- Issuance of look out circular – Restriction on traveling abroad – Validity – communication of an order adverse only then it would come into effect:
LOC issued at instant of Bank against petitioner guarantor for default in payment of loan availed by company run by her husband and others. Copy of LOC never furnished to petitioner till same was filed in court . Petitioner not an accused in any criminal case
. Action of Bank in seeking issuance of LOC to prevent petitioner from leaving country on ground that she was a guarantor and that loan was more than Rs. 100 cores,
The Court observed that it is not in dispute that the copy of the LOC was never furnished to the petitioner till it was filed for the first time by respondent No.2 along with its written response in Court. It is not in dispute that the Office Memoranda providing the issuance of LOC do not contain any provision for supply of copy of the LOC to the subject of the LOC or supply of reasons for issuing of the LOC.
In State of West Bengal v. AB.K. Ltd (2015) 10 SCC 369 the Supreme Court held that there should be communication of an order adverse to a citizen and only then it would come into effect.
Without communicating the LOC to the petitioner, the respondents cannot seek to en- force it as it would not have any effect in law.
How the petitioner can be termed as an ‘accused’ as is mentioned in the LOC when admittedly no criminal case has been initiated in any court in the country against her. Merely looking at the quantum of loss caused to a banker, it cannot be presumed that there was a fraud committed by the borrower/ guarantor, moreso when no criminal case allegging fraud has even been filed against the borrower/ guarantor. Suspicion cannot take the place of proof.
Action of respondent authority in issuing LOC against petitioner in a mechanical way also arbitrary and violative of Art. 14. LOC set aside.
Poonam Paul vs Union Of India And Others, AIR 2022 PUNJAB AND HARYANA 131
- Succession female Hindu dying intestate-Right of inheritance Property – Cannot be waived on basis of statements made in previous suit or any sort of statements or admission made by co-owner especially when such relinquishment or disclaimer is not in writing. Hindu Succession Act 1956 S. 15(1)(2) – Transfer of Property Act 1882, S. 5
A disclaimer means any writing which disclaims, refuses, renounces, or disclaims any interest that would otherwise be taken by a beneficiary. Therefore, the statements made in the previous suit or any sort of statements or admission in the present suit as well, by no stretch of imagination be said to be a waiver/ relinquishment of the defendant’s right of inheritance or his co-ownership over the suit property left behind by his late mother of both the plaintiffs and defendant.
Surajit Majumder and others v. Majumder Manojit : AIR 2022 TRIPURA 28
- Torts Medical negligence – Claim for – compensation Claimant-
Mother seeking compensation for physical
pain and mental agony underwent by her for period of nine months after delivering child due to alleged negligence by respondent doctor . Claimant had to undergo a three stage surgery to ad dress tear of rectum . First stage surgery was colostomy, second stage surgery was CPT-repair and third stage surgery was co lostomy closure. This situation could have been averted by hospital by immediately shifting Petitioner to Coimbatore Medical College Hospital . Claimant was forced to spend towards surgery expenses, medicine expenses, travel expenses and also rental expenses . She also faced untold hardship in not being able to take care of her new born baby effectively for nine months Negligence on part of hospital for not taking proper care of claimant and for having failed to shift her. Claimant held entitled to compensation of Rs. 5 Lakhs.
S. Bhanupriya v. State of Tamilnadu and ORS. : AIR 2022 (NOC) 646 (MAD.)
- Insurance coverage for mental illnesses – Mental illnesses cannot be treated differently from physical illnesses – Insurance policies also cannot discriminate between these two type of illnesses
United Nations Convention on Rights of
People with Disabilities prohibited any form of discrimination in respect of mental illnesses or any other disabilities. The Convention recognises mental disabilities as a form of disability and enshrines the principle of non-discrimination towards such disabilities. The Convention not only recognises the need for non-discrimination qua disabilities in general, but also specifically refers to medical insurance, under Art.25. Insurance Regulatory and Development Authority of India (IRDAI) has a duty to ‘control’ and ‘regulate the terms and conditions of insurance policies. It also has the duty to protect the interest of policy holders and ensure that they are not disadvantaged in any manner. Thus, it is the IRDAI’s function to ensure that laws that are enacted for the benefit of policy holders are fully given effect to by the insurance companies. It is also the IRDAI’s admitted position that the provisions of Section 21(4) of the MHA, 2017 are liable to be given effect to. This is also confirmed th by IRDAI in its circular. Thus, the IRDAI’s stand is that insurance is liable to be provided for mental illnesses upon the enactment of the MHA, 2017. Insurance companies had to make provision for mediclaim insurance for treatment of mental illnesses on the same basis as treatment available for physical illnesses. The NICL and IRDAI have filed affidavits from which it is clear that the in sured amount has now been paid to the Petitioner. The crux of the above provisions, circulars and affidavits clearly is that mental illnesses cannot be treated differently from
physical illnesses. Insurance policies also cannot discriminate between these two types of illnesses. The reasons for the non- discriminatory provisions between mental and physical illnesses are not far to seek. While physical illnesses are manifested in the human body in some form, mental illnesses do not always have visible physical manifestations. However, mental illnesses can also be debilitating and destructive. The recent pandemic also highlights this beyond any doubt. Circumstances leading to patients requiring isolation, healthy persons being subjected to lock-downs, work from home conditions, loss of employment leading to lack of confidence for long durations have led to several mental problems. Such mental conditions need to be dealt with immediately. Availability of insurance for mental disabilities or conditions is, therefore, not only important but is an essential need. It is also made clear by Court that National Insurance Company Limited (NICL) and all insurance companies are liable to give effect to S.21(4) of the MHA, 2017 with effect from the date when it has come into force i.e., 29 May, 2018. Mental illnesses ought to be covered without any discrimination.
