INDIAN LA W REPORTSDELHI SERIES

2012(Containing cases determined by the High Court of Delhi)

VOLUME-6, PART-I(CONTAINS GENERAL INDEX)

EDITORMS. R. KIRAN NATH

REGISTRAR VIGILANCE

CO-EDITORMS. NEENA BANSAL KRISHNA

(ADDITIONAL DISTRICT & SESSIONS JUDGE)

REPORTERS

MR. CHANDER SHEKHAR MS. ANU BAGAIMR. TALWANT SINGH MR. SANJOY GHOSEMR. GIRISH KA THPALIA MR. KESHAV K. BHATIMR. VINAY KUMAR GUPTA JOINT REGISTRAR

MS. SHALINDER KAURMR. GURDEEP SINGHMS. ADITI CHAUDHAR YMR. ARUN BHARDWAJ(ADDITIONAL DIS TRICT

& SESSIONS JUDGES)

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I.L.R. (2012) 6 DELHI Part-I (November, 2012)

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Oil India Limited v. Essar Oil Limited..................................................222

Omaxe Ltd. & Ors. v. Roma International Pvt. Ltd..............................76

Prabhash Sharma & Anr. v. State............................................................1

Prem Raj v. Babu Ram Gupta & Others.............................................293

Rajesh Kumar Meena v. Commissioner of Police & Ors....................254

Ramesh Jaiswal v. Semjeet Singh Brar & Ors....................................212

Ramesh Kumar v. Mohd. Rahees & Ors..............................................72

Ravinder Prakash Punj v. Punj Sons Pvt. Ltd.. & Ors........................321

Ravi Shankar Sharma v. Kali Ram Sharma and Ors............................338

S.C. Bhagat & Anr. v. UOI & Anr. ......................................................147

S.K. Seth & Sons v. Vijay Bhalla........................................................139

Sat Bhan Singh & Anr v. Mahipat Singh & Ors..................................262

Shantanu Acharya v. Whirlpool of India Ltd.......................................358

Sheenam Raheja v. Amit Wadhwa.......................................................343

Shree Rishabh Vihar Cooperative House Building SocietyLtd. v. Salil Richariya & Ors.........................................................163

Social Jurist, A Civil Rights Group v. Govt. of NCT of Delhi...........308

Sushil Jain v. Meharban Singh & Ors.................................................186

Suresh Srivastava v. Subodh Srivastava and Ors................................272

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NOMINAL-INDEXVOLUME-6, PART-INOVEMBER, 2012

Amarjeet Singh v. The Management of National ThermalPower Corporation Ltd..................................................................441

Amish Jain & Anr. v. ICICI Bank Ltd.................................................377

Anand Burman v. State.........................................................................152

Asha Rani Gupta v. Rajender Kumar & Ors........................................283

B.R. Grover v. The State.....................................................................127

Bhagwan Dass & Ors. v. State...........................................................114

D.V. Chug v. State & Anr....................................................................81

Harsh Vardhan Land Limited v. Kotak Mahindra BankLimited & Ors................................................................................413

Hindustan Vegetable Oil Corporation Ltd. v. GaneshScientific Research Foundation....................................................368

IFFCO Tokio General Insurance Co. Ltd. v. Babita & Ors................206

The Indian Performing Right Society v. Ad VentureCommunication India Private Limited...........................................426

J.K. Synthetics Ltd. v. Dynamic Cement Traders...............................398

Janak Raj v. State NCT of Delhi & Ors...............................................158

K.K. Sareen and Ors. v. Neeta Sharma and Ors..................................405

K.V. Kohli Through Lrs. v. State...........................................................93

Kulvinder Singh v. Harvinder Pal Singh & Anr....................................108

Lalita Parashar & Anr. v. Ranjeet Singh Negi & Ors..........................119

Mohd. Jafar & Ors. v. Nasra Begum...................................................104

SUBJECT-INDEXVOLUME-6, PART-INOVEMBER, 2012

ADMINISTRA TIVE LA W—Consequential Benefits—Issueinvolved, whether the direction given by the CentralAdministrative Tribunal holding that petitioners would beentitled to all consequential benefits from the date ofregularization would include payment of arrears of pay, afterfixation of pay in the regular pay scale, from the Hon’bleSupreme Court in the case of Commissioner of Hon’bleHousing Board vs C. Muddaiah, AIR 2007 SC 3100, theanswer has to be in affirmative and consequential benefitswould include past wages as well.

S.C. Bhagat & Anr. v. UOI & Anr. ..........................147

ARBITRA TION AND CONCILIA TION ACT, 1996—Sections4, 14, 34—ICA Rules—Rules 58, 63—Submission was thatimpugned Award was delivered more than three years after itwas reserved and extraordinary delay by itself rendered itcontrary to public policy of India—Held, it cannot be laid downas an inviolable law that irrespective of facts andcircumstances of a case, if there is delay in pronouncing anAward, then it should be set aside—Thus, as a party continuedto participate in arbitral proceedings beyond period of twoyears without objecting to delay beyond two years in itscompetition and majority Award deals with each of issues dealtwith by dissenting Award, it cannot be said that delay inpronouncement of Award rendered it patently illegal oropposed to public policy of India.

Oil India Limited v. Essar Oil Limited.......................222

— Limitation Act, 1963—Article 136—Appellant filed executionpetition seeking execution of decree passed by Court, whilemaking an award rule of court—Execution petition dismissedbeing not maintainable—Aggrieved appellant challenged theorder—Respondents raised one of the objections that executionpetition was barred by limitation and merely because appealagainst dismissal of objections was pending, without therebeing a stay, (which was also dismissed.) limitation for

preferring execution petition did not stop to run on the dateon which award was made rule of Court. Held:—The periodof limitation for execution begins from the date of decisionof the Appellant Court in a case when the decree of the LowerCourt is challenged in Appeal as the original decree merges inthe appellate decree.

Ravinder Prakash Punj v. Punj Sons Pvt. Ltd..& Ors..............................................................................321

CODE OF CIVIL PROCEDURE, 1908—Order IX, Rule 13—In proceedings under Section 163A, Motor Vehicles Act, theappellant being owner of the offending vehicle filed the writtenstatement but thereafter, stopped appearing and was proceededexparte leading to exparte award against him—Appellantmoved application under Order IX Rule 13 alleging that hewas informed by his counsel that appellant need not come tocourt and counsel would keep track of the matter and on beingagain contacted, the counsel told him that Insurance Companywould do the needful and subsequently, appellant receivednotice of recovery—MACT dismissed the application—Hencethe appeal—Held, after filing the written statement the appellantstopped appearing and the matter was listed on four dates afterwhich the appellant was proceeded exparte, though someproxy counsel appeared but no evidence was led despiteopportunity—Held, conduct of appellant shows that he wasnot vigilant in pursuing the matter, no infirmity in the orderof MACT.

Ramesh Kumar v. Mohd. Rahees & Ors......................72

— Order 8, Rule 1—Limitation Act, 1963—Section 5—Constitution of India 1950—Article 227—Copy of suit forrecovery was served on 17th August, 2010—Though on 1stNovember 2010, petitioners appeared, but WS was not filed—Thereafter, matter was adjourned on few dates and it was onlyon 4th February, 2011 that petitioners filed an applicationunder section 5 of Limitation act r/w section 148 and 151 ofCPC seeking condonation of delay in filing written statementmainly on ground that petitioners were involved in constructionof various sites and the documents pertaining to this case werenot traceable and could only be traced after much efforts—Itwas also averred that it took some time to requisition the

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relevant documents and on receipt thereof the same were sentto their counsel for preparing WS and in the process, the filingof WS got delayed –Said application was dismissed and reviewagainst said order was also dismissed—Held in instant case,plea that was taken that documents were misplaced at somesite and could be traced only after many efforts, is apparentlyvague and irresponsible—Similar is plea that documents weregiven to counsel who took some time to prepare WS—Inbackdrop of mandatory provision of law regarding filling ofWS, pleas taken for seeking condonation are extremely vagueand devoid of any merit.

Omaxe Ltd. & Ors. v. Roma International Pvt. Ltd... 76

— Order XIV Rule 2 (2) (b)—Respondent No. 2/objector soughtdirections that Issue No. 2 as to whether the legalrepresentatives of late Sh. K.V. Kohli had no right to prosecutethis petition, be decided as preliminary issue—On the day whenissues were framed, no request was made to treat Issue No.2 as preliminary issue—Held, what falls Order 14 Rule 2 (2)(b) CPC are those bars by which the court is prevented/barredto decide the merits of the matter and where the issue requiresevidence, it cannot be treated as a legal issue and therefore,cannot be treated as preliminary issue—in view of factualmatrix of the case, Issue No. 2 need not be treated aspreliminary issue in so far as it does not fall within theintendment of "bar of suit created by law" used in theprovision.

K.V. Kohli Through Lrs. v. State...................................93

— Section 151—Order 7 Rule 1 (A) & Order 6 Rule 17—Plaintifffiled suit for partition—After completion of pleadings,defendant no. 1 moved two applications one seeking permissionto place some additional documents and other for amendmentto written statement—As per defendant no. 1, Court ought tobe liberal in granting prayer for amendment of pleadings unlessserious injustice or irreparable loss is caused to other side—Applications strongly opposed by plaintiff. Held—Amendmentto the written statement stands on a different footing fromthe amendment to the plaint. Though amendment to pleadingscannot be permitted so as to materially alter the substantial

cause of action in a plaint, there is no such principle that canbe applied to amendment in the written statement. Therefore,it is permissible for the defendant to take inconsistent pleas,mutually contrary pleas or to substitute the original plea takenin the written statement.

Kulvinder Singh v. Harvinder Pal Singh & Anr.......108

— Order 2 Rule 2—Order 7 Rule 11—Plaintiffs filed suit seekingpartition, declaration and permanent injunction—Defendant no.1 moved application U/O 7 Rule 11 seeking rejection of plainton ground that plaintiff had filed another suit claiminginjunction but did not claim relief of partition in that suit,therefore, present suit for partition of very same property notmaintainable. Held—If the course of action mentioned in theearlier suit afforded a basis for a valid claim, but did not enablethe plaintiff to ask for any relief other than those he prayedfor in that suit, the subsequent suit would not be barred underOrder 2 Rule 2.

Sat Bhan Singh & Anr v. Mahipat Singh & Ors......262

— Order 12 Rule 6—Limitation Act, 1963—Article 59—SpecificRelief Act, 1963—Section 31—Plaintiff filed suit seekingpartition of suit property situated in Vivek Vihar, New Delhii—Defendant no. 2, brother of plaintiff and defendant no. 1moved application u/o 12 Rule 6 Plaintiff supported theapplication whereas defendant no. 1 contested the same—Asper plaintiff, he, defendant no. 2 and defendant no. 3 (thefather) had entered into agreement recording that property wasjoint property of all the parties—Said agreement was followedby family settlement stating that all parties had 1/4th share insuit property and an affidavit of defendant no. 1 of same dateto same effect—Defendant no. 1 did not deny execution ofsaid documents but alleged misrepresentation and legalineffectiveness of documents which required trial and couldnot be disposed of by applying provisions of Order 12 Rule6. Held—There are two types of documents; one is void andsecond is voidable documents. For void documents, any suitfor cancellation u/s 31 of Specific Relief Act is not requiredto be filed—whereas voidable documents have to be cancelledas per Section 31 of the act and a suit could be filed within 3

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defendant that proceedings initiated by defendant fordissolution of marriage between them on ground ofirreconcilable differences pending before Superior Court ofCalifornia, U.S was illegal, invalid and void ab-initio—Duringpendency of suit, however, decree for dissolution of marriagewas passed by Superior Court of California and thus, plaintiffamended the plaint to seek appropriate orders declaring orderor dissolution of marriage as null and void and non-est in eyesof law—As per plaintiff, the parties were married accordingto Hindu rites and ceremonies at New Delhi and two femalechildren were born out of their wedlock—Their marriage raninto troubled waters on account of cruelty inflicted upon herby defendant and his relatives—Plaintiff became unwell andcame to India along with her two children—Mother-in-law ofthe plaintiff clandestinely took away the children to U.S. andplaintiff was forced to live with her parents as her matrimonialhome in New Delhi was locked by her mother-in-law-Plaintiffcame to know through close relatives of parties that defendanthad filed proceedings before a Court in U.S. and on checkingwebsite of Court, she came to know about the case fordissolution of marriage; thus plaintiff initiated present suit inDelhi. Held—The first and foremost requirement ofrecognizing a foreign matrimonial judgment is that the reliefshould be granted to the petitioner on a ground available underthe matrimonial law under which the parties were married,or where the respondent voluntarily and effectively submitsto the jurisdiction of the forum and contests and claim whichis based on a ground available under the matrimonial law underwhich the parties are married.—Plaintiff did not contest theclaim nor agree to the passing of decree—Decree ofdissolution of marriage passed by superior court of Californiaheld to be null and void and not enforceable in India.

