(I): THE LIMITATION ACT, 1963: A) Section 5 of Limitation Act: The Court or Tribunal can condone delay in filing the petition or application on “sufficient grounds” being shown by the Applicant. The Hon’ble Supreme Court in N.Balakrishnan Vs. M. Krishnamurthy 2008(228) ELT 162(SC) held that the Under Section 5 of the Limitation Act , for condonation of delay , the length of the delay is immaterial whereas the explanation or the reason for such delay is of importance.
The Hon’ble Supreme court in Manoharan Vs. Sivarajan and Ors. MANU/SC/1192/2013 : (2014)4SCC163 held that the Courts while deciding the application under Section 5 of the limitation act should not go the merits of the case but the grounds set out in the application seeking condonation of delay to be weighed and judged.
B) Section 14 of Limitation Act: Where the party has been pursuing the matter before a wrong court diligently and in good faith, the period undergone in the trial before the wrong court, is liable to be condoned by the competent court before whom the petition has been filed subsequently. The Hon’ble Supreme Court in the case of Union of India Vs. West Coast paper Mills Ltd MANU/SC/0191/2004 has observed as under:- “However, Section 14 of the Limitation Act is wide in application, in as much as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to the cases where the prior proceedings have failed on account of other causes of the like nature.”
The expression "other cause of like nature" came up for the consideration of this Court in Roshanlal Kuthalia and Ors. v. MANU/SC/0015/1974: R.B. Mohan Singh Oberai [1975]2SCR491 and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional. The court must adopt liberal approach so as to advance the cause of justice.
C): Section 18 of Limitation Act: C): Section 18 of Limitation Act:Where before the expiration of the prescribed period of for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgement is to signed.
The Supreme Court in FCI Vs. Assam State MANU/SC/0917/2004 has observed as under:- “The statement providing foundation for a plea of acknowledgement must relate to a present subsisting liability, though the exact nature or the specific character of the said liability may not be indicated in words. The words used in the acknowledgement must indicate the existence of jural relationship between the parties such as that of debtor and creditor. The intention to attempt such jural relationship must be apparent. However, such intention can be inferred by implication from the nature of the admission and need not be expressed in words.”
Where no period of limitation is prescribed: The Full Bench of Rajasthan High Court in Chiman Lal v. State of Rajasthan and Ors. MANU/RH/0180/2000 : 2000 (2) RLR 39, had held “that when no period of limitation is provided then it has to be exercised within a reasonable time and that will depend upon the facts and circumstances of each case like: when there is a fraud played by the parties;
The supplementary bill however has been raised not from April, 2001 but from July, 2002, and therefore, the defendant is rightly entitled to raise the bill from July, 2002. The supplementary bill however has been raised not from April, 2001 but from July, 2002, and therefore, the defendant is rightly entitled to raise the bill from July, 2002.
INDIAN CONTRACT ACT, 1872 INDIAN CONTRACT ACT, 1872 Section 10: All agreements are contracts if:-a) Made by free consent of parties;b)Made by the parties competent to contract;c) For lawful consideration;d) For a lawful object;
Section 15 of Indian Contract Act, 1872 : CoercionThe definition of Coercion is reproduced as under: “the committing or threatening to commit any act forbidden by the Indian Penal Code, or unlawful detaining or threatening to detain, any property to the prejudice of any person whatever with the intention of causing any person to enter into an agreement”.
The distribution licensee in a position to dominate the will of the wind energy generators a result of exercise of undue influence or coercion. Most of the wind energy generators have been compelled or coerced due to undue influence to enter into Power Purchase Agreement or Energy Purchase Agreement and sign the same without being in the position of exercising free consent to the same. Some have done the same under protest or some have been constrained to do that act because otherwise they were bound to suffer on financial as well as viable aspect of their business of wind power generation. The distribution licensee in a position to dominate the will of the wind energy generators a result of exercise of undue influence or coercion. Most of the wind energy generators have been compelled or coerced due to undue influence to enter into Power Purchase Agreement or Energy Purchase Agreement and sign the same without being in the position of exercising free consent to the same. Some have done the same under protest or some have been constrained to do that act because otherwise they were bound to suffer on financial as well as viable aspect of their business of wind power generation.
