Temporary injunction — Legal right to claim protection.

Temporary injunction — Legal right to claim protection — When a party is not in juridical possession on the date of the Suit, he cannot be taken to have made out any prima facie case for protection of the possession claimed by him. (2010 (3) LJSOFT (URC) 31)

Public premises — Unauthorised construction — Burden of proof.

Public premises — Unauthorised construction — Right to begin — Burden of proof — Strict provision of Section 101 of Evidence Act cannot apply — Initial burden has to be initially discharged by the noticee alone. (2010 (3) LJSOFT (URC) 26)

Divorce — Wife leaving husband’s house.

Family Court proceedings — Divorce — Cruelty by wife — Wife leaving husband’s house to stay with parents without informing or taking him into confidence is a conduct against matrimonial duties and amounts to cruelty. (2010 (3) LJSOFT (URC) 17)

Family Court proceedings — Appearance of power of attorney holder.

Family Court proceedings — Parties cannot be allowed to be represented by a constituted attorney. (2010 (3) LJSOFT 15)

Divorced woman cannot use ex-husband’s name

Family Court proceedings — Divorced woman cannot use the husband’s name anywhere including in her bank account. (2010 (3) LJSOFT 15)

Leave and licence agreement containing arbitration clause.

Eviction proceedings — Leave and licence agreement containing arbitration clause — Exclusive jurisdiction of the Small Causes Court to try and decide the dispute specified in Section 41 is not ousted. (2010 (3) LJSOFT (FB) 49)

Dishonour of cheque — Cash loan above Rs.20000/-

Dishonour of cheque — Complainant allegedly advanced Rs.35,00,000/- by cash to the accused in violation of Section 269SS of I.T. Tax — Basic requirement of existence of a legally enforceable debt is absent _ Accused entitled to acquittal. (2010 (3) LJSOFT (URC) (GOA) 3)

Dishonour of cheque — Aurhority to file complaint — Subsequent ratification

Dishonour of cheque — Co-operative Society — Asst. Manager was not authorised to file a complaint — Subsequent ratification or authorisation by the resolution cannot cure the defect which was there at the initial stage of filing of the complaint. (2010 (3) LJSOFT (URC) (GOA) 19)

Dishonour of cheque — Liability of surety.

Dishonour of cheque — Liability of surety was contingent upon the principal debtor not paying and the complainant making a demand on the guarantors — No demand made on the guarantors prior to the presentation of cheque — There was no legally enforceable debt or liability on the date of presentation and dishonour of cheque. (2010 (3) LJSOFT 89)

Dishonour of cheque — Blank cheques — Security.

Dishonour of cheque — Blank cheques — Accused issued the cheque in question as security for loan before loan amount was disbursed — Cheque was not towards any existing debt or liability but as a collateral security for loan — Accused entitled to acquittal. (2010 (3) LJSOFT (URC) (AUR) 18)

Private Complaint _ Absence of a complaint to the police

1) Complaint made directly before a Magistrate _ Absence of a complaint to the police _ As a normal proposition of law, invocation of the provisions of Section 154 in its entirety should be treated as a condition precedent to invocation of the powers of the Court u/s 156(3) _ Complainants should have invoked the provisions of Section 154 before invoking the powers of the Court u/s. 156(3) _ However there can be exceptions where the facts and circumstances of the case justify directly approaching the Court by the complainant _ There can be cases where strict compliance to the provisions of Section 154(1) and (3) in their entirety may not be insisted upon by the Court _ There could be cases where the police fail to act instantly and the facts of the case show that there is possibility of the evidence of commission of the offence being destroyed and/or tampered with or an applicant could approach the Magistrate under Section 156(3) directly by way of an exception as the Legislature has vested wide discretion in the Magistrate.
2) Maintainability of complaint before a Magistrate praying only for an action u/s 156(3) without filing a complaint within the meaning of Section 2(d) _ Petition u/s 156(3) cannot be strictly construed as a complaint in terms of Section 2(d) _ Rule of pleadings is not strictly applicable to a petition or an application u/s 156(3) _ Absence of a specific or improperly worded prayer or lack of complete and definite details would not prove fatal to a petition u/s 156(3) in so far as it states facts constituting ingredients of a cognizable offence _ Such petition would be maintainable before the Magistrate.
Panchabhai Popotbhai Butani & ors. Vs. State of Maharashtra & ors. (FULL BENCH) 2010 (2) LJSOFT 39

Accident after duty hours _ Compensation.

Deceased met with an accident while on his way home from factory after duty hours _ Only those employees can seek compensation who died of accident arising out of and in course of their employment _ There has to be some nexus between the injuries suffered and work discharged by the deceased employee _ After an employee finishes his job and comes out of the place of employment then it cannot be said that he died during course of his employment _ Accident did not arise out of and in course of employment _ Claimant not entitled to compensation under the W.C. Act.
United India Insurance Co. Ltd. Vs. Nandkumari Ajaykumar Tiwari & ors. 2010 (2) LJSOFT (URC) 16

Nomination of brother for receiving the gratuity _ Legality of.

