Interpretation of Statutes – Intention of legislature – Is best evidenced by text of statutes itself :
First and best method of determining the intention of the legislature is the very words chosen by the legislature to have the force of law. In other words, the intention of thelegislature is best evidenced by the text of the statute itself. However, where a plain reading of the text of the statute leads to an absurd or unreasonable meaning, the text of the statute must beconstrued in light of the object and purpose with which the legislature enacted the statute as a whole. Where it is contended that a particular interpretation would lead to defeating the very object of a legislation, such an interpretative outcome would clearly be absurd or unreasonable.
Council of Architecture v. Mukesh Goyal And Others: AIR 2020 Supreme Court 1736.
Trust property – Sanction to sale by Charity Commissioner – Application for revocation of sanction on ground that sanction was obtained by fraud, misrepresentation and by concealing material facts- Charity Commissioner is not denuded of his jurisdiction under S. 36(2) on ground that sanction granted has been acted upon or exhausted :
The power of revocation of sanction under Section 36(2) of the Maharashtra Public Trusts Act, 1950 on the ground that such sanction was obtained by fraud or misrepresentation or by concealing the facts, material for the purpose of giving sanction can be exercised even after the execution of a sale-deed or the multiple sale-deeds on the basis of the sanction granted under Section 36(1)(a) of the said Act. Charity Commissioner is not denuded of his jurisdiction under S. 36(2) on ground that sanction granted has been acted upon or exhausted Sale of trust property during pendency of application for revocation of sanction . The subsequent purchasers have no right to claim hearing or an opportunity to show cause in respect of the proceedings under Section 36(2) of the said Act. Obviously, their rights or defences available in law are not concluded by the order passed under Section 36(2) of the said Act by the Charity Commissioner.
Shri Avinash Kishorchand Jaiswal v. Shri Rammandi Deosthan, Pavnar AIR 2020 BOMBAY 153
Foreign judgment – Conclusiveness – Judgment of High Court of Fiji as regards due execution of Will in probate proceeding – All defendants were not parties before High Court of Fiji – Judgment per se cannot to be held to be binding qua defendant who is not shown to be party before that Court – Civil P.C. of 1908, S.13
The lower appellate court dealt with section 13 of the Code of Civil Procedure which relates to the foreign judgment and has recorded that although this Section makes the foreign judgment as binding, however, there are certain exception to it. Since there is nothing in the judgment passed by the High court of Fiji to suggest that the will has been proved in accordance with law as applicable in India, therefore, the said judgment being not in conformity with the law, as applicable in India, cannot be held to be binding upon the courts in India.
A bare perusal of the Section itself shows that the foreign judgment is declared to be conclusive qua the matter involved therein. However, it is binding upon the same parties which were before the foreign court or which may be claiming under them. First of all; there is nothing on record to suggest that all the defendants were parties before the High Court of Fiji. Hence this judgment per se cannot be held to be binding qua defendant No. 7, who is not shown to be a party before that court.
Karnail Singh v. Lashmir Kaur alias Kashmir Kaur and others AIR 2020 PUNJAB AND HARIYANA 88
Benefit of concessional stamp duty – Availability – Sister – in-law intending to convey her individual property in favour of brother-in-law by virtue of settlement deed – Concessional stamp duty would be applicable to legal heirs, who succeed to estate of persons referred to in ‘family’ – Benefit of concessional stamp duty cannot be granted.