The judgment shall apply to all the wind energy generators or wind power projects of the State, irrespective of their not having filed any appeal before this Appellate Tribunal, if they are squarely covered by this judgment. Indian Wind Power Association (Maharashtra State Council) The judgment shall apply to all the wind energy generators or wind power projects of the State, irrespective of their not having filed any appeal before this Appellate Tribunal, if they are squarely covered by this judgment. Indian Wind Power Association (Maharashtra State Council) Vs. Maharashtra Electricity Regulatory Commission and Ors. MANU/ET/0020/2016.
The Delhi High Court in S N Mathur Vs. Pragy Aggarwal MANU/DE/0321/2016: has observed that Section 10 of the Indian Contract Act states that all agreements are contracts if they are entered into with the (i) free consent of the parties; (ii) who are competent to contract; (iii) for a lawful consideration, and (iv) are not declared by law to be void. The aforesaid aspects which make an agreement a final contract with respect to capacity to contract, lack of coercion etc to enter into the contract, consideration being lawful and otherwise not being declared void are not issues in the present case and one is only concerned that whether at all there exists an agreement to sell i.e. an agreement as per Section 2(h) of the Indian Contract Act. The Delhi High Court in S N Mathur Vs. Pragy Aggarwal MANU/DE/0321/2016: has observed that Section 10 of the Indian Contract Act states that all agreements are contracts if they are entered into with the (i) free consent of the parties; (ii) who are competent to contract; (iii) for a lawful consideration, and (iv) are not declared by law to be void. The aforesaid aspects which make an agreement a final contract with respect to capacity to contract, lack of coercion etc to enter into the contract, consideration being lawful and otherwise not being declared void are not issues in the present case and one is only concerned that whether at all there exists an agreement to sell i.e. an agreement as per Section 2(h) of the Indian Contract Act.
Section 16 of Indian Contract Act, 1872 : Undue Influence Section 16 of Indian Contract Act, 1872 : Undue Influence Under Section 16 of the Indian Contract Act, 1872, a contract is said to be produced by undue influence “where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other”. The Settlement Deed cannot be cancelled unless either one of the elements of fraud, misrepresentation, undue influence or coercion is present.
Such revocation is also possible only through a Civil Court. In S. Ganesan v. Bharathirajan MANU/TN/1828/2009 : 2009 (5) CTC 558), relying upon the Judgment of the Apex Court reported in K. Balakrishnan v. K. Kamalam MANU/SC/1071/2003 : 2004 (1) CTC 145 (SC)), this Court has held that the Settlement Deed would not be invalidated on the ground that possession was not handed over to the donee or because donee failed to mutate the records. The Judgment is squarely applicable to the present facts of the case. S. Palani and Ors. Vs. S. Bharathi Dasan and Ors. MANU/TN/0057/2016. Such revocation is also possible only through a Civil Court. In S. Ganesan v. Bharathirajan MANU/TN/1828/2009 : 2009 (5) CTC 558), relying upon the Judgment of the Apex Court reported in K. Balakrishnan v. K. Kamalam MANU/SC/1071/2003 : 2004 (1) CTC 145 (SC)), this Court has held that the Settlement Deed would not be invalidated on the ground that possession was not handed over to the donee or because donee failed to mutate the records. The Judgment is squarely applicable to the present facts of the case. S. Palani and Ors. Vs. S. Bharathi Dasan and Ors. MANU/TN/0057/2016.
Section 17 of Contract Act ,1872: Fraud Defined “Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-
i) The suggestion of a fact, of that which is not true; i) The suggestion of a fact, of that which is not true;ii) The active concealment of a fact by one having Knowledge or belief of the fact;iii) a promise made without any intention of performing it;iv) any other act fitted to deceive;v) any such act or omission as the law specially declares to be fraud.