Sheenam Raheja v. Amit Wadhwa..............................343

— Order 37—Summary Suit filed by the plaintiff/Respondentseeking recovery from Defendant who was distributor of itsproducts—Leave to Defend pleading lack of territorialjurisdiction filed by the Defendant—The Trial Court declinedthe Leave to Defend on the ground that the Application seekingLeave to Defend was neither signed by the Defendant norsupported by any Affidavit—Held, that Order 374 Rule (5)

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years as per Article 59 of Limitation Act.

Suresh Srivastava v. Subodh Srivastava and Ors.......272

— Order 39 Rule, 1, 2 & 4—Plaintiff instituted suit seekingpermanent and mandatory injunction against defendantsaverring plaintiff was owner of commercial and residentialproperty—His father-in-law had let out two shops out of theproperty to father of defendants—Defendants completelyencroached upon common verandah and common toilet inproperty which was meant for common use of occupants ofboth shops on ground floor as well as first floor—Acts ofdefendants had caused imminent danger to plaintiff—He alsoinitiated application seeking interim restrain orders andmandatory injunction against defendants. Held—Grant ofmandatory injunction during pendency of suit is essential andequitable relief which ultimately rests in the sound judicialdiscretion of the court to be exercised in the light of factsand circumstances in each case. No reason why plaintiffshould continue to suffer by not allowing her to have freeaccess to verandah toilet—In facts of this cause, temporarymandatory injunction granted.

Asha Rani Gupta v. Rajender Kumar & Ors.............283

— Section 2, Order 12 Rule 6—Delhi Land Reforms Act, 1985—Plaintiff filed suit for partition, possessions, rendition ofaccount, injunction etc alleging that suit properties which werevested with his grandfather, on death of his grandfather, wereinherited by him and defendant no. 1 (his father)—Defendantno. 1 raised various objections including that suit was barredby Delhi Land Reforms Act. Held—As per the provisions ofOrder 12 Rule 6 CPC, A Court is entitled to decide the suiton the basis of admitted facts at any stage—A decree as persection 2 (2) CPC includes dismissal of a suit and therefore,the provision of Order 12 Rule 6 CPC applies even fordismissal of a suit which is also called a decree.—Sinceproperties in the hand of defendants not was self acquired,suit dismissed.

Ravi Shankar Sharma v. Kali Ram Sharmaand Ors...........................................................................338

— Section 3—Plaintiff filed suit seeking declaration against

of the Code postulates that the facts soughts to be disclosedby the Defendant which entitle him to Leave to Defend neednot be on an Affidavit but should be disclosed in a mannerunder such circumstances, that a similar sanctity, probativevalue and presumption of correctness can be accorded to themby the Court—Open to Defendant to draw attention of theCourt either to the facts mentioned in the Plaint itself or evento the facts of which judicial notice can be taken as sufficientfor the grant of Leave to Defend.

Shantanu Acharya v. Whirlpool of India Ltd.............358

— Order 39 Rule 10—Transfer of Property Act, 1882—Section53A—Plaintiff Company became owner of suit property videnotification issued by Government in the year 1984, whichwas acquired by Government in the year 1972—Defendant,a Public trust created by plaintiff under name and style of M/s Ganesh Scientific Research Foundation was allowed byplaintiff to run its office in part of suit premises—However,no lease deed was executed in favour of defendant Trust—Defendant failed to vacate portion in its possession despite itwas asked to do by plaintiff and accordingly plaintiff had putits lock on there rooms and two big halls, in premises—Plaintiffs, then filed suit seeking possession of premises fromdefendant and also pressed for damaged—Plaintiff moved anapplication U/o 39 Rule 10 seeking direction for defendant todeposit charges for use and occupation of property and urged,defendant had no right to continue in possession of portionoccupied by it, without consent of plaintiff company—defendant Trust defended suit and claimed that it was lawfultenant under plaintiff and relief upon various minutes ofmeetings of Board of Trusties of plaintiff company as wellas defendant Trust—It also relied upon S-53A of Act. Held:Section 53A of Transfer of Properties Act comes into playwhen there is a contract between the parties for transfer ofany portion of suit property on leasehold or any other basis.There absolutely was no contract between the plaintiff andthe defendant for transfer of any portion of suit property eitheron leasehold or any other basis.

Hindustan Vegetable Oil Corporation Ltd. v. GaneshScientific Research Foundation...................................368

— Order 6 Rule 17—Plaintiffs had filed suit for damages andpossession of suit property against defendants—Defendantscontested vigorously suit and at time of advancement of finalarguments, they moved application seeking amendment of thewritten statement. Held:—No application for amendment shallbe allowed unless the court is satisfied that inspite of duediligence, the matter could not be raised before thecommencement of trial. The proviso to Order 6 Rule 17ofthe code put an embargo on the exercise of jurisdiction bythe Court; unless the jurisdiction fact as envisaged in theproviso is found to be existing. No amendment of plaint canbe allowed.

K.K. Sareen and Ors. v. Neeta Sharma and Ors.......405

CODE OF CRIMINAL PROCEDURE, 1973—Section162(2)—Circumstantial evidence—Dying declaration—As percase of prosecution, deceased was conductor on truckbelonging to accused Prabhash—On morning of incident,deceased went to house of accused Prabhash to take wagesfor two months—Deceased compelled to drink liquor despiterefusal and thereafter beaten by accused Prabhash and othertwo accused Manoj and Jaibir—Accused Manoj picked uptwo plastic canes containing acid and poured on deceasedwhile deceased held by other two accused—Deceased becameunconscious—When gained consciousness he found himselfnaked in injured condition near his jhuggi—Brother of deceased(PW 1) took him to hospital—Accused Prabhash arrested—Two statements of deceased recorded by police constable(PW-8)—Two other accused subsequently arrested—AccusedManoj got recovered plastic cane—Deceased died after 9 daysof incident—Cause of death was pneumonia and septicemiaconsequent to burn injuries—Trial court convicted accusedPrabhash and Manoj u/s 302/34—Accused Jaibir acquitted—Held, well settled principle that dying declaration was asubstantive piece of evidence to be relied on, provided it wasproved that same was voluntary and truthful and the victimwas in a fit state of mind—Doctor examining (PW6) accuseddid not make endorsement on MLC that deceased fit to makestatement—Certificate on MLC relied upon as DyingDeclaration not scribed or signed by doctor—Author ofendorsement on MLC not produced as witness—Nothing to

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not positively proved to be true, the accused would be entitledto acquittal—Appeal Allowed.

Prabhash Sharma & Anr. v. State...................................1

— Section 482—Petitioner whose prosecutions is sought to beinitiated under Sections 28/112 was working only as a managerof Indian Coffee House—Allegation against petitioner is thathe failed to produce a license for running an eating house andaccordingly, a Kalandara under Sections 28 and 112 waslodged against him—Held, it transpires that petitioner was onlya manager and he was neither owner nor proprietor ofpremises in question consequently, proceedings arising underSection 28 and 112 as well as any other proceedings arisingtherefrom against petitioner are quashed.

Janak Raj v. State NCT of Delhi & Ors...................158

— Section 340—In a civil proceedings under Sec. 340 againstthe defendant—Hon’ble Single Judge dismissed the applicationsas not maintainable-Plaintiff filed letters Patent Appeal—Respondent challenged maintainability of LPA—Held, once Sec340 is invoked, the court exercises criminal jurisdiction, evenif the main proceedings are civil in nature consequently, anorder passed on an application under Sec. 340 would be anorder passed in criminal jusridiction—Therefore, withinexceptions to Clause 10 of the Letters therefore appeal notmaintainable.

Ramesh Jaiswal v. Semjeet Singh Brar & Ors.........212

COMPETITION ACT, 2002—Section 26 (1)—On variouscomplaints being made to Registrar of Cooperative Societies(RCS), enquiry ordered under section 55 of Act—EO madehis report pointing out various irregularities in affairs ofpetitioner society—On basis of aforesaid enquiry report,Registrar constituted another enquiry under section 59 ofAct—EO gave report that Respondent No. 4 usurped powerof duly elected Managing Committee and fabricated and forgedrecords—Against first enquiry report under section 55 of Actand against second enquiry report under Section 59(1) of Act,Respondent No. 4 preferred two revision petitions undersections 80 of Act—Financial Commissioner (FC) allowedrevision petitions holding that enquiry report prepared under

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indicate that history in MLC given by patient—MLC recordedvery casually—Endorsement on MLC (Ex. PW 6/A) not adying declaration—Dying declaration (Ex. PW8/B) recordedby Head Constable PW 8 was in language which cast doubt,whether statement recorded on dictation of deceased—Medication administered to deceased not on record—No nameor indentify of person who endorsed fitness on statement Ex.PW8/B brought on record nor examined—No time ofendorsement mentioned—No evidence of fitness of deceasedwhen Ex. Pw 8/B scribed by PW-8—Second statement Ex.PW8/B not in words of deceased –No certification of fitnessor name of doctor who examined—Statement did not bearsignature or thumb impression of deceased—IO had 9 dayswhile the deceased was in hospital to get his statementrecorded by Magistrate, however made no efforts—Seriousinfirmities in statements recorded—Material contradictions withregard to time of occurrence, identify of assailants and mannerin which deceased attacked between two Dying Declaration—Events projected in Dying Declarations did not find mentionin statement of witness—Manner in which deceased receivedinjuries, doubtful—No proximity of time between statementsattributed to the deceased and his death—Contradiction instatements of recovery witnesses—No explanation about noclothes of the deceased being recovered from the spot—Notproved how deceased was transported from place ofoccurrence to site of his recovery—Controversy with regardto identify of kerosene cane recovered and delay in sendingsame for forensic examination—No arrest memo produced—Medical evidence and surrounding circumstances altogethercannot be ignored and kept out of consideration by placingexclusive reliance upon Dying Declaration—No evidence toshow that accused persons last seen with deceased—Evidencereflects failure of IO to examine eye—witnesses/publicwitnesses—In cases of circumstantial evidence, burden onprosecution is always greater—No evidence with regard tocommonality of intention to cause death—In cases ofcircumstantial evidence, inculpatory facts proved on recordmust be incompatible with the innocence of the accused andincapable of explanation—It is settled law that if there is somematerial on record which is consistent with the innocence ofthe accused which may be reasonably true even through it is

Sections 55 of Act was vitiated on account of breach ofprinciples of natural justice—Since enquiry report under section55 of Act was set aside, which is precursor to initiation ofproceedings under Sections 59(1) of Act, same too was setaside—Order challenged before High Court—Held—At stageof enquiry under Section 55 (1) of Act, there is no need forEO to issue notice to any specific individual or office bearerof cooperative society as it is general and preliminaryenquiry—It is only when Registrar decides to proceed againsta particular individual, member of office bearer or personentrusted with organization or management of society undersection 59 that a notice would be required to be issued to thatperson—Pertinently, conduct of enquiry under Section 55(1)of Act and preparation of report thereunder by itself does notresult in any civil or criminal consequence or fall out for anyreason—Even if enquiry report prepared under sections 55 (1)of Act were to suggest wrong doing by a particular personor officer of a society, Registrar may or may not accept reportand may or may not proceed further under Section 59 of Act—Principles of natural justice do not apply to enquiry conductedunder Section 55 of Act—FC had no competence to makeobservations on merits of case. Since he was dealing withrevision petition under Section 80 of Act, primarily on groundthat report under Section 55 of Act was prepared in breachof principles of natural justice—Impugned order passed byFC quashed and petition allowed.

