Suit for specific performance – Readiness and willingness of vendee – Plea of vendor that vendee does not have sufficient money – Contract Act, S. 55
Once finding is recorded by High Court and Trial Court that vendor did not perform her part of contract. Then failure on part of vendee to demonstrate that he was having sufficient money with him to pay balance sale consideration is not much of consequence. Vendee deposited entire balance sale consideration as directed by Trial Court within extended period of time. Plea that vendee was not willing to perform his part of contract cannot be accepted. High Court rightly passed decree for specific performance. Plea of hardship by vendor not raised in written statement. Cannot be entertained for first time in appeal by way of SLP, moreso when concurrent findings that vendee was ready and willing to perform his part of the contract had been recorded by lower courts.
Beemaneni Maha lakshmi v. Gangumalla Appa Rao (Since Dead) By LRs. : AIR 2019 Supreme Court 3013.
Second Appeal – Procedure to be followed – High Court framing substantial question of law while delivering judgment and not at time of admission of appeal – Matter remanded back to High Court for deciding afresh – Civil P.C., S. 100(4), (5)
High Court framing substantial question of law while delivering judgment and not at time of admission of appeal, Procedure adopted by High Court contrary to S. 100. Similarly, the High Court could have taken recourse to the powers conferred by proviso to Section 100 (5) of the CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment. Matter remanded back to High Court for deciding afresh
Arulmighu Nellukadai Mariamman Tirukkoil v. Tamilarasi (Dead) By LRs.: AIR 2019 Supreme Court 3027
Dishonour of cheque – Offences by Companies – For prosecution under S.141 arraigning of Company as accused is imperative Negotiable Instruments Act, Ss. 138, 141
Cheque issued by accused on behalf of Company in capacity of being its Director. Demand notice served only on accused and complaint was lodged only against him without arraigning Company as accused. Complaint filed against accused, authorise signatory of company without arraigning Company as accused. Not maintainable. In absence of issuance of notice to Company, order of High Court directing to arraign company as accused, erroneous.
Himanshu v. B. Shivamurthy and anr. AIR 2019 Supreme Court 3052
Succession – Grant of probate or letters of administration – Limitation. Succession Act of 1925, Ss. 228, 276
In an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. Therefore, even if the will is probated by any court mentioned in Section 228 of the Act, right to get the letters of administration is a continuous right which can be exercised any time, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed.
Sameer Kapoor and Anr v. State through Sub-Division Magistrate South, New Delhi & Others AIR 2019 Supreme Court 3318.
Cross-objection – Dismissal of Cross objection without assigning any reason – Validity : Civil P. C. O. 41, R. 22 (4)
Order 41 Rule 22 of the Code provides that where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. Merely because the High Court dismissed the appeals though on merits, yet that by itself would not result in dismissal of the landowners’ cross objection also. In our view, the cross objection had to be disposed of on its merits notwithstanding the dismissal of the appeals as provided by in Order 41 Rule 22 (4) of the Code by assigning reasons. Though the High Court dismissed the appeals of the State/NTPC on merits yet it was obligatory on the part of the High Court to have independently examined the issues raised by the landowners (respondents in appeal) before the High Court in the cross objection with a view to find out as to whether any case was made out on facts by the landowners for further enhancement in the compensation and, if so, to what extent.
Badru ( Since deceased) through L. R. Hari Ram etc. v. NTPC Ltd. (formerly NTPC Ltd.) & Ors. AIR 2019 Supreme Court 3385.
Right to life – Mobilizing School children for Govt. Programme on Sunday by issuing Govt. Orders – Violates fundamental right of children to participate in Govt. Programmes by issuing Govt. Orders. Constitution of India , Arts. 21, 51-A, 355
Art. 21 guarantees “right to life” as a fundamental right and everyone is entitled to lead life safely with dignity subject to responsible restriction. It is the duty of state to protect such right of an individual citizen. Therefore, compelling any person including school going children or Collage student by issuing Govt. Order to participate in any programme when they are unwilling listeners is nothing but a captive audience and such order of the Government Violates not only fundamental right of citizen of the country but also violates human rights of individual including the children. State is under obligation to act in accordance with the provision of the constitution, where it’s primary task is to provide security to all citizen without violating human dignity. But the state insisted the school children to participate in such programmes, which would amount to violation of their fundamental right guaranteed under the constitution, so also their human right.