SPECIES OF FRAUD : HOW SUPREME COURT DEFINED SPECIES OF FRAUD : HOW SUPREME COURT DEFINEDa) The Hon’ble Supreme Court in the case of Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. (MANU/SC/0495/2005 : JT 2005 (7) SC 530) dealt with effect of fraud. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false'.
b). Suppression of a material document would also amount to a fraud on the court. ( Gowrishankar v. Joshi Amba Shankar Family Trust (MANU/SC/0555/1996 : 1996 (3) SCC 310).
(c) The Supreme Court in Gopal Krishnaji Ketkar Vs Mahomed Haji Latif AIR 1968 SC 1413 has held as under: (c) The Supreme Court in Gopal Krishnaji Ketkar Vs Mahomed Haji Latif AIR 1968 SC 1413 has held as under: ".... We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue.
It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof." It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof."
(d). The Supreme Court in the case S.P. Chengalvaraya Naidu v. Jagannath 1998 Vol.71 Delhi law Times Page 1 has held as under: (d). The Supreme Court in the case S.P. Chengalvaraya Naidu v. Jagannath 1998 Vol.71 Delhi law Times Page 1 has held as under:" ..Non-production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the Court. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vitaldocument in 'order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the opposite party."
(e) The Supreme Court in the case of Satish Khosla Vs. M/s. Eli Lilly Ranbaxy Ltd. 1998 Vol.71 Delhi Law Times page 1, has held as under: (e) The Supreme Court in the case of Satish Khosla Vs. M/s. Eli Lilly Ranbaxy Ltd. 1998 Vol.71 Delhi Law Times page 1, has held as under: "..In our view, the arguments are wholly fallacious. A party must come to the Court with clean hands and must disclose all the relevant facts which may result in appreciating the rival contentions of the parties. In our view, a litigant, who approaches the Court, must produce all the documents which are relevant to the litigation and he must also disclose to the Court about the pendency of any earlier litigation between the parties and the result thereof."
(f) The Supreme Court in Krishan Lal Kacker v. Ram Chander 139 2005 Vol.139 Punjab Law Reporter 269, has held as under: (f) The Supreme Court in Krishan Lal Kacker v. Ram Chander 139 2005 Vol.139 Punjab Law Reporter 269, has held as under: "...A litigant who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document or information in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the other party."
SECTION 25 of Indian Contract Act, 1872: SECTION 25 of Indian Contract Act, 1872:An Agreement without consideration is void unlessAgreement is made out of natural love and affection;The Supreme Court in the case of John Tinson & Co. P. Ltd. v. Surjeet Malhan MANU/SC/0331/1997 has held there should be consensus ad idem for a concluded contract and it is seen that Section 25(1) of the Contract Act contemplates that when a transfer is without consideration, it is a void contract. It is an admitted position that there is no concluded contract between Smt. Surjeet and Bhagat. The acquiescence did not amount to consent unless Smt. Surjeet Malhan expressly authorised her husband to transfer her shares.
The transfer as contemplated in this case is only for a sum of Re. 1/-. As a consequence, in the eye of law, there is no consideration and, therefore, the transfer agreement is void. The question then is whether the wife had consented to the transfer ? It is an admitted position that she had not given authority by any letter in writing otherwise to her husband to transfer her shares in favour of Mr. Bhagat.
The Supreme Court in Manna Lal Khetan Vs. Kedar Nath Kheta MANU/SC/0060/1976 has observed as under:- The Supreme Court in Manna Lal Khetan Vs. Kedar Nath Kheta MANU/SC/0060/1976 has observed as under:- It is well established that a contract which involves in its fulfillment the doing of an act prohibited by statute is void. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. What is done in contravention of the provisions of an Act of the Legislature cannot be made the subject of an action. (The case deals with transfer of shares which stood attached under orders of Court – SC held that Shares under attachment cannot be transferred ).
SALES OF GOODS ACT, 1930: SALES OF GOODS ACT, 1930:Section 45: The seller of goods is deemed to be an unpaid seller within the meaning of this Act (a) When the whole of the price has not been paid or tendered. The Rajasthan High Court in the case of Samnath India Exports Vs. Shanti Lal Jain MANU./RH/1688/2013 has observed as under:The Sale of Goods Act, 1930 covers all issues relating to sale of goods. Section 55(1) provides that "where under a contract of sale the property in the goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may sue him for the price of the goods."