Shree Rishabh Vihar Cooperative House BuildingSociety Ltd. v. Salil Richariya & Ors.........................163

CONSTITUTION OF INDIA, 1950 —Article 227—Copy of suitfor recovery was served on 17th August, 2010—Though on1st November 2010, petitioners appeared, but WS was notfiled—Thereafter, matter was adjourned on few dates and itwas only on 4th February, 2011 that petitioners filed anapplication under section 5 of Limitation act r/w section 148and 151 of CPC seeking condonation of delay in filing writtenstatement mainly on ground that petitioners were involved inconstruction of various sites and the documents pertaining tothis case were not traceable and could only be traced aftermuch efforts—It was also averred that it took some time torequisition the relevant documents and on receipt thereof the

same were sent to their counsel for preparing WS and in theprocess, the filing of WS got delayed –Said application wasdismissed and review against said order was also dismissed—Held in instant case, plea that was taken that documents weremisplaced at some site and could be traced only after manyefforts, is apparently vague and irresponsible—Similar is pleathat documents were given to counsel who took some timeto prepare WS—In backdrop of mandatory provision of lawregarding filling of WS, pleas taken for seeking condonationare extremely vague and devoid of any merit.

Omaxe Ltd. & Ors. v. Roma InternationalPvt. Ltd............................................................................76

— Letters Patent Appeal Clause 10—Code of Criminal Procedure,1973—Section 340—In a civil proceedings under Sec. 340against the defendant—Hon’ble Single Judge dismissed theapplications as not maintainable-Plaintiff filed letters PatentAppeal—Respondent challenged maintainability of LPA—Held,once Sec 340 is invoked, the court exercises criminaljurisdiction, even if the main proceedings are civil in natureconsequently, an order passed on an application under Sec.340 would be an order passed in criminal jusridiction—Therefore, within exceptions to Clause 10 of the Letterstherefore appeal not maintainable.

Ramesh Jaiswal v. Semjeet Singh Brar & Ors.........212

— Article 14, 15, 21, 21-A and 38—Delhi School Education Act,1973—Persons with Disabilities (Equal Opportunities,Protection of Rights and full Participation) Act, 1995—U.N.Convention on Rights of Child (1989)—U.N. Convention onrights of persons with Disabilities (2008)—Delhi SchoolEducation (Free seats for students belonging to EconomicallyWeaker Sections and Disadvantaged Group) Order 2011—Thispetition is concerned with a direction for appointment ofSpecial Educators and for provision of requisite aids inrecognized unaided and aided private schools, Delhi—Pleataken by Action Committee, two special educators may notbe required in all schools inasmuch as all schools may noteven have children with disabilities and recognized unaidedprivate schools should be permitted to make appointments of

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Special Educators and provision for special aids on a needbased basis—Schools be allowed to share Special Educatorsamongst themselves—Per contra plea taken by counsel forGNCTD as well as counsel for petitioner, if such liberty isgranted, schools, without incurring expenditure on salaries ofSpecial Educators would claim reimbursement per child asbeing paid to schools who employ such Special Educators—Absence of Special Educators and other Special Provisions fordisabled in school would act as a deterrent to children withdisability seeking admission thereto and would become a viciouscycle—Special Educators can be of assistance not only tochildren with disability but to other children as well and forthis reason also it is essential for schools to have them—Held—Recognized unaided private schools as well as aidedschools are required to employ minimum of two SpecialEducators in each school and appointment of such SpecialEducators cannot be made dependent on admission of childrenneeding Special Educators—Each of such school has to haveprovision for special aids for such children and is required toprovide a barrier free movement—Absence today of any suchchildren in school, cannot be excuse for not providing suchfacilities—If existing staff/teachers in schools are surplus and/or student strength or student-teacher ratio of school sopermits, schools can have their existing staff trained to teachchildren with disability instead of engaging separate SpecialEducators—Deployment of Special Educators cannot bedeferred till admission of children with special needs andschools have to be in a state of readiness and preparednessto receive children with special needs—Capital expenditure onmaking school building and premises barrier free so as to allowfree movement to children with disability, has to be incurredby schools from their own coffers and is not reimbursableby Government—All recognized aided and unaided privateschools in Delhi directed to appoint Special Educators and tomake their buildings/school premises barrier free so as toprovide free movement/access to children with disabilities—DoE, Govt. NCT of Delhi directed to ensure compliance ofdirections issued by this Court and to take action for de-recognition against erring schools—Schools where childrenwith special needs are already admitted or will be admittedhereafter, shall immediately make provision for Special

Educators and further ordain that no school shall refuseadmission to children with disability for reason of notemploying Special Educators or not providing barrier freeaccess in school premises.

Social Jurist, A Civil Rights Group v. Govt. ofNCT of Delhi.................................................................308

— Article 14—Notice issued to petitioner asking too show causehis habitual absence—Petitioner did not dispute his absenceas detailed in show cause notice, but merely pleaded that hehad been taking leave explaining his domestic problems andsaid leave was approved without pay and ought not be treatedunauthorized absence—Another notice issued by respondentto petitioner to show cause as to why he should not bedeemed to have voluntarily absented himself from work sincemonth of October, 2007 when his leave had never beenapproved as claimed by him in earlier reply—Petitionersubmitted a reply to said show cause notice stating that leavewas taken verbally; he had applied for regularization of hisabsence in terms of circulars of year, 1997-1998 ofrespondent and he was not allowed to sign attendance registerfor last 20 months and denied he had been absenting fromOctober, 1997—Respondent vide impugned order heldpetitioner to have voluntarily left services within meaning ofRule 24.96—Order of termination challenged before HighCourt—Plea taken, Rule aforesaid is violative of Article 14 ofConstitution of India as it empowers respondent Corporationto terminate service of employee without giving anychargesheet or opportunity of being heard and without holdingany enquiry resulting in violation of principles of natural justiceand order of termination also challenged on merits—Held—In so far challenge to Rule 24.9 of NTPC services Rules isconcerned, validity of said Rule was upheld by judgment ofDivision Bench—Regularisation of leave vide circulars of year,1997-1998 was at best till issuance thereof—Even if it wereto be held that unauthorized absence of petitioner till end ofApril, 1998 stood regularized, second show cause notice wasissued after one year and appellant has been unable to showany application for leave or sanction thereof for said one year—It is inconceivable that employee who though working, is notbeing permitted to mark this attendance for one year, would

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not take up matter—Neither any plea has been raised regardingproof of petitioner having worked during said time nor counselhas any knowledge—Petitioner has also not collected his payfrom month of October, 1997 onwards and no demandthereof was made—There is no perversity in application ofRule 24.9 qua petitioner and in deeming petitioner to haveabandoned his employment by remaining unauthorizedlyabsent from duty for more than consecutives 90 days.

Amarjeet Singh v. The Management of NationalThermal Power Corporation Ltd..................................441

COPYRIGHT ACT, 1957—Section 14, 17 & 33—Plaintiffclaimed to be Society of authors, composers and publishersof various literacy and musical works and administered publicperformances/communication to public rights under Act—Byvirtue of reciprocal contracts with other Societies, plaintiffalso claimed to be vested with public performance rights ofinternational music—Defendant alleged to be involved inorganizing live performances, songs and providing D.JS—Defendant organized live musical event wherein literary/musicalwork of plaintiff's society were communicated to publicwithout obtaining requisite license; thus, plaintiff claimedinfringement of copyright and filed out—Defendant did notcontest the suit and was proceeded ex-parte. Held—Communication of a sound recording to the public by ownerof the recording does not encroach upon the right of theowner of the underlying literary and musical work to performthe said underline works in the public—Copyright Holder ofsound recording does not have copyrights in live performancesbut a separate license from lyricist and musical composer, asthe case may be is required in case of live performances.

The Indian Performing Right Society v.Ad Venture Communication India Private Limited....426

DELHI COOPERA TIVE SOCIETIES RULES, 1973—Rules24(2)—Competition Act, 2002—Section 26 (1)—On variouscomplaints being made to Registrar of Cooperative Societies(RCS), enquiry ordered under section 55 of Act—EO madehis report pointing out various irregularities in affairs ofpetitioner society—On basis of aforesaid enquiry report,Registrar constituted another enquiry under section 59 of

Act—EO gave report that Respondent No. 4 usurped powerof duly elected Managing Committee and fabricated and forgedrecords—Against first enquiry report under section 55 of Actand against second enquiry report under Section 59(1) of Act,Respondent No. 4 preferred two revision petitions undersections 80 of Act—Financial Commissioner (FC) allowedrevision petitions holding that enquiry report prepared underSections 55 of Act was vitiated on account of breach ofprinciples of natural justice—Since enquiry report under section55 of Act was set aside, which is precursor to initiation ofproceedings under Sections 59(1) of Act, same too was setaside—Order challenged before High Court—Held—At stageof enquiry under Section 55 (1) of Act, there is no need forEO to issue notice to any specific individual or office bearerof cooperative society as it is general and preliminaryenquiry—It is only when Registrar decides to proceed againsta particular individual, member of office bearer or personentrusted with organization or management of society undersection 59 that a notice would be required to be issued to thatperson—Pertinently, conduct of enquiry under Section 55(1)of Act and preparation of report thereunder by itself does notresult in any civil or criminal consequence or fall out for anyreason—Even if enquiry report prepared under sections 55 (1)of Act were to suggest wrong doing by a particular personor officer of a society, Registrar may or may not accept reportand may or may not proceed further under Section 59 of Act—Principles of natural justice do not apply to enquiry conductedunder Section 55 of Act—FC had no competence to makeobservations on merits of case. Since he was dealing withrevision petition under Section 80 of Act, primarily on groundthat report under Section 55 of Act was prepared in breachof principles of natural justice—Impugned order passed byFC quashed and petition allowed.

Shree Rishabh Vihar Cooperative HouseBuilding Society Ltd. v. Salil Richariya & Ors.........163

DELHI LAND REFORMS ACT, 1985—Plaintiff filed suit forpartition, possessions, rendition of account, injunction etcalleging that suit properties which were vested with hisgrandfather, on death of his grandfather, were inherited byhim and defendant no. 1 (his father)—Defendant no. 1 raised

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eviction proceedings, petitioners tenant sought leave to defendon the grounds that the requirement set up by landlordrespondent to the effect that she needed the tenanted shop toset up business of her son was not bona fide since respondentlandlord is in possession of first and second floor, where ahusband is running a hotel and son of respondent is alreadyengaged in business of his father—Application dismissed byARC holding that there was no triable issue—challenged—Held, in view of contradiction in the contents of para 4 (ii) &para 4 (vii) of the reply to the application, there was definitelya triable issue regarding the alleged possession of the shops;as such impugned order not sustainable.

Mohd. Jafar & Ors. v. Nasra Begum.........................104

— Section 14 (1)(e)—Petitioner tenant sought leave to contesteviction petition on the grounds that the respondent landlorddid not have bona fide requirement of the demised premises,as respondent was in possession of a shop on ground floorof the suit property, which makes it to be a case ofrequirement of additional accommodation and that being so,petitioner tenant was entitled to leave to defend—AdditionalRent Controller dismissed the leave to defend application andpassed eviction order—Revision—Held, as per record, therespondent landlord concealed the fact of being in possessionof a shop on the ground floor and this fact was admitted byrespondent only on being confronted before the trial court,as such the trial court erred in summarily rejecting asubstantial triable issue—Also held, the factum of therespondent being in possession of alternate shop in acommercial area, essentially makes it a case of requirementof additional accommodation and in such cases leave to defendmust ordinarily be granted.