Nomination for receiving the gratuity _ Brother does not fall anywhere in the definition of family even in case of female employee _ Authorities under the Act are not expected to travel beyond the will of the Parliament _ Deceased employee could not have nominated her brother as her nominee for receiving the gratuity.
Smt. Shamabai wd/o Babu Ragade Vs. Sub-Area Manager, Western Coalfields Limited & ors.2010 (2) LJSOFT 132

Property of grandparents _ Rights of Illegitimate children

Property of grandparents _ Inheritance _ Rights of Illegitimate children _ Marriage of deceased and plaintiff No.4 was void because the first marriage of deceased was subsisting and his first wife was living at the time of the second marriage _ Plaintiffs Nos.1 to 3 who sought partition and share in the property are the illegitimate children of deceased and plaintiff no.4 _ They would be entitled to inherit the property of their parents only and no other relations _ 'Parent' does not mean grandparents _ Being illegitimate children they cannot be deemed to be related to the grandparents which necessarily requires that the children must be legitimate _ Plaintiffs Nos.1 to 3 cannot claim any right over the property of their grandparents.
Shahaji Kisan Asme & ors. Vs. Sitaram Kondi Asme since deceased by his heirs & ors. 2010 (2) LJSOFT 124

Recovery Certificate _ Applicability of Securitisation Act.

Bank resorted to the procedure under Cooperative Societies Act upto stage of certificate u/s 101 _ Bank could not have resorted to the provisions of section 14 of Securitisation Act for giving effect to the Recovery Certificate.
Smt. Nikhahat Parvin w/o Sekh Khalil Vs. Union of India through the Secretary, Ministry of Finance & ors. 2010 (2) LJSOFT (URC) 2

Dishonour of cheques _ Constitutional validity of Section 145.

Dishonour of cheques _ Affidavit in lieu of examination-in-chief _ Constitutional validity of Section 145 _ Cannot be said that simply because the complainant is permitted to give evidence by way of an affidavit the right of the accused to a fair trial is denied in any manner _ Cannot be said that the provisions contained in N.I. Act are in any way violate the fundamental rights of the accused in any manner.
Abdul Aziz Lokhandwala Vs. Nasir Ali & ors. 2010 (2) LJSOFT (URC) 26

Arbitration award _ Setting aside of _ Principle of severability.

Arbitration award _ Setting aside of _ Judicial discretion vested in the court in terms of the provisions of section 34 takes within its ambit power to set aside an award partly or wholly depending on the facts and circumstances of the given case _ Legislature has vested wide discretion in the court to set aside an award wholly or partly, of course, within the strict limitations stated in the said provisions _ Language of section 34(2) does not use any specific language which debars the court from exercising its discretion otherwise vested in it by virtue of its very creation to set aside the award wholly or partially as the case may be _ There would be an absolute duty on the court to invoke the principle of severability where the matter submitted to arbitration can clearly be separated from the matters not referred to arbitration and decision thereupon by the Arbitral Tribunal.
R.S. Jiwani Vs. Ircon International Ltd. (FULL BENCH) 2010 (2) LJSOFT (URC) 34

Anticipatory bail _ Interim protection.

Grant of anticipatory bail _ Court has power to grant interim protection when it comes to the conclusion that it is not possible to decide the case immediately and during such time appropriate interim orders can be passed _ Court not expected to direct the accused to remain present in court while exercising its power u/s 438(4) and, at the same time, not consider the application for interim relief _ Provisions of sections 438(1), (3) and (4), therefore have to be read together and they cannot be read in isolation _ Words 'interest of justice' used in section 438(4) means the interest not only of the prosecution but also of the accused of seeking fair and proper administration of criminal justice and giving a fair opportunity to the applicant-accused of securing substantive right which accrues in his favour by virtue of section 438 _ Learned Sessions Judge erred in directing the applicants to remain present in court without granting any interim protection.
Ashik Rameshchandra Shah & ors. Vs. State of Maharashtra 2010 (2) LJSOFT (URC) 45

Evidence recorded by one Magistrate and the judgment was delivered by another Magistrate

Wrongful restraint _ Assault _ Summary trial _ Evidence recorded by one Magistrate and the judgment was delivered by another Magistrate _ Such action was not a curable irregularity but an illegality _ New Magistrate had no option but to again record the evidence and complete the trial _ For the matter under the IPC which are tried summarily under chapter XXI it is not open for the Magistrate to chose whether the case is to be tried summarily or as a summons case _ Section 326(3) of Cr.P.C. would not be applicable to summary trials _ Conviction and sentence of the applicants set aside.
Pratibha Pandurang Salvi & ors. Vs. State of Maharashtra & anr. 2010 (2) LJSOFT 125

Divorce _ Denial to enter house _ Principle of 'Constructive Desertion'.