Section 24 of the Act provides that even when goods are delivered to the buyer on approval, the property therein passes to the buyer inter alia when after delivery of the goods, the goods are retained for a reasonable period of time without being rejected or returned. Section 42 of the Act provides that the buyer is deemed to have accepted the goods when the goods have been delivered to him and he does any act in relation thereto which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. Section 24 of the Act provides that even when goods are delivered to the buyer on approval, the property therein passes to the buyer inter alia when after delivery of the goods, the goods are retained for a reasonable period of time without being rejected or returned. Section 42 of the Act provides that the buyer is deemed to have accepted the goods when the goods have been delivered to him and he does any act in relation thereto which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.
A person is entitled to file a Suit for Recovery of Money towards recovery of sale consideration. However, the Seller has not right to file a petition for rectification of Register of Member under Section 58 and 59 of the Companies Act, 2013. A person is entitled to file a Suit for Recovery of Money towards recovery of sale consideration. However, the Seller has not right to file a petition for rectification of Register of Member under Section 58 and 59 of the Companies Act, 2013.
Section 101 - Indian Evidence Act, 1872: Section 101 - Indian Evidence Act, 1872:Burden of Proof: Whosoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. The Delhi High Court in the case of Anjum Nath Vs. British Airways MANU/DE/4242/2015, while interpreting Section 101 and 102 of Indian Evidence Act, has observed as under:-In my opinion, it was for the plaintiff to prove her case. Under section 101 of the Indian Evidence Act the burden of proof is on the plaintiff to prove the facts which would entitle her to a legal right. Reference in the above
context may be had to the judgment of the Supreme Court in Anil Rishi v. Gurbaksh Singh, MANU/SC/8133/2006 : (2006) 5 SCC 558 paragraphs 8 to 10 of which read as follows:-- context may be had to the judgment of the Supreme Court in Anil Rishi v. Gurbaksh Singh, MANU/SC/8133/2006 : (2006) 5 SCC 558 paragraphs 8 to 10 of which read as follows:-- In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
Section 106 of Indian Evidence Act, 1872: Section 106 of Indian Evidence Act, 1872: Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. ONUS TO PROVE Section 106: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. (a)………………… (b)A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
(II)How Power Of Attorney to be Executed: Section 85 of Indian Evidence Act, 1872: (II)How Power Of Attorney to be Executed: Section 85 of Indian Evidence Act, 1872: If the Power of Attorney is not executed in accordance with law, then no power has been validly conferred on the Attorney and any petition is liable to be dismissed on this short ground alone; REQUISITES OF VALID POWER OF ATTORNEY.a): Board Resolution in a validly convened Board Meeting Affixation of Common Sealb): The date of affixation of Common Seal and Date of attestation by Notary Public should match;C): Affixation of Common Seal;
d): The Power of Attorney must be on Stamp Paper of requisite value as per rules of State Stamp Act; d): The Power of Attorney must be on Stamp Paper of requisite value as per rules of State Stamp Act;e): There must be notorial stamp affixed during attestation. i) United Bank of India v. Naresh Kumar & Others, AIR 1997 SC 3; ii): Electric Construction & Equipment Co. Ltd. v. Jagjit Works, 1984 RLR 549 DHC. iii): Syndicate Bank v. M/s. S.A. Trading Corporation & Others, 1990 (3) Delhi Lawyer 356 DHC.
CODE OF CIVIL PROCEDURE, 1908: CODE OF CIVIL PROCEDURE, 1908:Section 151 of CPC: Inherent Powers of Court = Equal to Regulation 44 of CLB Regulation.The Hon’ble Supreme Court in the case of Vinod Seth Vs. Devinder Bajaj MANU/SC/0424/2010 has observed as under:- “ Section 151 is intended to apply where the Code does not cover any particular procedural aspect, and interests of justice require the exercise of power to cover a particular situation. It is a procedural provision saving the inherent power of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the
process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code.” process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code.”