S.K. Seth & Sons v. Vijay Bhalla.............................139

DELHI SCHOOL EDUCATION ACT, 1973—Persons withDisabilities (Equal Opportunities, Protection of Rights and fullParticipation) Act, 1995—U.N. Convention on Rights of Child(1989)—U.N. Convention on rights of persons with Disabilities(2008)—Delhi School Education (Free seats for studentsbelonging to Economically Weaker Sections andDisadvantaged Group) Order 2011—This petition is concerned

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various objections including that suit was barred by Delhi LandReforms Act. Held—As per the provisions of Order 12 Rule6 CPC, A Court is entitled to decide the suit on the basis ofadmitted facts at any stage—A decree as per section 2 (2)CPC includes dismissal of a suit and therefore, the provisionof Order 12 Rule 6 CPC applies even for dismissal of a suitwhich is also called a decree.—Since properties in the handof defendants not was self acquired, suit dismissed.

Ravi Shankar Sharma v. Kali Ram Sharmaand Ors...........................................................................338

DELHI MUNICIP AL CORPORATION ACT, 1957—Section347, 461—Complaint filed by MCD u/s 347/461 of the Actagainst petitioner alleging change of user of property fromresidential to commercial by running Clinic of Doctor; whereasMCD had sanctioned permissible use of property asresidential—Petitioner filing of complaint urging that runningof Clinic by Doctor does not fall in commercial activity—Held:— The professional establishment of a doctor cannotcome within the definition of commercial activity. Commerceis that activity where a capital is put into; work and risk runof profit or loss. If the activities are undertaken for productionor distribution of goods or for rendering material services, thenit comes under the definition of commerce.

D.V. Chug v. State & Anr...........................................81

DELHI PUBLIC ACT, 1978—Section 28/112—Code of CriminalProcedure 1973—Section 482—Petitioner whose prosecutionsis sought to be initiated under Sections 28/112 was workingonly as a manager of Indian Coffee House—Allegation againstpetitioner is that he failed to produce a license for running aneating house and accordingly, a Kalandara under Sections 28and 112 was lodged against him—Held, it transpires thatpetitioner was only a manager and he was neither owner norproprietor of premises in question consequently, proceedingsarising under Section 28 and 112 as well as any otherproceedings arising therefrom against petitioner are quashed.

Janak Raj v. State NCT of Delhi & Ors...................158

DELHI RENT CONTROL ACT, 1950—Section 14(1) (e)—In

with a direction for appointment of Special Educators and forprovision of requisite aids in recognized unaided and aidedprivate schools, Delhi—Plea taken by Action Committee, twospecial educators may not be required in all schools inasmuchas all schools may not even have children with disabilities andrecognized unaided private schools should be permitted tomake appointments of Special Educators and provision forspecial aids on a need based basis—Schools be allowed toshare Special Educators amongst themselves—Per contra pleataken by counsel for GNCTD as well as counsel for petitioner,if such liberty is granted, schools, without incurringexpenditure on salaries of Special Educators would claimreimbursement per child as being paid to schools who employsuch Special Educators—Absence of Special Educators andother Special Provisions for disabled in school would act asa deterrent to children with disability seeking admission theretoand would become a vicious cycle—Special Educators canbe of assistance not only to children with disability but to otherchildren as well and for this reason also it is essential forschools to have them—Held—Recognized unaided privateschools as well as aided schools are required to employminimum of two Special Educators in each school andappointment of such Special Educators cannot be madedependent on admission of children needing SpecialEducators—Each of such school has to have provision forspecial aids for such children and is required to provide abarrier free movement—Absence today of any such childrenin school, cannot be excuse for not providing such facilities—If existing staff/teachers in schools are surplus and/or studentstrength or student-teacher ratio of school so permits, schoolscan have their existing staff trained to teach children withdisability instead of engaging separate Special Educators—Deployment of Special Educators cannot be deferred tilladmission of children with special needs and schools have tobe in a state of readiness and preparedness to receive childrenwith special needs—Capital expenditure on making schoolbuilding and premises barrier free so as to allow freemovement to children with disability, has to be incurred byschools from their own coffers and is not reimbursable byGovernment—All recognized aided and unaided private schoolsin Delhi directed to appoint Special Educators and to make

their buildings/school premises barrier free so as to providefree movement/access to children with disabilities—DoE,Govt. NCT of Delhi directed to ensure compliance ofdirections issued by this Court and to take action for de-recognition against erring schools—Schools where childrenwith special needs are already admitted or will be admittedhereafter, shall immediately make provision for SpecialEducators and further ordain that no school shall refuseadmission to children with disability for reason of notemploying Special Educators or not providing barrier freeaccess in school premises.

Social Jurist, A Civil Rights Group v. Govt. ofNCT of Delhi.................................................................308

HINDU SUCCESSION ACT, 1956—Probate—Testamentarycase of late Smt. Lajwanti Grover seeking probate of willfiled—Three sets of objections filed—One set of objectionwas filed by son of first wife of deceased husband of lateSmt. Lajwanti Grover Second set of objection was filed bylegal heirs of pre—deceased son of deceased husband andthird set of objection was filed by other two sons of deceasedhusband—Third set of objections challenged ownership of lateSmt. Lajwanti Grover, second wife of deceased husband quaproperty in East Patel Nagar, New Delhi alleging that she wasnot owner of property and therefore, she could not bequeaththe same Held:—A Probate Court does not go into the title ofthe properties—It only examines the validity of will i.e.essential execution of the will, attestation of the will and thesound disposing mind of the testator (which will include theaspect of any surrounding circumstances qua the will).

Prof. B.R. Grover v. The State..................................127

INDIAN EVIDENCE ACT, 1872—Section 34—Plaintiff filed suitfor recovery—According to plaintiff, suit amount was onaccount of debit balance due from defendant as per runningaccount—Defendant contested the suit and pleaded that therewas no running account but payment was made bill-wise—Also relationship between parties was terminated all paymentswere cleared—Also suit was barred by limitation—To proverecovery of amount, plaintiff relied upon statement of account.Held: A mere entry in the statement of account is not sufficient

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to fasten any liability and the entries in the statement ofaccount have to be proved by means of the documents/vouchers of the transaction.

J.K. Synthetics Ltd. v. Dynamic Cement Traders........398

INDIAN PENAL CODE, 1860—Section 288/304A/338/337/427—Petitioners charged for committing offences punishableu/s 288/304A/338/337/427 of the Code—They challenged theorder urging that they were simply members of ManagingCommittee which wanted temple to be constructed forwelfare of general public—Managing Committee had takenservices of three contractors to raise construction andpetitioners had no role in the commission of offence, also nospecific allegations were made against them—Held:—At thestage of charge the learned Trial Court is only required to lookinto the basic material/evidence before it and form an opinionthat prima facie case is made out against the accused persons.

Bhagwan Dass & Ors. v. State....................................114

—Section 162(2)—Circumstantial evidence—Dying declaration—As per case of prosecution, deceased was conductor on truckbelonging to accused Prabhash—On morning of incident,deceased went to house of accused Prabhash to take wagesfor two months—Deceased compelled to drink liquor despiterefusal and thereafter beaten by accused Prabhash and othertwo accused Manoj and Jaibir—Accused Manoj picked uptwo plastic canes containing acid and poured on deceasedwhile deceased held by other two accused—Deceased becameunconscious—When gained consciousness he found himselfnaked in injured condition near his jhuggi—Brother of deceased(PW 1) took him to hospital—Accused Prabhash arrested—Two statements of deceased recorded by police constable(PW-8)—Two other accused subsequently arrested—AccusedManoj got recovered plastic cane—Deceased died after 9 daysof incident—Cause of death was pneumonia and septicemiaconsequent to burn injuries—Trial court convicted accusedPrabhash and Manoj u/s 302/34—Accused Jaibir acquitted—Held, well settled principle that dying declaration was asubstantive piece of evidence to be relied on, provided it wasproved that same was voluntary and truthful and the victim

was in a fit state of mind—Doctor examining (PW6) accuseddid not make endorsement on MLC that deceased fit to makestatement—Certificate on MLC relied upon as DyingDeclaration not scribed or signed by doctor—Author ofendorsement on MLC not produced as witness—Nothing toindicate that history in MLC given by patient—MLC recordedvery casually—Endorsement on MLC (Ex. PW 6/A) not adying declaration—Dying declaration (Ex. PW8/B) recordedby Head Constable PW 8 was in language which cast doubt,whether statement recorded on dictation of deceased—Medication administered to deceased not on record—No nameor indentify of person who endorsed fitness on statement Ex.PW8/B brought on record nor examined—No time ofendorsement mentioned—No evidence of fitness of deceasedwhen Ex. Pw 8/B scribed by PW-8—Second statement Ex.PW8/B not in words of deceased –No certification of fitnessor name of doctor who examined—Statement did not bearsignature or thumb impression of deceased—IO had 9 dayswhile the deceased was in hospital to get his statementrecorded by Magistrate, however made no efforts—Seriousinfirmities in statements recorded—Material contradictions withregard to time of occurrence, identify of assailants and mannerin which deceased attacked between two Dying Declaration—Events projected in Dying Declarations did not find mentionin statement of witness—Manner in which deceased receivedinjuries, doubtful—No proximity of time between statementsattributed to the deceased and his death—Contradiction instatements of recovery witnesses—No explanation about noclothes of the deceased being recovered from the spot—Notproved how deceased was transported from place ofoccurrence to site of his recovery—Controversy with regardto identify of kerosene cane recovered and delay in sendingsame for forensic examination—No arrest memo produced—Medical evidence and surrounding circumstances altogethercannot be ignored and kept out of consideration by placingexclusive reliance upon Dying Declaration—No evidence toshow that accused persons last seen with deceased—Evidencereflects failure of IO to examine eye—witnesses/publicwitnesses—In cases of circumstantial evidence, burden onprosecution is always greater—No evidence with regard tocommonality of intention to cause death—In cases of

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circumstantial evidence, inculpatory facts proved on recordmust be incompatible with the innocence of the accused andincapable of explanation—It is settled law that if there is somematerial on record which is consistent with the innocence ofthe accused which may be reasonably true even through it isnot positively proved to be true, the accused would be entitledto acquittal—Appeal Allowed.

Prabhash Sharma & Anr. v. State...................................1

INDIAN SUCCESSION ACT, 1925—Section 57, 67, 276 readwith 227—Deceased, mother petitioners, died after executinga Will—she was survived by two legal heirs namely herhusband, who died during pendency of Probate petition andher son, i.e., petitioner who is only surviving petitioner—Disposition of her properties by deceased was in favour ofpetitioner and his wife also—Petitioner was also one of attestingwitnesses—Both attesting witnesses of Will have beenproduced—Execution of Will thus, stood duly proved—Thereare no suspicious circumstances surrounding execution of Willin question—One question of law which arose was as towhether Will, having been attested by petitioner, bequest toextent it is in his favour, would be void or not—Held, bequestmade to attesting witnesses of Will, executed by a Hindu, isnot void under Section 67 of said Act—Therefore, bequestmade to petitioner is not void—As regards his competence asan attesting witness, Section 68 specifically provides that noperson, by reason of interest in, or of his being an executorof, a Will shall be disqualified as a witness to prove executionof Will or to prove the validity or invalidity thereof—Therefore,petitioner was a competent witness to prove execution of willexecuted by deceased.

Anand Burman v. State.................................................152

LIMIT ATION ACT, 1963—Section 5—Constitution of India1950—Article 227—Copy of suit for recovery was served on17th August, 2010—Though on 1st November 2010,petitioners appeared, but WS was not filed—Thereafter, matterwas adjourned on few dates and it was only on 4th February,2011 that petitioners filed an application under section 5 ofLimitation act r/w section 148 and 151 of CPC seekingcondonation of delay in filing written statement mainly on

ground that petitioners were involved in construction of varioussites and the documents pertaining to this case were nottraceable and could only be traced after much efforts—It wasalso averred that it took some time to requisition the relevantdocuments and on receipt thereof the same were sent to theircounsel for preparing WS and in the process, the filing of WSgot delayed –Said application was dismissed and review againstsaid order was also dismissed—Held in instant case, plea thatwas taken that documents were misplaced at some site andcould be traced only after many efforts, is apparently vagueand irresponsible—Similar is plea that documents were givento counsel who took some time to prepare WS—In backdropof mandatory provision of law regarding filling of WS, pleastaken for seeking condonation are extremely vague and devoidof any merit.