Divorce _ Desertion _ Denial to enter house _ Principle of 'Constructive Desertion'.
Respondent had moved to Valsad due to his transfer _ When he visited appellant at Surat on 12-1-1997 at premises which he had rented for her to live in, she threw him out of the very premises and further threatened him of dire consequences if he entered again _ Ejection of the other spouse from the home with the intention not to cohabit equally constitutes desertion _ Conduct appellant on the whole is evidence of animus deserdendi _ Since this incident, the parties have not cohabited till the date of filing of the divorce petition on 8-10-2003 and thereafter _ Said incident compelled the respondent to leave and stay away from the matrimonial home _ Divorce decree upheld u/s 13(1)(ib) against the appellant on the ground of desertion.
Mrs. X Vs. Mr. Y 2010 (2) LJSOFT (URC) 47

Motor accident _ Compensation

Motor accident _ Compensation _ Remarriage by widow _ As soon as the tort is committed, the person against whom such tort is committed becomes entitled to a compensation _ If on the date the tort was committed, the claimant was entitled to a certain compensation, any subsequent act cannot deprive him or her of the said entitlement _ Inspite of re-marriage Claimant No.1 would be entitled to claim compensation under the law and as per law.
New India Assurance Company Vs. Mona wd/o Girish @ Giridhari Chandak & ors. 2010 (2) LJSOFT 137

Dishonour of cheques

Dishonour of cheques _ Evidence for defence _ Issuance of witness summons to complainant _ Legislature has not specified and expressly mentioned in the Section 243 of Cr.P.C. that "any witness" in Sub Section (2) of Section 243 would not include the complainant _ Even there is nothing to indicate that words used in the Section 254 "any witness" does not include "complainant" _ On plain reading of section 254, it cannot be said that the word "any witness" used in Sub-Section (2) of Section 254 does not include complainant _ Even adversary including the complainant can be examined as witness.
Smt. Sitabai w/o Prabhakar Paunikar Vs. Vilas s/o Vishnu Saranjame 2010 (2) LJSOFT (URC) 58

Atrocities Act

A woman who is born into a scheduled caste or a scheduled tribe, on marriage with a person belonging to a forward caste, is not automatically transplanted into the caste of husband by virtue of her marriage and, therefore, she cannot be said to belong to her husband's caste. If she is abused in the name of her caste by a member of public or by her husband or his relatives, an offence under the provisions of Atrocities Act can be registered and investigated against such person/s.
Rajendra Shrivastava Vs. State of Maharashtra (FULL BENCH) 2010 (2) LJSOFT (URC) 8

Dishonour of cheque

Dishonour of cheque _ Points for determination ought to have involved at least five ingredients which were laid down by the Apex Court in the case of Kusum Ingots case _ Trial Court is expected to address itself on all the said ingredients before it can dismiss the complaint or acquit the accused or if it holds the accused guilty u/s 138 _ All these points were not framed while framing questions for determination nor there was a detailed discussion in respect of those ingredients _ Even the rulings were simply listed by the trial Court without going into the ratio decidendi of the same _ Impugned judgment and order of acquittal is set aside and matter remanded back.
Adarsh Gramin Sahakari Pat Sanstha Maryadit Vs. Dattu Ramdasji Paithankar 2010 (2) LJSOFT (URC) 20

Dishonour of cheques _ Complaint by legal heirs.

Dishonour of cheques _ Death of payee _ Complaint by legal heirs _ Only a person who is authorized by succession certificate, letters of administration or probate granted by the court, is entitled to call upon the drawer to pay the amount of dishonour cheque as he would be then really entering into the shoes of the deceased payee.
Vishnupant s/o Chaburao Khaire Vs. Kailash s/o Balbhir Madan 2010 (2) LJSOFT (URC) 7

Dishonour of cheques _ Delay in filing complaint _ Condonation of delay.

Cheque dishonoured on 30.12.2005 _ Notice was issued on 19.01.2006 by registered post acknowledgment due (RPAD) and copy was also issued Under Postal Certificate (UPC) _ Non-receipt of the acknowledgment by the complainant till 20.2.2006 _ On enquiry the Postal Department vide its letter dated 14.03.2006 informed that the said notice was received by the accused on 28.01.2006 _ Complaint filed on 22.03.2006 was beyond the time and period of limitation hence an application for condonation of delay was filed _ Complainant could not make out exact date of receipt of notice by the accused due to mistake of Postal Department _ There was no deliberate attempt or malafide intention to delay the filing of complaint _ Impugned order condoning the delay of eight days in filing the complaint not liable to be interfered with.
Lodba Yadeo Bhakare Vs. Sanjay Bhurmal Dodwade 2010 (2) LJSOFT (URC) 46