A person may hold property either as a legal heir or as an individual. If the person is not holding the property as a legal heir, mere family relationship with the person to whom right is being conveyed will not qualify him to claim the concessional rate. The term ‘legal heir’ is an assigned norm under law with a qualification attributable in the context of the succession to an estate. A legal heir has a distinct character in his personality Independent of being a legal heir in relation to a property. That independent property with a legal heir will not be related to others based on the rule of cognation under law of inheritance. Concessional stamp duty would be applicable to legal heirs, who succeed to estate of persons referred to in ‘family’ . If person is not holding property as legal heir, mere family relationship with person to whom right is being conveyed would not qualify him to claim concessional rate Kunjithomman E.T. v. State of Kerala AIR 2020 KERALA 110
Maintenance– Claim against daughter-in-law – Maintenance and Welfare of Parents and Senior Citizens Act of 2007 Ss.2(a), 2(f), 5 :
In order to give more attention to the care and protection for the older persons, who are neglected by their family, and lack physical and financial support, and to provide them simple, inexpensive and speedy justice, Parliament introduced the Act, and the Bill in this regard, further proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives.He object of the enactment is to cast an obligation not only on the family, but also on the ‘persons’ who inherit the property of their aged relatives to maintain such aged relatives. Family has larger connotations and the same is also defined under the Act. If the persons like son-in-law and daughter-in-law and such other persons, who would be entitled in law, to inherit the property of such where the daughter-in-law has squat over the property of the parents- in-law and made them to reside in a rented accommodation, she would also come within the sweep of the definition of ‘children’ and ‘parents’ in law are entitled to maintain application against ‘daughter in law’.
H. Deepika v. Maintenance Welfare of Parents and Others AIR 2020 TELENGANA 69
Right of pre-emption – Availability:
The right of pre-emption is a preferential right to acquire the property by substituting the original vendee. The transfer or sale of an immovable property is a condition precedent to the enforceability of the right. The right of pre-emption is attached to the property and only on that footing can it be enforced against the vendee. Though the right is recognised by law, yet it can be rendered imperfect by the vendor when he transfers the property to another person who also has a superior right to the plaintiff pre-emptor.
Suresh Chand and another v. Suresh Chander (D) Thr LRs and Others: AIR 2020 Supreme Court 1144
Compensation – Doctrine of notional extension – Employee’s Compensation Act (8 of 1923), S.3
Death of driver of truck due to slipping in canal while bathing, during trip. Causal connection between death of workman and his employment established. Doctrine of “notional extension” of employment applicable. Claimants entitled to compensation. The Workmen’s Compensation Act, 1923 (now christened as Employees Compensation Act, 1923) is a piece of socially beneficial legislation. The provisions will therefore have to be interpreted in a manner to advance the purpose of the legislation, rather than to stultify it. In case of a direct conflict, when no reconciliation is possible, the statutory provision will prevail only then.
Poonam Devi and another v. Oriental Insurance Co. Ltd. AIR 2020 Supreme Court 1305
Freedom of trade and commerce and freedom of speech and expression – Through medium of internet is constitutionally protected under Art. 19(1)(g) and 19(1)(a), subject to restrictions under Art. 19(6) : Constitution of India, Art. 19(1)(g),(6)
Internet is also a very important tool for trade andcommerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected underArticle 19(1) (g), subject to the restrictions provided under Article 19(6).
Poonam Devi and another v. Oriental Insurance Co. Ltd. AIR 2020 Supreme Court 1305
Will – Rule of last intention – Applicability – Succession Act of 1925, Ss. 74, 95, 96
First clause of Will providing for sale of property during lifetime of wife of testator. Latter clause providing distribution of sale proceeds between children . First clause creating absolute right in favour of wife of testator shall prevail over later clause . Later clause cannot be treated as bequest in favour of children as it was mere desire expresses by testator . No intention of testator to compel wife to sale property during her life time . Rule of last intention, not applicable. The assertive language used in Will in favour of wife of testator shows clear intention of absolute bequest in her favour, while using of non mandatory words such as desire indicate that the testator did not wish to compel hiswife to sell the suit property testator intended to create an absolutely unfettered right in favour of his wife by virtue of the Will. Reading in other clauses that are merely expressive of his desire as compulsory dictates on such absolute ownership goes against the clear wording of the Will, and would amount to rewriting it.