Omaxe Ltd. & Ors. v. Roma InternationalPvt. Ltd............................................................................76

— Article 59—Specific Relief Act, 1963—Section 31—Plaintifffiled suit seeking partition of suit property situated in VivekVihar, New Delhii—Defendant no. 2, brother of plaintiff anddefendant no. 1 moved application u/o 12 Rule 6 Plaintiffsupported the application whereas defendant no. 1 contestedthe same—As per plaintiff, he, defendant no. 2 and defendantno. 3 (the father) had entered into agreement recording thatproperty was joint property of all the parties—Said agreementwas followed by family settlement stating that all parties had1/4th share in suit property and an affidavit of defendant no.1 of same date to same effect—Defendant no. 1 did not denyexecution of said documents but alleged misrepresentation andlegal ineffectiveness of documents which required trial andcould not be disposed of by applying provisions of Order 12Rule 6. Held—There are two types of documents; one is voidand second is voidable documents. For void documents, anysuit for cancellation u/s 31 of Specific Relief Act is not requiredto be filed—whereas voidable documents have to be cancelledas per Section 31 of the act and a suit could be filed within 3years as per Article 59 of Limitation Act.

Suresh Srivastava v. Subodh Srivastava and Ors.......272

— Article 136—Appellant filed execution petition seeking

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execution of decree passed by Court, while making an awardrule of court—Execution petition dismissed being notmaintainable—Aggrieved appellant challenged the order—Respondents raised one of the objections that execution petitionwas barred by limitation and merely because appeal againstdismissal of objections was pending, without there being astay, (which was also dismissed.) limitation for preferringexecution petition did not stop to run on the date on whichaward was made rule of Court. Held:—The period of limitationfor execution begins from the date of decision of the AppellantCourt in a case when the decree of the Lower Court ischallenged in Appeal as the original decree merges in theappellate decree.

Ravinder Prakash Punj v. Punj Sons Pvt. Ltd..& Ors..............................................................................321

MOT OR VEHICLES ACT, 1988—The appellant being ownerof the offending vehicle filed the written statement butthereafter, stopped appearing and was proceeded exparteleading to exparte award against him—Appellant movedapplication under Order IX Rule 13 alleging that he wasinformed by his counsel that appellant need not come to courtand counsel would keep track of the matter and on being againcontacted, the counsel told him that Insurance Companywould do the needful and subsequently, appellant receivednotice of recovery—MACT dismissed the application—Hencethe appeal—Held, after filing the written statement the appellantstopped appearing and the matter was listed on four dates afterwhich the appellant was proceeded exparte, though someproxy counsel appeared but no evidence was led despiteopportunity—Held, conduct of appellant shows that he wasnot vigilant in pursuing the matter, no infirmity in the orderof MACT.

Ramesh Kumar v. Mohd. Rahees & Ors......................72

— Section 168—Award challenged inter alia on the ground thatwhile considering the income of the deceased amount paid bythe deceased employer towards medical, LTA basket,Provident Fund and medi-claim premium, was not taken intoconsideration—Deceased was working with a multi nationalcompany—Held, deceased was getting a flexi basket of Rs.

11,539/- per month, besides salary—In multi nationalcompanies normally choice is given to an employee as to howthe employee wants to take the package to give advantage ofdeduction in income Tax Act—The deceased gave the choiceto get the amount of Rs. 11,539/- as reimbursent towardsconveyance, petrol, mobile phone usage charges etc.—Ifsome facilities are provided are provided by the employer forthe benefit of employee or his family, the same are relevantfor the purpose of computation of income of the deceased—Thus, apart from dearness allowance, other allowances,payable for the benefit of family, are to be considered incomputing the annual income.

Lalita Parashar & Anr. v. Ranjeet SinghNegi & Ors....................................................................119

— Section 163A and 166—Deceased ‘S’ driving TSR met withaccident with a Maruti Car—His legal representatives filed aPetition under Section 163A of Act claiming compensationfrom owner/insurer of Maruti Car as well as TSR—ClaimsTribunal awarded compensation and opined that since bothvehicles were involved in accident, there would be equalliability on insurer of both vehicles—Order challenged byinsurer of TSR—Plea taken, since deceased was himselfdriving TSR, his legal representatives could not have claimedcompensation from themselves and from owner (beingvicariously liable)—Appellant being insurer of TSR had noliability—Claims Tribunal erred in awarding compensationunder Section 166 of Act although petition was preferredunder Section 163A of Act—Held—Where driver of a vehiclewhether a two wheeler, a TSR or any other vehicle meetswith accident involving another vehicle and if accident is causedon account of his own negligence, he would not be entitledto any compensation—If accident did not occur on accountof driver/owner's own negligence, he would be entitled toclaim compensation from owner/insurer of other vehicleirrespective of fact whether there was any default ornegligence on part of driver of other vehicle or not—Nodefence was taken by driver and owner of Maruti Car or it'sinsurer that accident was caused on account of deceased'sown negligence—Claim's Tribunal opinion that there wouldbe equal liability on insurer of both vehicles is not correct

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interpretation of Section 163A of Act—Appellant is not liableat all to pay compensation—Compensation reduced as it is tobe awarded on basis of structured formula.

IFFCO Tokio General Insurance co. Ltd. v.Babita & Ors.................................................................206

RECOVERIES OF DEBTS DUE TO BANKS ANDFINANCIAL INSTITUTIONS ACT, 1993 –Section 2(9),3(2), 19(1) and 25—The Debt Recoveries Tribunal(Procedure) Rules, 1993—Rule 6—Code of Civil Procedure,1908—Section 16, 20 and Order 34—The Security Interest(Enforcement) Rules, 2002—Rule 4, 5, 6 and 8 –The HinduMarriage Act, 1955—Section 21—Petition filed impugningorder of DRT—III, Delhi holding that it has no jurisdictionto entertain appeal preferred by petitioners under Section 17of SARFAESI Act for reason of petitioners being resident ofMeerut, loan in their favour having been sanctioned by branchof respondent bank at Meerut, loan being repayable at Meerutand mortgaged property being at Meerut and even if actionunder Section 13(4) or Section 14 of SARFAESI Act is to betaken by bank, bank will have to approach concerned DistrictMagistrate at Meerut for appointment of receiver, for takingpossession of property—A doubt having arisen as tocorrectness of judgment of DB of this Court in Indira Deviinsofar as holding that appeal under Section 17 of SARFAESIAct can be filed not only in DRT having jurisdiction wheremortgaged property is situated but also in DRT havingjurisdiction where branch of Bank/Financial Institution whichhas distributed loan is situated as well as in all DRTs whichwould have jurisdiction in terms of Section 19(1) of DRTAct read with Rule 6 of DRT Rules, Full bench wasconstituted—Plea taken, DRT Delhi has jurisdiction by virtueof provisions of Section 19(1) (c) of DRT Act read with Rule6(d) of DRT Rules to entertain and decide such appeal—Percontra, counsel for bank supporting impugned order,contended that it is rather in interest of Bank also, ifjurisdiction of DRT Delhi is permitted to be invoked and onsame parity, bank should also have freedom to approach ChiefMetropolitan Magistrate at Delhi for assistance for takingpossession of mortgaged property, even if situated outsideDelhi—jurisdiction of DRT before which appeal under Section

17 (1) of SARFAESI Act can be filed shall be determined asper DRT Act and Rules made thereunder—Referring toSection 19(1) of DRT Act it was contended that jurisdictionthereunder is of DRT where defendants or any of them residesor carries on business or where cause of action wholly or inpart arises—Event which triggers appeal under Section 11 (1),is action of Authorized Officer of Bank—DRT within whosejurisdiction said Authorized Officer is situated, would havejurisdiction—Since in present case, Authorized Officer ofRespondent Bank has issued notice to Petitioners from withinjurisdiction of Delhi, DRT having jurisdiction over Delhi wouldDefinitely have jurisdiction to entertain appeal—Rule 6 has beenamended to provide for jurisdiction not only of DRT Whereapplicant is functioning as a Bank or Financial Institution, butalso of DRTs within whose jurisdiction defendants or any ofthem resides or carry on business or where cause of actionwholly or in part arises—Amendment of Rule 6 is afterSARFAESI Act came into force and legislature should bedeemed to have amended Rule to provide for jurisdiction ofDRT qua appeal under section 17 (1) of SARFAESI Act also—Held—Division Bench fell in error in assuming Debt/moneyrecovery proceeding to be initiated by Bank under DRT Actas equivalent to legal proceeding subject whereof is amortgaged property, within meaning of section 16 of CPC—Proceedings referred to in Section 19(1) of DRT Act aremerely proceeding for recovery of debt and not forenforcement of mortgage—Even prior to coming into forceof DRT, Act, Bank, even if a mortgage, was not mandatorily,required to enforce mortgage and which under Section 16 ofCPC could be done only within territorial jurisdiction of Courtwhere mortgaged property was situated and Bank was freeto institute a suit, only for recovery of money and territorialjurisdiction whereof was governed by Section 20 of CPC,containing same principles as in Section 19(1) of DRT Act—Recovery proceeding under DRT Act are equivalent to a suitfor recovery of money before a Civil Court and cannot besaid to be for enforcement of mortgage—Cause of action ofappeal under Section 17(1) of SARFAESI Act is taking overof possession/management of secured asset and which causeof action can be said to have accrued only within jurisdictionof DRT where secured asset is so situated and possession

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thereof, is taken over—It is said DRT only which can be saidto be having “Jurisdiction in the matter” within meaning ofSection 17(1) of Act—Exercise of jurisdiction under Section17(1) of SARFAESI Act by DRTs of a place other than wheresecured asset is situated is likely to lead to complexities anddifficulties which are best avoided—There is no provision inDRT Act providing for territorial jurisdiction of appeal underSection 17(1) of SARFAESI Act and question of applicationthereof under Section 17(7) does not arise—Limits ofterritorial jurisdiction described under Section 19(1) of DRTAct cannot be made applicable to Section 17(1) of SARFAESIAct—Section 19(1) of DRT Act is not omnibus provisionqua territorial jurisdiction—It is concerned only with providingfor territorial jurisdiction for applications for recovery of debtsby Bank/Financial Institutions—Same can have no applicationto appeals under Section 17(1) of SARFAESI Act which areto be preferred, not by Banks/Financial Institutions, but againstBanks/Financial Institutions—Use, in section 17(7) ofSARFAESI Act, of words “as far as may be” and “same asotherwise provided in Act” also exclude applicability even ofprinciples contained in Section 19(1) of DRT Act to determineterritorial jurisdiction of appeal under Section 17(7) ofSARFAESI Act—Merely because defendant if were to sue,can sue at place of residence of plaintiff, does not entitleplaintiff to sue at place of his residence if that place wouldotherwise not have territorial jurisdiction—Application underSection 17(1) of SARFAESI Act can be filed only before DRTwithin whose jurisdiction property/secured asset against whichaction is taken in situated and in no other DRT—No errorfound in order of DRT. Delhi holding it to have no jurisdictionto entertain appeal/application under Section 17(1) ofSARFAESI Act, mortgage property against which action istaken being situated at Meerut.