M/s. Old Students Association, Post Graduates College, Osmania University, Hyderabad v. State of Andhra Pradesh and another. AIR 2019 Andhra Pradesh 25.
Public documents – Report of bailiff, written on reverse side of summons issued by court – Is not public document as per S. 74 : Evidence Act Ss. 74, 77
Treating a bailiff report of service of summons as in the present case, to be a public document under Section 74 of the said Act, would not be in consonance with law. This is because the report of a bailiff, as in this case, on the reverse of the document of summons issued by the Court is nothing but his opinion about service of summons or otherwise on the person to whom the summons have been issued by the Court. Although, it may be an official act, the report itself submitted by the bailiff in pursuance of the summons issued by the Court, cannot be said to be an act of the Court or record of an act of the Court, to qualify as a public document under Section 74 of the said Act.
Sushilkumar Mandanlal Ganediwal v. Vijaykumar Madanlal Ganediwal. AIR 2019 Bombay 201.
Arbitrary action and wrong decision relating to Govt. Contracts – Distinction between.
There is a distinction between an arbitrary action and a wrong decision. An arbitrary action is one in which the decision maker has taken no guide other than his own will or pleasure and the decision is not fixed by any rule or which is not based on a disclosure of discernible principle. It is something unpredictable being whimsical and capricious.
A wrong decision is one which may not necessarily be arbitrary and may be based on the strength of inferences which can be described as incorrect without any element of mala fides or irrationality. Such a decision falls within the realm of interpretation and may also be an outcome of error of judgment which is predictable.
A wrong decision may therefore necessarily may not be an outcome of sheer arbitrariness. In a given situation, there may be two views possible. One may be right whereas the other may prove to be ultimately wrong or vice-versa. A decision of this nature that may be ultimately wrong may not necessarily be arbitrary as both views may be predictable. To gather arbitrariness one has to arrive at the conclusion that the decision is absolutely unreasonable which no prudent man can ever arrive at. Reasonableness and prudence are subjective in nature but in the administrative decision making process they are construed to mean that there is rationality and an assessment where the thought process has some rationale which may be right in one situation and wrong in another depending upon the facts and circumstances of a case. Further, the perception with which the decision making authority has proceeded to take an action, has also to be assessed as to whether it was motivated or the outcome of a mere whim or was it with the plain intention of taking an impartial and uninfluenced decision. In arriving at a conclusion, a correct or incorrect appreciation based on existing material will make the decision right or wrong but if the decision is without any rational perception and is whimsical then it becomes arbitrary.
Vijeta Projects and Infrastructure Ltd. Ranchi v. State Of Bihar and others. AIR 2019 (NOC) 492 (PAT.)
Banking transaction – Unauthorised withdrawal by fraudsters – Bank liable for loss caused to their customer : Banking Regulation Act, S. 6
The relationship between a bank and its customers arises out of the contracts entered into between them. Such contracts consist of general terms applicable to all transactions and also special terms applicable to the special services, if any, provided by the bank to its customers. The relationship between a bank and its customer, insofar as it relates to the money deposited in the account of a customer, is that of debtor and creditor. The contractual relationship exists between a bank and its customers are founded on customs and usages. Many of these customs and usages have been recognized by courts and it is now an accepted principle that to the extent that they have been so recognized, they are implied terms of the contracts between banks and their customers. Duties of care is an accepted implied term in the contractual relationship that exists between a bank and its customer. It is impossible to define exhaustively the duties of care owed by a bank to its customer. It depends on the nature of services extended by the bank to its customers. But one thing is certain that where a bank is providing service to its customer, it owes a duty to exercise reasonable care to protect the interests of the customer. Needless to say that a bank owes a duty to its customers to take necessary steps to prevent unauthorised withdrawals from their accounts. As a corollary, there is no difficulty in holding that if a customer suffers loss on account of the transactions not authorised by him, the bank is liable to the customer for the said loss.
State Bank Of India, Kottayam v. P. V. Geoege: AIR 2019 Kerala 140.
Family arrangement / release deed – Registration Act, Ss. 17, 49 Proviso – Stamp Act, Ss. 35 :
Document not registered. Document not intended to be brought in for collateral purpose but for extinguishing right and title over suit properties. Unregistered document, not admissible.
S. Venkatachalam and others v. Kamalathal and Others AIR 2019 Madras 201.