Shiksha Nischal V. National Insurance Company Limited and another: AIR 2022 (NOC) 692 (Del.)
- Corporate Guarantor – Liability
– Initiation of corporate insolvency resolution process – Insolvency and Bankruptcy Code 2016 sections 5(5A) & 7 :
Liability of guarantor is co-extensive with
that of principal borrower . Under Sec.7 of IBC, CIRP can be initiated against Corporate entity who has given guarantee to secure dues of non-corporate entity as financial debt accrues to corporate person, in respect of guarantee given by it, once borrower commits default. Since company extended corporate
guarantee for loans availed by borrowers, on failure of borrowers to repay loans, company became liable to repay loan . The court relied on decision in case of Laxmi Pat Surana v. Union Bank of India & anr (2021) 8 SC 481. It was open to the Financial Creditor to proceed against the guarantor without first suing the Principal Borrower. Initiation of CIRP against company held proper.
K. Paramasivam v. Karur Vysya Bank Ltd. and another : AIR 2022 SUPREME COURT 4127
- Consumer Protection – Unfair trade practice – Non delivery of new Car despite payment of full consideration and delivering a defective or used Car instead, is ‘unfair trade practice’ – Consumer Protection Act 1986 , S.2(1)(r) :
The appellant herein original complaint
booked a new car and as such paid the entire sale consideration. Therefore, when the complainant customer booked a new car and paid the sale consideration of a new car, the dealer was supposed to and/or bound to deliver the new car. Instead, the dealer delivered the used car which was used as “Demo Test Drive Vehicle”. Even as per the findings recorded by the National Commission the car which was delivered was a defective car. Even to deliver the defective car against the new car was also not permissible. Not to deliver the new car despite the full sale consideration paid and/or to deliver the defective car can be said to be unfair trade practice. It can even be dishonesty on part of dealer . It is against morality and ethics Dealer directed to deliver new car against previously deposited amount with costs of Rs.1,00,000/-.
Rajiv Shukla v. Gold Rush Sales and Services Ltd. and another. AIR 2022 SUPREME COURT 4184
- Recovery of dues – Small and Medium Enterprises Development Act (27 of 2006), Ss. 17, 18 :
Certain amount was payable on account of sale of plant and machinery As the respondent failed to make payment a reference to Facilitation Council for conciliation was made.
A conjoint reading of the provision make it amply clear that a reference to Facilitation Council for conciliation and subsequent arbitration if required, is not barred on account of the presence of an arbitration agreement providing for a different method of constituting Arbitral Tribunal. An dispute can be referred to Facilitation Council, mere provision for reference to arbitration in C1.38 of Agreement would not bar reference of such dispute to Facilitation Council. Once registered, status of petitioner would be that of registered enterprise and all provisions of the Act would apply with full force. Facilitation Council directed to consider claim of the petitioner and adjudicate same.
M/s. Dalapathi Constructions, A.P. v. State of Andhra Pradesh and others. : AIR 2022 ANDHRA PRADESH 150
- Marking of evidence – Admissibility of document Unstamped and unregistered document – Registration Act 1908 S.17.
Defendant relied on an unstamped and
unregistered release deed. The Trial Court impounded document and levied penalty and did not mark it as evidence. Even if a document is not registered, said document can be marked in evidence and admissibility is left open for consideration at appropriate stage, the Order rejecting marking of unregistered document as evidence was quashed. The Trial Court directed to mark said document subject to relevancy and admissibility.
Veerasangayya Gadigayya Mulimath and others v. Veerupakshayya Irayya Ganachari and others. AIR 2022 KARNATAKA 222
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