Amish Jain & Anr. v. ICICI Bank Ltd......................377

— Section 19 (1)—The Securitization and Reconstruction ofFinancial Assets and Enforcement of Security Interest Act,2002—Section 13 (2), 14, 17—Transfer of Property Act,1882—Section 65 A—Respondent No. 2 to 6 availed loansfrom ICICI Bank by creating equitable mortgage of propertyin question owned by Respondent no. 6 HUF as well as other

immovable properties and also hypothecation of their movableassets—Since borrowers failed to repay said loan, ICICI Bankapproached DRT by filling two original applications—DRTrestrained Respondent No. 6 from selling or parting withpossession of mortgaged properties—Later, ICICI assignedaforesaid debt and incidental rights together with securityinterest held by it to Respondent no. 1 Bank I.e. KotakMahindra Bank Ltd—Respondent no. 1 Bank initiatedproceeding for recovery by issuing notice under Section 13(2) of SARFAESI Act—HUF filed Securitization Appeal beforeDRT—While said Securitization Appeal was pending HUF andpetitioner, despite restrain order, entered into registered leasedeed—Securitization Appeal dismissed by DRT against whichHUF filed appeal before DRAT—In meanwhile HUF andRespondent No. 1 Bank entered into a compromise and movedapplication before DRT—In terms of joint compromise,consent decree passed by DRT—Alleging default in paymentby borrowers, in terms of aforesaid compromise, Respondentno. 1 Bank moved application under Section 14 of SARFESIAct before DRT for seeking assistance in taking possessionof mortgaged properties—Borrowers filed SecuritizationAppeal against same before DRT—DRT declined to grantinterim relief—subsequently writ petition filed before HighCourt wherein borrowers offered to liquidate their dues bybringing in purchasers—High Court dismissed applicationseeking extension of time to sell property observing thatborrowers have not only cheated and misled Respondent no.1 Bank, but have been even tried to over reach this court bynot disclosing to this court that they had created third partyinterest in respect of various portions of mortgagedproperties—In meanwhile, upon motion by Respondent no. 1Bank, Ld. ACMM (Special Acts) appointed a court receiverto take possession of mortgaged properties which includedproperty in question—A notice in respect of taking physicalpossession of secured assets was served upon borrowers bycourt appointed receiver—Petitioner while in possession ofproperty in question filed securitization appeal impugningaforesaid notice which was dismissed by DRT—Petitionerfiled appeal before DRAT alongwith application seeking interimprotection against taking of possession of property in questionby court receiver—DRAT vide impugned order dismissed

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application—Order challenged before High Court—Plea taken,joint application filed before DRT itself recorded thatRespondent No. 1 bank would be entitled to receive leaserental arising out of property in question—Having soconsented, Respondent NO. 1 Bank cannot now take a pleathat tenancy in question was in violation of restrain order—Tenancy had been entered into much prior to compromiseapplication moved by Respondent no. 1 Bank and borroweraccorded its consent and acceptance—Only right ofRespondent no. 1 Bank is to receive rent towards satisfactionof outstands of borrowers—Aforesaid tenancy had beenexecuted in ordinary course of management vide a registeredlease deed—Amount of Rs. 4.5 crores referred to as securitydeposit in lease deed had actually been advanced to HUF as aloan, vide a separate agreement, which had to be repaid onexpiry of terms of 36 months—Same was not in nature of apremium and as such tenancy was not in violation of section65 A of T.P. Act—This court itself in civil suit filed bypetitioner herein seeking permanent injunction againstborrowers from dispossessing petitioner from property inquestion was pleaded to grant interim protection to petitioner-Per contra plea taken, tenancy relied upon by petitioner, is inutter violation of restrain order of DRT—Same has beenentered into between petitioner and HUF in collusion, with aclear fraudulent intent to avoid/defeat request of RespondentNO. 1 Bank and siphon mortgaged property—Consideringterms and conditions of agreements executed betweenpetitioner and HUF, transaction of Rs. 4.5 Crores thoughnomenclature as a loan, was in true sense, a premium paid inrespect of property in question and thus protection of section65 A is not available to petitioner—In terms of jointcompromise entered into between Respondent no. 1 Bank andborrworrers, symbolic possession of mortgaged propertiesalready vested with Respondent No. 1 Bank and physicalpossession of same could be taken by per its own discretionas and when it deemed so fit—Tenancy of premises expiredon 18.9.12 and possession being taken over by RespondentNo 1 Bank after passing of impugned order, petitioner hereinhas no legs to seek any interim protection in respect ofproperty in question—Held—DRT vide order dated 2.5.2003had in clear terms restrained borrowers from creating and third

party interest in mortgaged properties, including property inquestion—Said order was never modified or set aside in anyproceedings thereafter—However, despite same, tenancy withrespect to property in question came to be entered intobetween petitioner herein and HUF—This clearly demonstratesfraudulent conduct, not only of borrowers, but also ofpetitioner who colluded with borrowers—Said tenancy wasnot only in utter disregard of DRT’s order but was also inthe teeth of provisions of Section 65 A of T.P. Act whichprovides for mortgagor’s power to lease mortgaged property,which is in its lawful possession—A perusal of same, revealsa flow of consideration of Rs. 4.5 Crores under guise andgarb of a loan and security deposit, which was much morethan otherwise agreed rental amount—As per terms of tenancyand loan agreement not only would said amount fetch amonthly interest of 2.92% to petitioner but in event of defaultof payment of same, petitioner would have right to disposeof leased premises through a public auction and recoveramount—Considering conduct and inability of borrowers topay of its principal loans/facilities, and conditions of said leaseand loan agreement, were in effect that of a virtual sale—Saidamount was nothing but a premium paid in respect of saidproperty and as such violative of Section 65 A of Act—Therefore, protection of said provision would not be availableto tenancy in question—Next submission of petitioner thatcompromise entered into between borrowers and respondentbank no. 1 provided for a deemed approval to factum oftenancy in question and as such cannot be overridden bymortgage created in favour of respondent no .1 bank, alsohas no merit whatsoever—Said compromise also gavesymbolic possession of mortgaged properties to respondentno. 1 Bank with discretionary right to take possession as andwhen it deemed fit—Even if one were to accept plea ofpetitioner, that compromise (decreed by DRT) accorded adeemed approval to tenancy in question and in effect over-rid earlier restrain order of DRT, same would have to besubject and conditional to aforesaid possessory rights ofrespondent no. 1 Bank which formed a part of samecompromise—For this reason as well, said submission ofpetitioner also stands rejected—Moreover, Tenancy inquestion also stands extinguished and possession restored to

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respondent no. 1 Bank—In view of same, nothing survivesin present petition—Grievances, if any, that petitioner mayhave, in view of recovery of possession by respondent no. 1bank before expiry of tenancy in question are matters whichare to be raised in independent appropriate proceedings andcan only be against HUF-Since respondent no. 1 Bank has noprivity of contract with petitioner, petitioner cannot claim anyrelief against respondent no. 1 Bank—Present petitiondismissed with costs.

Harsh Vardhan Land Limited v. Kotak MahindraBank Limited & Ors.....................................................413

RIGHT OF CHILDREN TO FREE AND COMPULSORYEDUCATION ACT, 2009—Section 3, 12(2) and 19 (2)—Constitution of India, 1950—Article 14, 15, 21, 21-A and38—Delhi School Education Act, 1973—Persons withDisabilities (Equal Opportunities, Protection of Rights and fullParticipation) Act, 1995—U.N. Convention on Rights of Child(1989)—U.N. Convention on rights of persons with Disabilities(2008)—Delhi School Education (Free seats for studentsbelonging to Economically Weaker Sections andDisadvantaged Group) Order 2011—This petition is concernedwith a direction for appointment of Special Educators and forprovision of requisite aids in recognized unaided and aidedprivate schools, Delhi—Plea taken by Action Committee, twospecial educators may not be required in all schools inasmuchas all schools may not even have children with disabilities andrecognized unaided private schools should be permitted tomake appointments of Special Educators and provision forspecial aids on a need based basis—Schools be allowed toshare Special Educators amongst themselves—Per contra pleataken by counsel for GNCTD as well as counsel for petitioner,if such liberty is granted, schools, without incurringexpenditure on salaries of Special Educators would claimreimbursement per child as being paid to schools who employsuch Special Educators—Absence of Special Educators andother Special Provisions for disabled in school would act asa deterrent to children with disability seeking admission theretoand would become a vicious cycle—Special Educators canbe of assistance not only to children with disability but to otherchildren as well and for this reason also it is essential for

schools to have them—Held—Recognized unaided privateschools as well as aided schools are required to employminimum of two Special Educators in each school andappointment of such Special Educators cannot be madedependent on admission of children needing SpecialEducators—Each of such school has to have provision forspecial aids for such children and is required to provide abarrier free movement—Absence today of any such childrenin school, cannot be excuse for not providing such facilities—If existing staff/teachers in schools are surplus and/or studentstrength or student-teacher ratio of school so permits, schoolscan have their existing staff trained to teach children withdisability instead of engaging separate Special Educators—Deployment of Special Educators cannot be deferred tilladmission of children with special needs and schools have tobe in a state of readiness and preparedness to receive childrenwith special needs—Capital expenditure on making schoolbuilding and premises barrier free so as to allow freemovement to children with disability, has to be incurred byschools from their own coffers and is not reimbursable byGovernment—All recognized aided and unaided private schoolsin Delhi directed to appoint Special Educators and to maketheir buildings/school premises barrier free so as to providefree movement/access to children with disabilities—DoE,Govt. NCT of Delhi directed to ensure compliance ofdirections issued by this Court and to take action for de-recognition against erring schools—Schools where childrenwith special needs are already admitted or will be admittedhereafter, shall immediately make provision for SpecialEducators and further ordain that no school shall refuseadmission to children with disability for reason of notemploying Special Educators or not providing barrier freeaccess in school premises.

Social Jurist, A Civil Rights Group v. Govt. ofNCT of Delhi.................................................................308

SECURITIZA TION AND RECONSTRUCTION OFFINANCIAL ASSETS AND ENFORCEMENT OFSECURITY INTEREST ACT, 2002—Section 2(zc), (ze),(zf), 2(1), 13(2) (4), 14, 17 and 17A—The Recoveries ofDebts Due to Banks and Financial Institutions Act, 1993 –

Section 2(9), 3(2), 19(1) and 25—The Debt RecoveriesTribunal (Procedure) Rules, 1993—Rule 6—Code of CivilProcedure, 1908—Section 16, 20 and Order 34—The SecurityInterest (Enforcement) Rules, 2002—Rule 4, 5, 6 and 8 –TheHindu Marriage Act, 1955—Section 21—Petition filedimpugning order of DRT—III, Delhi holding that it has nojurisdiction to entertain appeal preferred by petitioners underSection 17 of SARFAESI Act for reason of petitioners beingresident of Meerut, loan in their favour having been sanctionedby branch of respondent bank at Meerut, loan being repayableat Meerut and mortgaged property being at Meerut and evenif action under Section 13(4) or Section 14 of SARFAESI Actis to be taken by bank, bank will have to approach concernedDistrict Magistrate at Meerut for appointment of receiver, fortaking possession of property—A doubt having arisen as tocorrectness of judgment of DB of this Court in Indira Deviinsofar as holding that appeal under Section 17 of SARFAESIAct can be filed not only in DRT having jurisdiction wheremortgaged property is situated but also in DRT havingjurisdiction where branch of Bank/Financial Institution whichhas distributed loan is situated as well as in all DRTs whichwould have jurisdiction in terms of Section 19(1) of DRTAct read with Rule 6 of DRT Rules, Full bench wasconstituted—Plea taken, DRT Delhi has jurisdiction by virtueof provisions of Section 19(1) (c) of DRT Act read with Rule6(d) of DRT Rules to entertain and decide such appeal—Percontra, counsel for bank supporting impugned order,contended that it is rather in interest of Bank also, ifjurisdiction of DRT Delhi is permitted to be invoked and onsame parity, bank should also have freedom to approach ChiefMetropolitan Magistrate at Delhi for assistance for takingpossession of mortgaged property, even if situated outsideDelhi—jurisdiction of DRT before which appeal under Section17 (1) of SARFAESI Act can be filed shall be determined asper DRT Act and Rules made thereunder—Referring toSection 19(1) of DRT Act it was contended that jurisdictionthereunder is of DRT where defendants or any of them residesor carries on business or where cause of action wholly or inpart arises—Event which triggers appeal under Section 11 (1),is action of Authorized Officer of Bank—DRT within whosejurisdiction said Authorized Officer is situated, would have