M. S. Bhavani and another v. M. S. Raghu Nandan AIR 2020 Supreme Court 1441
Complaint – Locus standi – Complainant, voluntary recognised association – Can file composite complaint on behalf of more than one consumers.: Consumer Protection Act S.12(1) (b)
From a reading of Section 12(1)(b) of the Act read with Explanation to Section 12 it is clear that voluntary registered association can file a complaint on behalf of its members to espouse their grievances. There is nothing in the aforesaid provision of the Act which would restrict its application to the complaint pertaining to an individual complainant. If a recognised consumer association is made to file multiple complaints in respect of several consumers having a similar cause of action, that would defeat the very purpose of registration of a society or association and it would result only in multiplicity of proceedings without serving any useful purpose. Thus finding of the NCDRC that recognised consumer association can file complaint on behalf of a single consumer, but cannot file complaint on behalf of several consumers in one complaint, is erroneous.
Subhechha Welfare Society v. M/s. Earth Infrastructure Pvt. Ltd. AIR 2020 Supreme Court 1449
The Limitation Act , 1963
S.18 : Effect of acknowledgement in writing. – The principle of S. 9 of the Limitation Act, namely, that when time begins to run, it cannot be halted, except by a process known to law, has to be strictly adhered to. S. 18 of the Limitation Act, which extends the period of limitation depending upon an acknowledgement of debt made in writing and signed by the corporate debtor, is also applicable to the Insolvency and Bankruptcy Code since S. 238A uses the expression “as far as may be” governing the applicability of the Limitation Act. An entry made in the books of accounts, including the balance sheet, can amount to an acknowledgement of liability within the meaning of Section 18 of the Limitation Act. The notes annexed to or forming part of the balance sheet, or the auditor’s report, must be read along with the balance sheet. [S.9, 14, Companies Act, 2013 , S. 2(40), 92, 128, 129, 134, 137, Insolvency and Bankruptcy Code , S,238A ]
Under S. 18 An Acknowledgement Of Liability Signed By The Party Against Whom The Right Is Claimed Gives Rise To A Fresh Period Of Limitation. Under Explanation (B) To The Section The Word ‘Signed’ Means Signed Either Personally Or By An Agent Duly Authorised. A Company Being A Corporate Body Acts Through Its Representatives, The Managing Director And The Board Of Directors. Under S. 210 Of The Companies Act It Is The Statutory Duty Of The Board Of Directors To Lay Before The Company At Every Annual General Body Meeting A Balance Sheet And A Profit And Loss Account For The Preceding Financial Year. S. 211 Directs That The Form And Contents Of The Balance Sheet Should Be As Set Out In Part I Of Schedule Vi. The Said Form Stipulates For The Details Of The Loans And Advances And Also Of Sundry Creditors. The Balance Sheet Should Be Approved By The Board Of Directors, And Thereafter Authenticated By The Manager Or The Secretary If Any And Not Less Than Two Directors One Of Whom Should Be The Managing Director. (See S. 215). The Act Also Provides For Supply Of Copies Of The Balance Sheet To The Members Before The Company In General Meeting. Going By The Above Provisions, A Balance Sheet Is The Statement Of Assets And Liabilities Of The Company As At The End Of The Financial Year, Approved By The Board Of Directors And Authenticated In The Manner Provided By Law. The Persons Who Authenticate The Document Do So In Their Capacity As Agents Of The Company. The Inclusion Of A Debt In A Balance Sheet Duly Prepared And Authenticated Would Amount To Admission Of A Liability And Therefore Satisfies The Requirements Of Law For A Valid Acknowledgement Under S. 18 Of The Limitation Act, Even Though The Directors By Authenticating The Balance Sheet Merely Discharge A Statutory Duty And May Not Have Intended To Make An Acknowledgement. (Ca. no 3228 Of 2020 Dt 15-4 – 2021
Asset reconstruction company (India) limited v. Bishal Jaiswal & Anr . www.itatonline.org (SC)
The Negotiable Instruments Act , 1881
S.138 : Dishonour Of Cheque For Insufficiency , Etc , Of Funds In The Account – Courts are inundated with complaints filed under Section 138 of the Negotiable Instruments Act, 1881. The cases are not being decided within a reasonable period and remain pending for a number of years. This gargantuan pendency of complaints filed under s. 138 of the Act has had an adverse effect in disposal of other criminal cases. Concerned with the large number of cases pending at various levels, a Larger Bench of the Supreme Court has examined the reasons for the delay in disposal of the cases. The Bench has issued important directions which will expedite the hearing and disposal of the cases[ S. 140, 141, 142]