In the very recent verdict of K.K. Velusamy v. N. Palaanisamy, (2011) 11 SCC 275 the Hon’ble Supreme Court upheld that Section 151 of the Code recognizes the discretionary power inherited by the every Court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’.
Whatever limitations are imposed by construction of the provisions of Sec. 151 of the Code, they do not control the undoubted power of this Court conferred u/s 151 of the Code to make a suitable order to prevent the abuse of the process of the Court.Ram Chand & Sons Sugar Mills Ltd. v. Kanhayalal Bhargava. MANU/SC/0263/1966.
Admission under Indian Evidence Act, 1872: Admission under Indian Evidence Act, 1872:Even admission can be withdrawn: MANU/UP/0746/2004, MANU/SC/1017/1995 (para 4), MANU/PH/0715/2005 (para 11) and MANU/SC/0019/1983 (para 3).
The Supreme Court in Ganesh Trading Co. v. Moji Ram MANU/SC/0018/1978 : AIR 1978 SC 484, held as under The Supreme Court in Ganesh Trading Co. v. Moji Ram MANU/SC/0018/1978 : AIR 1978 SC 484, held as under “Even very defective pleadings may be permitted to be cured so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional court fee, which may be payable or of costs of the other side are complied with.
b): “It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should ordinary refuse prayers for amendment of pleading.” b): “It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should ordinary refuse prayers for amendment of pleading.”
HOW PETITION TO BE DRAFTED: ORDER 6 RULE 1 & 2 CPC. HOW PETITION TO BE DRAFTED: ORDER 6 RULE 1 & 2 CPC.Order 6 Rule 2: Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be, but no evidence by which they are to be proved. “In the absence of any concise statement of material facts, the mere raising of a plea of tenancy is not enough. D H Deshpande Vs. Janardhan Kashinath AIR 1999 SC 1464.
AMENDMENTS OF PLEADINGS – ORDER 6 RULE 17 CPCThe power to grant amendment of pleadings is intended to serve the ends of justice and is not governed by any narrow or technical limitations. Reliance was placed on the case law reported at MANU/SC/0016/1969 : AIR 1969 SC 1267.
The Supreme Court in Ganesh Trading Co. v. Moji Ram MANU/SC/0018/1978 : AIR 1978 SC 484, while dealing with the amendments of pleadings, has observed as under : “Even very defective pleadings may be permitted to be cured so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional court fee, which may be payable or of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should ordinary refuse prayers for amendment of pleading.”
Amendment barred by law – Still Allowable. Amendment barred by law – Still Allowable.In Ragu Thilak D. John v. S. Rayappan And Others - MANU/SC/0057/2001 : (2001) 2 SCC 472, the Supreme Court held that if the relief sought by way of amendment would be barred by the law of limitation, yet the amendment would still be allowable and the disputed matter made the subject-matter of an issue. In Pankaja And Another v. Yellappa (Dead) By LRs And Others - MANU/SC/0590/2004 : (2004) 6 SCC 415, the Supreme Court held that even where the relief sought to be
added by amendment is allegedly barred by limitation, there is no absolute rule that amendment in such a case should not be allowed and that an amendment subserving the ultimate cause of justice and avoiding further litigation should be allowed. added by amendment is allegedly barred by limitation, there is no absolute rule that amendment in such a case should not be allowed and that an amendment subserving the ultimate cause of justice and avoiding further litigation should be allowed.
HOW TO DRAFT WRITTEN STATEMENT/ REPLY HOW TO DRAFT WRITTEN STATEMENT/ REPLYORDER 8 RULE 5 CPC–HOW TO DRAFT WRITTEN STATEMENT/REPLY. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendants, shall be taken to be admitted. DENIAL TO BE SPECIFIC: It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Sulekha v. Ashok Kumar. MANU/UP/0389/2016.