jurisdiction—Since in present case, Authorized Officer ofRespondent Bank has issued notice to Petitioners from withinjurisdiction of Delhi, DRT having jurisdiction over Delhi wouldDefinitely have jurisdiction to entertain appeal—Rule 6 has beenamended to provide for jurisdiction not only of DRT Whereapplicant is functioning as a Bank or Financial Institution, butalso of DRTs within whose jurisdiction defendants or any ofthem resides or carry on business or where cause of actionwholly or in part arises—Amendment of Rule 6 is afterSARFAESI Act came into force and legislature should bedeemed to have amended Rule to provide for jurisdiction ofDRT qua appeal under section 17 (1) of SARFAESI Act also—Held—Division Bench fell in error in assuming Debt/moneyrecovery proceeding to be initiated by Bank under DRT Actas equivalent to legal proceeding subject whereof is amortgaged property, within meaning of section 16 of CPC—Proceedings referred to in Section 19(1) of DRT Act aremerely proceeding for recovery of debt and not forenforcement of mortgage—Even prior to coming into forceof DRT, Act, Bank, even if a mortgage, was not mandatorily,required to enforce mortgage and which under Section 16 ofCPC could be done only within territorial jurisdiction of Courtwhere mortgaged property was situated and Bank was freeto institute a suit, only for recovery of money and territorialjurisdiction whereof was governed by Section 20 of CPC,containing same principles as in Section 19(1) of DRT Act—Recovery proceeding under DRT Act are equivalent to a suitfor recovery of money before a Civil Court and cannot besaid to be for enforcement of mortgage—Cause of action ofappeal under Section 17(1) of SARFAESI Act is taking overof possession/management of secured asset and which causeof action can be said to have accrued only within jurisdictionof DRT where secured asset is so situated and possessionthereof, is taken over—It is said DRT only which can be saidto be having “Jurisdiction in the matter” within meaning ofSection 17(1) of Act—Exercise of jurisdiction under Section17(1) of SARFAESI Act by DRTs of a place other than wheresecured asset is situated is likely to lead to complexities anddifficulties which are best avoided—There is no provision inDRT Act providing for territorial jurisdiction of appeal underSection 17(1) of SARFAESI Act and question of application

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thereof under Section 17(7) does not arise—Limits ofterritorial jurisdiction described under Section 19(1) of DRTAct cannot be made applicable to Section 17(1) of SARFAESIAct—Section 19(1) of DRT Act is not omnibus provisionqua territorial jurisdiction—It is concerned only with providingfor territorial jurisdiction for applications for recovery of debtsby Bank/Financial Institutions—Same can have no applicationto appeals under Section 17(1) of SARFAESI Act which areto be preferred, not by Banks/Financial Institutions, but againstBanks/Financial Institutions—Use, in section 17(7) ofSARFAESI Act, of words “as far as may be” and “same asotherwise provided in Act” also exclude applicability even ofprinciples contained in Section 19(1) of DRT Act to determineterritorial jurisdiction of appeal under Section 17(7) ofSARFAESI Act—Merely because defendant if were to sue,can sue at place of residence of plaintiff, does not entitleplaintiff to sue at place of his residence if that place wouldotherwise not have territorial jurisdiction—Application underSection 17(1) of SARFAESI Act can be filed only before DRTwithin whose jurisdiction property/secured asset against whichaction is taken in situated and in no other DRT—No errorfound in order of DRT. Delhi holding it to have no jurisdictionto entertain appeal/application under Section 17(1) ofSARFAESI Act, mortgage property against which action istaken being situated at Meerut.

Amish Jain & Anr. v. ICICI Bank Ltd......................377

— Section 13 (2), 14, 17—Transfer of Property Act, 1882—Section 65 A—Respondent No. 2 to 6 availed loans fromICICI Bank by creating equitable mortgage of property inquestion owned by Respondent no. 6 HUF as well as otherimmovable properties and also hypothecation of their movableassets—Since borrowers failed to repay said loan, ICICI Bankapproached DRT by filling two original applications—DRTrestrained Respondent No. 6 from selling or parting withpossession of mortgaged properties—Later, ICICI assignedaforesaid debt and incidental rights together with securityinterest held by it to Respondent no. 1 Bank I.e. KotakMahindra Bank Ltd—Respondent no. 1 Bank initiatedproceeding for recovery by issuing notice under Section 13(2) of SARFAESI Act—HUF filed Securitization Appeal before

DRT—While said Securitization Appeal was pending HUF andpetitioner, despite restrain order, entered into registered leasedeed—Securitization Appeal dismissed by DRT against whichHUF filed appeal before DRAT—In meanwhile HUF andRespondent No. 1 Bank entered into a compromise and movedapplication before DRT—In terms of joint compromise,consent decree passed by DRT—Alleging default in paymentby borrowers, in terms of aforesaid compromise, Respondentno. 1 Bank moved application under Section 14 of SARFESIAct before DRT for seeking assistance in taking possessionof mortgaged properties—Borrowers filed SecuritizationAppeal against same before DRT—DRT declined to grantinterim relief—subsequently writ petition filed before HighCourt wherein borrowers offered to liquidate their dues bybringing in purchasers—High Court dismissed applicationseeking extension of time to sell property observing thatborrowers have not only cheated and misled Respondent no.1 Bank, but have been even tried to over reach this court bynot disclosing to this court that they had created third partyinterest in respect of various portions of mortgagedproperties—In meanwhile, upon motion by Respondent no. 1Bank, Ld. ACMM (Special Acts) appointed a court receiverto take possession of mortgaged properties which includedproperty in question—A notice in respect of taking physicalpossession of secured assets was served upon borrowers bycourt appointed receiver—Petitioner while in possession ofproperty in question filed securitization appeal impugningaforesaid notice which was dismissed by DRT—Petitionerfiled appeal before DRAT alongwith application seeking interimprotection against taking of possession of property in questionby court receiver—DRAT vide impugned order dismissedapplication—Order challenged before High Court—Plea taken,joint application filed before DRT itself recorded thatRespondent No. 1 bank would be entitled to receive leaserental arising out of property in question—Having soconsented, Respondent NO. 1 Bank cannot now take a pleathat tenancy in question was in violation of restrain order—Tenancy had been entered into much prior to compromiseapplication moved by Respondent no. 1 Bank and borroweraccorded its consent and acceptance—Only right ofRespondent no. 1 Bank is to receive rent towards satisfaction

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of outstands of borrowers—Aforesaid tenancy had beenexecuted in ordinary course of management vide a registeredlease deed—Amount of Rs. 4.5 crores referred to as securitydeposit in lease deed had actually been advanced to HUF as aloan, vide a separate agreement, which had to be repaid onexpiry of terms of 36 months—Same was not in nature of apremium and as such tenancy was not in violation of section65 A of T.P. Act—This court itself in civil suit filed bypetitioner herein seeking permanent injunction againstborrowers from dispossessing petitioner from property inquestion was pleaded to grant interim protection to petitioner-Per contra plea taken, tenancy relied upon by petitioner, is inutter violation of restrain order of DRT—Same has beenentered into between petitioner and HUF in collusion, with aclear fraudulent intent to avoid/defeat request of RespondentNO. 1 Bank and siphon mortgaged property—Consideringterms and conditions of agreements executed betweenpetitioner and HUF, transaction of Rs. 4.5 Crores thoughnomenclature as a loan, was in true sense, a premium paid inrespect of property in question and thus protection of section65 A is not available to petitioner—In terms of jointcompromise entered into between Respondent no. 1 Bank andborrworrers, symbolic possession of mortgaged propertiesalready vested with Respondent No. 1 Bank and physicalpossession of same could be taken by per its own discretionas and when it deemed so fit—Tenancy of premises expiredon 18.9.12 and possession being taken over by RespondentNo 1 Bank after passing of impugned order, petitioner hereinhas no legs to seek any interim protection in respect ofproperty in question—Held—DRT vide order dated 2.5.2003had in clear terms restrained borrowers from creating and thirdparty interest in mortgaged properties, including property inquestion—Said order was never modified or set aside in anyproceedings thereafter—However, despite same, tenancy withrespect to property in question came to be entered intobetween petitioner herein and HUF—This clearly demonstratesfraudulent conduct, not only of borrowers, but also ofpetitioner who colluded with borrowers—Said tenancy wasnot only in utter disregard of DRT’s order but was also inthe teeth of provisions of Section 65 A of T.P. Act which

provides for mortgagor’s power to lease mortgaged property,which is in its lawful possession—A perusal of same, revealsa flow of consideration of Rs. 4.5 Crores under guise andgarb of a loan and security deposit, which was much morethan otherwise agreed rental amount—As per terms of tenancyand loan agreement not only would said amount fetch amonthly interest of 2.92% to petitioner but in event of defaultof payment of same, petitioner would have right to disposeof leased premises through a public auction and recoveramount—Considering conduct and inability of borrowers topay of its principal loans/facilities, and conditions of said leaseand loan agreement, were in effect that of a virtual sale—Saidamount was nothing but a premium paid in respect of saidproperty and as such violative of Section 65 A of Act—Therefore, protection of said provision would not be availableto tenancy in question—Next submission of petitioner thatcompromise entered into between borrowers and respondentbank no. 1 provided for a deemed approval to factum oftenancy in question and as such cannot be overridden bymortgage created in favour of respondent no .1 bank, alsohas no merit whatsoever—Said compromise also gavesymbolic possession of mortgaged properties to respondentno. 1 Bank with discretionary right to take possession as andwhen it deemed fit—Even if one were to accept plea ofpetitioner, that compromise (decreed by DRT) accorded adeemed approval to tenancy in question and in effect over-rid earlier restrain order of DRT, same would have to besubject and conditional to aforesaid possessory rights ofrespondent no. 1 Bank which formed a part of samecompromise—For this reason as well, said submission ofpetitioner also stands rejected—Moreover, Tenancy inquestion also stands extinguished and possession restored torespondent no. 1 Bank—In view of same, nothing survivesin present petition—Grievances, if any, that petitioner mayhave, in view of recovery of possession by respondent no. 1bank before expiry of tenancy in question are matters whichare to be raised in independent appropriate proceedings andcan only be against HUF-Since respondent no. 1 Bank has noprivity of contract with petitioner, petitioner cannot claim anyrelief against respondent no. 1 Bank—Present petition

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dismissed with costs.

Harsh Vardhan Land Limited v. Kotak MahindraBank Limited & Ors.....................................................413

SERVICE LA W—Administrative Law—Consequential Benefits—Issue involved, whether the direction given by the CentralAdministrative Tribunal holding that petitioners would beentitled to all consequential benefits from the date ofregularization would include payment of arrears of pay, afterfixation of pay in the regular pay scale, from the Hon’bleSupreme Court in the case of Commissioner of Hon’bleHousing Board vs C. Muddaiah, AIR 2007 SC 3100, theanswer has to be in affirmative and consequential benefitswould include past wages as well.

S.C. Bhagat & Anr. v. UOI & Anr. ..........................147

— Disciplinary Proceedings—Competence of Enquiry Officer(EO) challenged for the first time in the proceedings beforethe Central Administrative Tribunal, on the ground that the EOwas subordinate in rank to the complainant, as such notindependent—Held, since the EO was SHO, Paharganj whilethe Complainant was ACP Daryaganj, it cannot be said thatthe EO was directly subordinate to the complainant and sincein the course of the departmental enquiry, no objection wasraised as regards the independence of the EO, contention ofpetitioner not tenable.

