on behalf of the minor.
Shamshed Begum v. Sadiq Basha & Ors : AIR 2017(NOC) 1042(Mad.)
5. Contract – Memorandum of Undertaking (MOU) – Binding nature
Whether an MOU would constitute a binding contract depends only on the presence or absence of well-defined legal elements in the text proper of the document (the so-called “four corners”). The required elements are: offer and acceptance, consideration, and the intention to be legally bound. The legal ramification of the MOU is, an MOU signals a legal contract is imminent. However, an MOU itself is not legally defensible but should still clearly outline specific points of an understanding. An MOU should describe who the parties are, what the project is that they are agreeing on, the scope of the document, each party’s roles and responsibilities and more. An MOU forces the participating parties to reach a semblance of a mutual understanding, and in the process, the two sides naturally mediate and figure out what is most important in moving towards an eventual future agreement that benefits both sides.
M/s. Enkon Pvt. Ltd. v. Bhubaneswar Smart City Ltd.: AIR 2017(NOC) 1057(Ori.)
6. Borrower – Definition of – Includes person, who has given any guarantee or created any mortgage or pledge as security for financial assistance granted by any bank or financial institution: SARFAESI Act
The definition of ‘borrower’ takes in its sweep even a person who has given guarantee or created any mortgage or pledge as a security for the financial assistance granted by any bank or financial institution. The security interest means right, title or interest of any kind whatsoever upon property, created in favour of any secured creditor and includes any mortgage, charge, hypothecation, assignment other than those specified in Section 31. The creation of security interest to secure the debt of the bank or financial institution does not fall within Section 31 of the Act. Security interest could be created under the security agreement as defined in Section 2(zb) of the Act and on creation of such security interest, the debt of the bank or financial institution is secured. Therefore, a person who has given any guarantee or created any mortgage or pledge as security for financial assistance granted by any bank or financial institution, is a borrower within the meaning of ‘borrower’ under the Act.
Sagar Innovative Private Limited v. Punjab National Bank and Another. : AIR 2017(NOC) 1109(GUJ)
7. Execution of power of attorney authenticated by foreign notary – Recognition of notarial act : Notaries Act Sec. 14
Acceptance of notarial attestation and notarial certificates of Notary public of India by reciprocal country. Mutual reciprocity being established, notification in Official Gazette to declare notarial acts as legal, not required. Notarial attestation on power of attorney, proper.
Jaldhi Overseas Pte. Ltd. v. Bhushan Power & Steel Ltd. : AIR 2017(NOC) 1111 (Cal.)
8. Wills – Doctrine of ‘dependent relative revocation’ applicable –Execution of Will – Evidence Act 1872, S.68; Succession Act, sec 63.
Date of valid attestation. Necessarily be date of execution, presence of attesting witness on subsequent date of registration instead of date of execution, does not make attestation valid.
Revocation of earlier Will by Subsequent Will. Subsequent Will, however, surrounded by suspicious circumstances on ground of lack of proof of execution and attestation. Failure of propounder to dispel said suspiciousness. Doctrine of ‘dependent relative revocation’ applicable. Original Will shall remain in force.
Doctrines of ‘Dependent relative revocation means if Will intended to be substituted, is inoperative from defect of attestation or any other cause, revocation fails and original Will remains in force.
K. C. Binu and Another v. Leela Kollandi and Others: AIR 2017(NOC) 1119 (Ker.)
9. Pleadings – Can be treated as proof only if averments stated in plaint are admitted in written statement
The plaint and the written statement are the “pleadings” of the parties and they stand on a different footing. The pleadings cannot take the place of proof according to the Evidence Act. If the pleadings are to be considered as evidence, then the efficacy of the Evidence Act and the burden of proving the facts pleaded would be lost. The aforesaid stands with the exception that after the plaint, if there is an admission in the written statement, then the Court may not insist for proof, but thereby, it cannot be said that the power of the Court for insistence of the proof does not exist on a mere admission, but such power leaves discretion upon the Court to act on admissions. Pleadings cannot be treated as proof unless there is an admission of the averments stated in the plaint in the written statement of the defendant.
Legal Heirs of Decd. Umedmiya R. Rathod & Others v. State of Gujarat : AIR 2017 (NOC) 1146 (Guj)
10. Interpretation of statutes – Non- obstante – Purpose
Non-obstante Clause is sometimes added to a Section in the beginning, with the view to give enacting part of the Section, in case of conflict, an overriding effect over the provisions of Act mentioned in that Clause. In other words, in spite of the provisions of the Act mentioned in the Non-obstante Clause, the enactment following it, will have its full operation or that the provisions enacted in the Non-obstante Clause will not be an impediment in the operation of the enactment. It is well known rule of interpretation that on construction, the entire Act must be looked into as a whole. The Court cannot add words to a statute or read words into it which are not there. When the purpose and object or the reason and spirit pervading through the statute is clear, the Court must adopt a purposive approach in interpreting such a statute.
Jahan Singh v. State of U.P. and Others : AIR 2017 (NOC) 247 (All.)
Advocate Act, 1961
Foreign law firms and foreign lawyers cannot practice profession of law in India either in the litigation or in non-litigation side though they can “fly in and fly out” for the purpose of giving legal advice to their clients in India regarding foreign law.
Foreign law firms and foreign lawyers cannot practice profession of law in India either in the litigation or in non-litigation side though they can “fly in and fly out” for the purpose of giving legal advice to their clients in India regarding foreign law. The expression “fly in and fly out” will only cover a casual visit not amounting to “practice”. If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, foreign lawyers are not debarred from conducting arbitration proceedings arising out of international commercial arbitration but will be governed by code of conduct applicable to the legal profession in India. B.P.O. Companies providing wide range of customised and integrated services and functions to its customers like word processing, secretarial support, transcription services, proof reading services, travel desk support services, etc. may come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules if in pith and substance the services amount to practice of law. We also modify the direction of the Madras High Court in Para 63(iv) that the B.P.O. Companies providing wide range of customised and integrated services and functions to its customers like word processing, secretarial support, transcription services, proof reading services, travel desk support services, etc. do not come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules. We hold that mere label of such services cannot be treated as conclusive. If in pith and substance the services amount to practice of law, the provisions of the Advocates Act will apply and foreign law firms or foreign lawyers will not be allowed to do so. The Civil Appeals are disposed of accordingly. (CA Nos. 7875-7879 of 2015, dt. 13-3-2018)
Bar Council of India v. A. K. Balaji & Co. (SC), www.itatonline.org
Hindu Succession Act, 1956
S.6: Hindu Undivided Family (HUF) – Married daughters can be said to be the coparceners in the HUF and are entitled to the ancestral property even if they were born prior to the amendment to the Hindu Succession Act.
The very factum of birth in a coparcenary creates the coparcenary. Therefore the sons and daughters of a coparcener become coparceners by virtue of birth. The amendment to s. 6 of the Hindu Succession Act, 1956 in 2005 statutorily recognises the rights of coparceners of daughters as well since birth. Consequently, married daughters can be said to be the coparceners in the HUF and are entitled to the ancestral property even if they were born prior to the amendment to the Hindu Succession Act. (CA Nos. 188-189 of 2018, dt. 1-2-2018)
Danamma @ Suman Surpur v. Amar (SC), www.itatonline.org