The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact; he must not do so evasively, but answer the point of substance. If his denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact; he must not do so evasively, but answer the point of substance. If his denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. Badat & Co. v. East India Trading Co., AIR 1964 SC 538
ORDER 29 RULE 1 CPC – Authorisation to file legal proceedings before Court/tribunal ORDER 29 RULE 1 CPC – Authorisation to file legal proceedings before Court/tribunal The Supreme Court in the case of State Bank of Travancore Vs. Kingston Computers (P) Ltd. MANU/SC/0280/2011.Because the Respondent had not produced any evidence to prove that Shri Ashok K. Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the Appellant and authorised Shri Ashok K. Shukla to do so. The letter of authority issued by Shri Raj K. Shukla, who described
himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passedby the Board of Directors delegating its powers to Shri Raj K. Shukla to authorise another person to file suit on behalf of the company. The Supreme Court in the case of Subh Shanti Services Vs. Manjula S Aggarwal MANU/SC/0387/2005 = AIR 2005 SC 2506.
In the matter of company affairs, Directors act as a body and collectively as a Board. Any Director acting individually has no power to act on behalf of the company in respect of any matter except to the extent to which any power or powers of the Board have been delegated to him by the Board within the limit permitted by the Companies Act or any other law. In the matter of company affairs, Directors act as a body and collectively as a Board. Any Director acting individually has no power to act on behalf of the company in respect of any matter except to the extent to which any power or powers of the Board have been delegated to him by the Board within the limit permitted by the Companies Act or any other law. .
The position of the Chairman of the Board of Directors is not substantially different from an individual Director. Under the Companies Act, Chairman of the company does not have any special or extraordinary rights to be exercised by him without being authorized by the Board of Directors. The Board of Directors of course have an authority to delegate the power or authority to act for and on behalf of the company to the Chairman of the Board of Directors. The position of the Chairman of the Board of Directors is not substantially different from an individual Director. Under the Companies Act, Chairman of the company does not have any special or extraordinary rights to be exercised by him without being authorized by the Board of Directors. The Board of Directors of course have an authority to delegate the power or authority to act for and on behalf of the company to the Chairman of the Board of Directors.
ORDER 19 RULE 1 AFFIDAVIT –How Affidavit in support of petition to be drawn. ORDER 19 RULE 1 AFFIDAVIT –How Affidavit in support of petition to be drawn.Unless the affidavits are properly verified and are in conformity with the rule, they will be rejected by the Court MANU/BH/0026/1962 : : MANU/WB/0079/1968 MANU/MH/0004/1964 :Where the matter deposed to is not based on personal knowledge, but on information, the source of information should be clearly disclosed MANU/SC/0016/1952 : 1952CriLJ1269 : MANU/WB/0143/1956 : AIR1956Cal496 .
THE PROVISIONS OF CPC ARE APPLICABLE TO CLB/NCLT THE PROVISIONS OF CPC ARE APPLICABLE TO CLB/NCLT The court further held that provisions of CPC are applicable to the proceedings pending before CLB. Krithika Mullengada Vs. Wipro Ltd . 2012 (108) ClA 28 Kar DB.
IMPORTANT PRINCIPLE LAW IMPORTANT PRINCIPLE LAW AND PROCEDUREThe provisions of new law shall not apply in case of action has taken place when the old law was applicable: In Katikara Chintamani Dora v. Guntreddi Annamanaidu MANU/SC/0336/1973 : (1974) 1 SCC 567, this Court held: It is well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (Maxwell on Interpretation, 12th Edn. 220). That is to say, "in the absence of anything in the
Act, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed". Act, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed".In Govind Das v. ITO MANU/SC/0248/1975 : (1976) 1 SCC 906, Supreme Court has held as under:- Now it is a well settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so
as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. All statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. All statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment.
EVERY SUBSTANTIAL LAW IS PROSPECTIVE. EVERY SUBSTANTIAL LAW IS PROSPECTIVE.The Supreme Court in the case of Zile Singh v. State of Haryana MANU/SC/0876/2004 : (2004) 8 SCC 1, examined the various authorities on statutory interpretation and concluded as under:-It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only.