Chapter XVII inserted in the Negotiable Instruments Act, containing Sections 138 to 142, came into force on 01.04.1989. Dishonour of cheques for insufficiency of funds was made punishable with imprisonment for a term of one year or with fine which may extend to twice the amount of the cheque as per Section 138. Section 139 dealt with the presumption in favour of the holder that the cheque received was for the discharge, in whole or in part, of any debt or other liability. The defence which may not be allowed in a prosecution under Section 138 of the Act is governed by Section 140. Section 141 pertains to offences by companies. Section 142 lays down conditions under which cognizance of offences may be taken under Section 138. Over the years, courts were inundated with complaints filed under Section 138 of the Act which could not be decided within a reasonable period and remained pending for a number of years. ( In Re: expeditious trial of cases under section 138 of n.i. act 1881. (cr.l) no.2 of 2020 dt. 16 -4 -2021
Suo Motu Writ Petition www.itatonline.org (SC)
CONSTITUTION OF INDIA
Art. 32 : Remedies for enforcement of rights conferred by this part – COVID -19 -Waiver of interest – Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters. In assessing the propriety of the decision of the Government the court cannot interfere even if a second view is possible from that of the government. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.
The present Petition had been preferred under Article 32 of the Constitution of India by the Small Scale Industrial Manufactures Association, Haryana for an appropriate writ, direction or order directing the Union of India and others to take effective and remedial measures to redress the financial strain faced by the industrial sector, particularly MSMEs due to the Corona Virus Pandemic.
The reliefs of the Petitioners has been summarised as under:
a complete waiver of interest or interest on interest during the moratorium period;
there shall be sector wise relief packages to be offered by the Union of India and/ or the RBI and/or the Lenders;
moratorium to be permitted for all accounts instead of being at the discretion of the Lenders;
extension of moratorium beyond 31.08.2020;
whatever the relief packages are offered by the Central Government and/or the RBI and/or the Lenders are not sufficient looking to the impact due to Covid 19 Pandemic and during the lockdown period due to Covid 19 Pandemic;
the last date for invocation of the resolution mechanism, namely, 31.12.2020 provided under the 6.8.2020 circular should be extended.
In catena of decisions and time and again this Court has considered the limited scope of judicial review in economic policy matters. It is further observed that in the case of a policy decision on economic matters, the courts should be very circumspect in conducting an enquiry or investigation and must be more reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the court is satisfied that there is illegality in the decision itself.It is further observed that it is not the function of the Court to amend and lay down some other directions. The function of the court is not to advise in matters relating to financial and economic policies for which bodies like RBI are fully competent. The court can only strike down some or entire directions issued by the RBI in case the court is satisfied that the directions were wholly unreasonable or in violative of any provisions of the Constitution or any statute. It would be hazardous and risky for the courts to tread an unknown path and should leave such task to the expert bodies. This Court has repeatedly said that matters of economic policy ought to be left to the government.
Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters. In assessing the propriety of the decision of the Government the court cannot interfere even if a second view is possible from that of the government. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.
Even the government also suffered due to lockdown, due to unprecedented covid 19 pandemic and also even lost the revenue in the form of GST. Still, the Government seems to have come out with various reliefs/packages. Government has its own financial constraints. Therefore, no writ of mandamus can be issued directing the Government/RBI to announce/ declare particular relief packages and/or to declare a particular policy.
That there shall not be any charge of interest on interest/compound interest/penal interest for the period during the moratorium from any of the borrowers and whatever the amount is recovered by way of interest on interest/ compound interest/ penal interest for the period during the moratorium, the same shall be refunded and to be adjusted/given credit in the next instalment of the loan account. (WP (C) 476 of 2020 dated March 23, 2021)
Small Scale Industrial Manufactures Association (Regd.) v. UOI and others (2021) 125 taxmann.com 336 (SC) / LL 2021 SC 175.www.itatonline.org