1. Deficiency in service — Delay in dematerialisation of shares amounts to deficiency in service

The application investor had applied for dematerialisation of shares. There was a delay in dematerialisation of shares due to negligence of participant (Bank) in providing incorrect information and delay in submitting the application. Due to the said negligence and delay the applicant investor had suffered loss.

The Commission under Consumer Protection Act directed the Depository to indemnify the applicant investor and to recover the same from the negligent participant (Bank).

M/s. Indusind Bank Ltd etc. vs. Smt. Vimal Mittal & Ors. AIR 2007 NOC 1599 (NCC)

2. Deficiency in service : Issuance of wrong mark sheet by Board of Secondary Education: Consumer Protection Act, Sec. 2 (1)(g)

One of the candidates had lost one year due to issuance of wrong mark sheet by the Board of Secondary Education. Due to such deficiency the candidate had cascading and cumulative effect on his whole life.
The National Consumer Commission held that the Board of Secondary Education is duty bound to issue errorless mark sheet to its candidates and the Board was liable to pay compensation to the candidate for deficiency in service.

Secretary, Board of Secondary Education, Orissa vs. Ms. Sasmita Moharana AIR 2007 (NOC) 1614 (NCC) = 2007 (3) ALJ 441 (DB)

3. Documents: Construction

The issue before the Hon’ble Court was whether the document in question is a Bank guarantee or contract of indemnity.

A document, as is well known, must primarily be construed on the basis of the terms and conditions contained therein. It is also trite that while construing a document the court shall not apply any words which the author thereof did not use.

The document in question does not on its face contain any ambiguity. Surrounding circumstances are relevant for construction of a document only if any ambiguity exists therein and not otherwise.

According to the Hon’ble Court the document, constitutes a document of indemnity and not a document of guarantee as it was clear from the fact that by reason thereof the appellant was to indemnify the co-op. society against all losses, claims, damages, actions and costs which may be suffered by it. The document does not contain the usual words found in a bank guarantee furnished by a bank.

State Bank of India & Anr vs. Mula Sahakari Sakhar Karkhana Ltd. AIR 2007 SC 2361

4. Ex parte order

Judgment should be reasoned even where the case was decided ex parte:

The Hon’ble Bombay High Court observed that the process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in judgment. Whether it is a case which is constested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under O. 8, R. 10 of CPC. The Court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved.

M/s. Meditronics Corporation of India & Ors. vs. Dr. Mrs. Salima A. Rais AIR 2007 (NOC) 735 (Bom) = 2007 (1) AIR Bom R. 553

5. Hindu Law — Joint family property cannot be bequeathed by the Karta by a will in its entirety

Father who was a statutory purchaser of the land cultivated the same as his family property. The sons were also contributing for family requirements and cultivation expenses. The Hon’ble Bombay High Court held that from the own acts of the father it was proved that the property was a joint family property. Therefore, he cannot bequeath the entire property by a will. He can bequeathed only in respect of his share in the property.
Sarojani Chandrakant Tirnekar vs. Smt. Yamunabai Sopan Zol and Ors. 2007 (3) AIR Bom R 605 = AIR 2007 (NOC) 1631 (Bom)

6. Precedent

On failure of Revenue to appeal in the case of one assessee, it is not open to the Revenue to question the same question in case of some other assessee:

The Hon’ble Apex held that if an earlier order is not appealed against by the Revenue and it has attained finality, then it is not open to the Revenue to accept the judgment / order on the same question in the case of one assessee and question its correctness in the case of some other assessee. The Revenue cannot pick and choose.
CCE vs. Amar Bitumen & Allied Products Pvt. Ltd. & Ors. (2007) 9 RC 40

7. Power of Attorney — Power of Attorney is effective and operative only during lifetime of donor

The power of attorney is given to a person who is a person of trust. A power of attorney granted by the donor to the donee is operative and effective only during the lifetime of the donor. The donor and donee stand in relationship of master and agent. Since the actions done by the donee are deemed to be actions done on the part of the donor, naturally such a power of attorney cannot be operative or be effective after the demise of the donor. Any transaction entered by the donee after demise of the donor would be illegal and void.

Prahlad & Ors vs. Laddevi & Ors. — AIR 2007 Raj 166

8. Power of Attorney

Power of Attorney holder can only appear as witness on behalf of principal, he cannot be allowed to depose in place of principal

The Hon’ble Patna High Court held that order III, rules 1 and 2 of Civil Procedure Code empowers the holder of power of attorney to ‘act’ on behalf of the principal. The word “acts” employed in order III, rules 1 and 2, CPC, confines only in respect of ‘acts’ done by the power of attorney holder in exercise of power granted by the instrument. The terms ‘acts’ would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose in respect of such acts, but he cannot depose for the principal for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined. The power of attorney holder cannot depose in place of the defendant. However, in case, it intends to appear as a witness, nothing shall prevent him from doing so.

Rajmuni Devi vs. Smt. Shyama Devi & Ors. (2007) 9 RC 309 (SC)

9. No Stamp Duty is payable on oral partition – Sec. 2(15) of Stamp Act

A decree of partition is an instrument of partition and therefore is required to be stamped under schedule 1 of Article 45 r/w section 2(15) of the Stamp Act. However, an oral family settlement dividing or partitioning the property is not required to be stamped. Similarly, a memorandum recording an oral family settlement which has already taken place is not an instrument dividing or agreeing to divide property and is therefore not required to be stamped. As the memorandum only records oral partition which has already taken place but does not in praesenti create any right, it cannot be treated as an instrument creating partition.

Nitin Jain vs. Anuj Jain & Ors. AIR 2007 Delhi 219

10. Public right must prevail over private interest. Right to Information Act

In the present case information regarding medical report of a convict admitted to hospital during period of imprisonment was sought under Right to Information Act.

The contention of the private citizen seeking information is that the larger public interest requires that this information be disclosed, as persons in high office or high positions or the like, in order to avoid serving their term in Jail/prison or orders of detention or remand to police custody or judicial remand with the connivance of officials get themselves admitted into hospitals. The public, therefore, has a right to know, as to whether such a person was genuinely admitted or admitted to avoid punishment/custody and thus defeat judicial order. The public’s right in such case, must prevail over the private interest of such third person.

Surupsingh Hrya Naik vs. State of Maharashtra AIR 2007 Bom 121

11. Order — Finality

An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient for bringing an end-result to a status or to provide a person an opportunity to take recourse of law if he is aggrieved thereby; the order is required to be communicated.

There exists a presumption that the official act is presumed to have been done in regular course of business. There also exists a presumption that a statutory functionary would act honestly and bona fide.

Municipal Corporation of Delhi vs. Qiamat Rai Gupta (2007) 9 RC 309