Statutory returns have no evidential value unless supported by documents/evidence: Statutory returns have no evidential value unless supported by documents/evidence:Srichand Bajaj Vs. Bajaj Promoters Ltd 2006(75) CLA 303 and also Harish K Berry Vs. S Berry Automotive Udyog (P) Ltd 2005 (64) CLA 144.A mere entry in the Register of Members does not enable a member to claim membership: 2001 (44) CLA 36.
If the party has written number of letters and other party has not replied back, the party not replying to the letters, forfeits his rights to contend otherwise. M/s Arosan Enterprises Vs. Union of India 1999 (VIII) SLT 104 and Delhi Jal Board Vs. Kaveri Infrastructure (P) Ltd 2014 (206) DLT 136.
A party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. A party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.
A person cannot convey better title than what he himself has. A person cannot convey better title than what he himself has. A general proposition of law is that no person can confer on another a better title than he himself has. [Reference in this regard may be made to the decisions of this Court in Mahabir Gope v. Harbans NArain Singh MANU/SC/0059/1952 : 1952 SCR 775; Asaram v. Mst. Ram Kali 1958 SCR 986 and All India Film Corporation Ltd. v. Raja Gyan Nath MANU/SC/0403/1969 : (1969) 3 SCC 79.]
The figures shown in Income Tax Return is admission: The figures shown in Income Tax Return is admission: The Supreme Court in Uttam Singh Dugal & Co. Ltd. v. Union Bank of India MANU/SC/0485/2000 : [2000] 39 CLA l/[2000] 102 Comp Cas 118/[2000] 7 SCC 120, observed that the Income-Tax Returns showing transfer of shares of the Petitioners is an admission, thereby by virtue, of the said admission, the petition is to be rejected on admissions as per law laid down under Order 12, Rule 6 of the Code of Civil Procedure.
Waiver and Acquiscence: Waiver and Acquiscence:The principles of acquiescence holds that it is unjust to give a claimant the remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver. U.P. Jal Nigam v. Jaswant Singh MANU/SC/5073/2006 : (2006) 11 SCC 464.
Person signing documents cannot deny knowledge. Person signing documents cannot deny knowledge.When a person signs a documents, presumption is that he has read the documents properly and understood it and only then affixed his signatures thereon, unless there is a proof of force or fraud. Such presumption is much stronger in case of businessmen. If there is no allegation of force or fraud, such contention cannot be accepted. Grasim Industries Ltd Vs. Agarwal Steel 2010(1) SCC 83.
Fraud vitiates all solemn acts: Fraud vitiates all solemn acts:It is now well settled that fraud vitiated all solemn act. Any order or decree obtained by practicing fraud is a nullity. (a) Ram Chandra Singh v. Savitri Devi and Ors. MANU/SC/0802/2003 : (2003)8SCC319 followed in (b) Vice Chairman, Kendriya Vidyalaya Sangathan and Anr. v. Girdhari Lal Yadav ; (c) State of A.P. and Anr. v. T. Suryachandra Rao MANU/SC/0431/2005 : AIR2005SC3110.
Maintainability of petition: Maintainability of petition:The Supreme Court has held that when the issue of maintainability is pending, no issue on merit should be considered and hence, the maintainability of the application should be first decided before considering the reliefs sought for in the application. In T.K. Lathika v. Seth Karsandas Jamnadas MANU/SC/0535/1999.
Plea taken for the first time in replication: Plea taken for the first time in replication:While canvassing the proposition that any plea taken by the plaintiff in the replication to which the defendants have no opportunity to reply inconsistent with the original pleading should be refused to be taken on record and if taken shall be liable to be struck off and taken off the file, learned counsel has relied upon Anant Constructions Pvt. Ltd. v. Ram Niwas MANU/DE/0407/1994 : 1994IVAD(Delhi)185 wherein it was observed that a plea which is foundation of the plaintiff's case or essentially a part of cause of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication.
Vexatious, frivolous and mischievous litigation: Vexatious, frivolous and mischievous litigation:The Supreme Court in the case of Dalip singh Vs. State of UP 2010(2) SCC 114 has held as under:- In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice, or two touches the pure fountain of justice with tained hands, is not entitle dto any relief, interim or final.
In cash transaction, the party who alleges, there is heavy burden on him about payment in cash.Mahesh Kumar Wadhwa Vs. Bimal Luthra MANU/DE/1830/2008 : 2009 (107) DRJ 271 holding, though in the context of grant of leave to defend under Order 37 of the CPC, that when a party enters into a transaction involving large sums of money in cash through non bank channels those transactions will always remain open to challenge and the burden heavily lies on the party to prove that he had entered into the said transaction;
LIFTING OF CORORATE VEIL LIFTING OF CORORATE VEILIt is very seen very soon that the Government Authorities for realization of government dues or even parties for the purpose of recovery of their dues from the government, initiate proceedings against the working directors of the company – though the judgment and decree is only against the company and not against the Director in his personal capacity.State of UP Vs. Renusagar MANU/SC/0505/1988New Horizon Ltd Vs. UOI MANU/SC/0564/1995.LIC VS. ESCORTS MANU/SC/0015/1985.
Juggilal Kamlapat Vs. CIT MANU/SC/0091/1968. Juggilal Kamlapat Vs. CIT MANU/SC/0091/1968.Bajrang Pd Jalan Vs. Mahabir Pd Jalan Vs. 1999 AIR Cal 155JB Exports Vs. BSES Rajdhani Power Ltd MANU/DE/0880/2006Singer India Limitd Vs. CM Chadha MANU/SC/0626/2004= AIR 2004 SC 4368Vipul Gupts Vs. Trident Projects Ltd MANU/DE/0082/2009= 2009(157) DLT 1.
If the company is represented through Directors or in other words, the petition or reply has been filed through directors of the company, no execution petition can be filed against such Directors for relisation of the amount under the money decree passed against the company of which the person is director because he is signing the petition or written statement in the capacity of a director and not in his personal capacity. Dr Rakha Kamat Vs. Nath steel Equipments 2010 (4) Current Civil Cases 34. If the company is represented through Directors or in other words, the petition or reply has been filed through directors of the company, no execution petition can be filed against such Directors for relisation of the amount under the money decree passed against the company of which the person is director because he is signing the petition or written statement in the capacity of a director and not in his personal capacity. Dr Rakha Kamat Vs. Nath steel Equipments 2010 (4) Current Civil Cases 34.
NO INTERIM RELIEF, IF NO CHALLENGE IN MAIN PRAYER. NO INTERIM RELIEF, IF NO CHALLENGE IN MAIN PRAYER. It is well settled that no Order can be passed on any interlocutory application, if there is no prayer in the Main Prayer/Final Prayer in the Petition – no relief can be granted at interlocutory stage which are beyond scope of suit – prayers made for interlocutory application in present case outside scope of suit – same cannot be entertained at such stage – no Order can be passed on such application except Order to expedite suit. MANU/WB/0470/2002. MANU/SC/0086/1999.
Where the company law Board by impugned order had restrained the appellant and its Board of directors from implementing the decision take in the Board of Directors meeting and the decision taken by the Board of Directors have not been challenged in the main petition, no relief can be granted. Shree Ram Urban Infrastructure Ltd Vs. R K Dhall 2010(98)CLA (Snr) 3 (Bom). Where the company law Board by impugned order had restrained the appellant and its Board of directors from implementing the decision take in the Board of Directors meeting and the decision taken by the Board of Directors have not been challenged in the main petition, no relief can be granted. Shree Ram Urban Infrastructure Ltd Vs. R K Dhall 2010(98)CLA (Snr) 3 (Bom).
Even where a person is not a member but he has indeffasible right to be a member, is entitled to file a company petition . Even where a person is not a member but he has indeffasible right to be a member, is entitled to file a company petition . SVT Spinning Mills (P) Ltd Vs. M Palanisami 2009(95) SCL 112., Gulab rai Kalidas Naik Vs. Laxmidas Lallubhai Patel 1947 (47) Company Cases 151.
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