Rajesh Kumar Meena v. Commissioner ofPolice & Ors.................................................................254

— Constitution of India, 1950—Article 14—Notice issued topetitioner asking too show cause his habitual absence—Petitioner did not dispute his absence as detailed in show causenotice, but merely pleaded that he had been taking leaveexplaining his domestic problems and said leave was approvedwithout pay and ought not be treated unauthorized absence—Another notice issued by respondent to petitioner to showcause as to why he should not be deemed to have voluntarilyabsented himself from work since month of October, 2007when his leave had never been approved as claimed by himin earlier reply—Petitioner submitted a reply to said show

cause notice stating that leave was taken verbally; he had appliedfor regularization of his absence in terms of circulars of year,1997-1998 of respondent and he was not allowed to signattendance register for last 20 months and denied he had beenabsenting from October, 1997—Respondent vide impugned orderheld petitioner to have voluntarily left services within meaningof Rule 24.96—Order of termination challenged before HighCourt—Plea taken, Rule aforesaid is violative of Article 14 ofConstitution of India as it empowers respondent Corporation toterminate service of employee without giving any chargesheetor opportunity of being heard and without holding any enquiryresulting in violation of principles of natural justice and order oftermination also challenged on merits—Held—In so far challengeto Rule 24.9 of NTPC services Rules is concerned, validity ofsaid Rule was upheld by judgment of Division Bench—Regularisation of leave vide circulars of year, 1997-1998 wasat best till issuance thereof—Even if it were to be held thatunauthorized absence of petitioner till end of April, 1998 stoodregularized, second show cause notice was issued after one yearand appellant has been unable to show any application for leaveor sanction thereof for said one year—It is inconceivable thatemployee who though working, is not being permitted to markthis attendance for one year, would not take up matter—Neitherany plea has been raised regarding proof of petitioner havingworked during said time nor counsel has any knowledge—Petitioner has also not collected his pay from month of October,1997 onwards and no demand thereof was made—There is noperversity in application of Rule 24.9 qua petitioner and in deemingpetitioner to have abandoned his employment by remainingunauthorizedly absent from duty for more than consecutives90 days.

Amarjeet Singh v. The Management of NationalThermal Power Corporation Ltd..................................441

SPECIFIC RELIEF ACT, 1963—Section 12—Plaintiff filed suit forspecific performance qua receipt-cum-agreement of plot inPritampura, Delhi—As per plaintiff, suit property was owned bybrothers i.e. defendant no. 1 & 2—Defendant no. 1 entered intoreceipt-cum-agreement with plaintiff and agreed to sell not onlyhis half portion of property, but also half portion belonging to

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defendant no. 2—Defendant no. 1 had assured to obtainconsent of defendant no. 2 for sale of property—However,defendant no. 1 failed to fulfill terms of agreement and plaintiffpreferred suit alleging defendants committed breach of contractand refused to sell suit property—On other hand, defendantno. 1 pleaded that plaintiff was guilty of breach of contractas he failed to arrange money for balance sale consideration—Moreover, agreement to sell stood frustrated becausedefendant no. 2 did not agree to sell his portion to plaintiff.Held—Specific performance can be granted of a part of thecontract in terms of sub-sections (2) to (4) of Section 12, ifplaintiff give up his claim with respect to that portion of theagreement to sell which cannot be performed.

Sushil Jain v. Meharban Singh & Ors......................186

— Section 31—Plaintiff filed suit seeking partition of suitproperty situated in Vivek Vihar, New Delhii—Defendant no.2, brother of plaintiff and defendant no. 1 moved applicationu/o 12 Rule 6 Plaintiff supported the application whereasdefendant no. 1 contested the same—As per plaintiff, he,defendant no. 2 and defendant no. 3 (the father) had enteredinto agreement recording that property was joint property ofall the parties—Said agreement was followed by familysettlement stating that all parties had 1/4th share in suit propertyand an affidavit of defendant no. 1 of same date to sameeffect—Defendant no. 1 did not deny execution of saiddocuments but alleged misrepresentation and legalineffectiveness of documents which required trial and couldnot be disposed of by applying provisions of Order 12 Rule6. Held—There are two types of documents; one is void andsecond is voidable documents. For void documents, any suitfor cancellation u/s 31 of Specific Relief Act is not requiredto be filed—whereas voidable documents have to be cancelledas per Section 31 of the act and a suit could be filed within 3years as per Article 59 of Limitation Act.

Suresh Srivastava v. Subodh Srivastava and Ors.......272

TRANSFER OF PROPERTY ACT, 1882—Section 53A—Plaintiff Company became owner of suit property videnotification issued by Government in the year 1984, which

was acquired by Government in the year 1972—Defendant,a Public trust created by plaintiff under name and style of M/s Ganesh Scientific Research Foundation was allowed byplaintiff to run its office in part of suit premises—However,no lease deed was executed in favour of defendant Trust—Defendant failed to vacate portion in its possession despite itwas asked to do by plaintiff and accordingly plaintiff had putits lock on there rooms and two big halls, in premises—Plaintiffs, then filed suit seeking possession of premises fromdefendant and also pressed for damaged—Plaintiff moved anapplication U/o 39 Rule 10 seeking direction for defendant todeposit charges for use and occupation of property and urged,defendant had no right to continue in possession of portionoccupied by it, without consent of plaintiff company—defendant Trust defended suit and claimed that it was lawfultenant under plaintiff and relief upon various minutes ofmeetings of Board of Trusties of plaintiff company as wellas defendant Trust—It also relied upon S-53A of Act. Held:Section 53A of Transfer of Properties Act comes into playwhen there is a contract between the parties for transfer ofany portion of suit property on leasehold or any other basis.There absolutely was no contract between the plaintiff andthe defendant for transfer of any portion of suit property eitheron leasehold or any other basis.

Hindustan Vegetable Oil Corporation Ltd. v.Ganesh Scientific Research Foundation.....................368

— Section 65 A—Respondent No. 2 to 6 availed loans fromICICI Bank by creating equitable mortgage of property inquestion owned by Respondent no. 6 HUF as well as otherimmovable properties and also hypothecation of their movableassets—Since borrowers failed to repay said loan, ICICI Bankapproached DRT by filling two original applications—DRTrestrained Respondent No. 6 from selling or parting withpossession of mortgaged properties—Later, ICICI assignedaforesaid debt and incidental rights together with securityinterest held by it to Respondent no. 1 Bank I.e. KotakMahindra Bank Ltd—Respondent no. 1 Bank initiatedproceeding for recovery by issuing notice under Section 13(2) of SARFAESI Act—HUF filed Securitization Appeal beforeDRT—While said Securitization Appeal was pending HUF and

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petitioner, despite restrain order, entered into registered leasedeed—Securitization Appeal dismissed by DRT against whichHUF filed appeal before DRAT—In meanwhile HUF andRespondent No. 1 Bank entered into a compromise and movedapplication before DRT—In terms of joint compromise,consent decree passed by DRT—Alleging default in paymentby borrowers, in terms of aforesaid compromise, Respondentno. 1 Bank moved application under Section 14 of SARFESIAct before DRT for seeking assistance in taking possessionof mortgaged properties—Borrowers filed SecuritizationAppeal against same before DRT—DRT declined to grantinterim relief—subsequently writ petition filed before HighCourt wherein borrowers offered to liquidate their dues bybringing in purchasers—High Court dismissed applicationseeking extension of time to sell property observing thatborrowers have not only cheated and misled Respondent no.1 Bank, but have been even tried to over reach this court bynot disclosing to this court that they had created third partyinterest in respect of various portions of mortgagedproperties—In meanwhile, upon motion by Respondent no. 1Bank, Ld. ACMM (Special Acts) appointed a court receiverto take possession of mortgaged properties which includedproperty in question—A notice in respect of taking physicalpossession of secured assets was served upon borrowers bycourt appointed receiver—Petitioner while in possession ofproperty in question filed securitization appeal impugningaforesaid notice which was dismissed by DRT—Petitionerfiled appeal before DRAT alongwith application seeking interimprotection against taking of possession of property in questionby court receiver—DRAT vide impugned order dismissedapplication—Order challenged before High Court—Plea taken,joint application filed before DRT itself recorded thatRespondent No. 1 bank would be entitled to receive leaserental arising out of property in question—Having soconsented, Respondent NO. 1 Bank cannot now take a pleathat tenancy in question was in violation of restrain order—Tenancy had been entered into much prior to compromiseapplication moved by Respondent no. 1 Bank and borroweraccorded its consent and acceptance—Only right ofRespondent no. 1 Bank is to receive rent towards satisfaction

of outstands of borrowers—Aforesaid tenancy had beenexecuted in ordinary course of management vide a registeredlease deed—Amount of Rs. 4.5 crores referred to as securitydeposit in lease deed had actually been advanced to HUF as aloan, vide a separate agreement, which had to be repaid onexpiry of terms of 36 months—Same was not in nature of apremium and as such tenancy was not in violation of section65 A of T.P. Act—This court itself in civil suit filed bypetitioner herein seeking permanent injunction againstborrowers from dispossessing petitioner from property inquestion was pleaded to grant interim protection to petitioner-Per contra plea taken, tenancy relied upon by petitioner, is inutter violation of restrain order of DRT—Same has beenentered into between petitioner and HUF in collusion, with aclear fraudulent intent to avoid/defeat request of RespondentNO. 1 Bank and siphon mortgaged property—Consideringterms and conditions of agreements executed betweenpetitioner and HUF, transaction of Rs. 4.5 Crores thoughnomenclature as a loan, was in true sense, a premium paid inrespect of property in question and thus protection of section65 A is not available to petitioner—In terms of jointcompromise entered into between Respondent no. 1 Bank andborrworrers, symbolic possession of mortgaged propertiesalready vested with Respondent No. 1 Bank and physicalpossession of same could be taken by per its own discretionas and when it deemed so fit—Tenancy of premises expiredon 18.9.12 and possession being taken over by RespondentNo 1 Bank after passing of impugned order, petitioner hereinhas no legs to seek any interim protection in respect ofproperty in question—Held—DRT vide order dated 2.5.2003had in clear terms restrained borrowers from creating and thirdparty interest in mortgaged properties, including property inquestion—Said order was never modified or set aside in anyproceedings thereafter—However, despite same, tenancy withrespect to property in question came to be entered intobetween petitioner herein and HUF—This clearly demonstratesfraudulent conduct, not only of borrowers, but also ofpetitioner who colluded with borrowers—Said tenancy wasnot only in utter disregard of DRT’s order but was also inthe teeth of provisions of Section 65 A of T.P. Act which

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provides for mortgagor’s power to lease mortgaged property,which is in its lawful possession—A perusal of same, revealsa flow of consideration of Rs. 4.5 Crores under guise andgarb of a loan and security deposit, which was much morethan otherwise agreed rental amount—As per terms of tenancyand loan agreement not only would said amount fetch amonthly interest of 2.92% to petitioner but in event of defaultof payment of same, petitioner would have right to disposeof leased premises through a public auction and recoveramount—Considering conduct and inability of borrowers topay of its principal loans/facilities, and conditions of said leaseand loan agreement, were in effect that of a virtual sale—Saidamount was nothing but a premium paid in respect of saidproperty and as such violative of Section 65 A of Act—Therefore, protection of said provision would not be availableto tenancy in question—Next submission of petitioner thatcompromise entered into between borrowers and respondentbank no. 1 provided for a deemed approval to factum oftenancy in question and as such cannot be overridden bymortgage created in favour of respondent no .1 bank, alsohas no merit whatsoever—Said compromise also gavesymbolic possession of mortgaged properties to respondentno. 1 Bank with discretionary right to take possession as andwhen it deemed fit—Even if one were to accept plea ofpetitioner, that compromise (decreed by DRT) accorded adeemed approval to tenancy in question and in effect over-rid earlier restrain order of DRT, same would have to besubject and conditional to aforesaid possessory rights ofrespondent no. 1 Bank which formed a part of samecompromise—For this reason as well, said submission ofpetitioner also stands rejected—Moreover, Tenancy inquestion also stands extinguished and possession restored torespondent no. 1 Bank—In view of same, nothing survivesin present petition—Grievances, if any, that petitioner mayhave, in view of recovery of possession by respondent no. 1bank before expiry of tenancy in question are matters whichare to be raised in independent appropriate proceedings andcan only be against HUF-Since respondent no. 1 Bank has noprivity of contract with petitioner, petitioner cannot claim anyrelief against respondent no. 1 Bank—Present petition

dismissed with costs.

Harsh Vardhan Land Limited v. Kotak MahindraBank Limited & Ors.....................................................413

URBAN LAND (CEILING AND REGULATIONS) ACT, 1976—Plaintiff filed suit for declaration and possession with respectto plot situated in Karol Bagh New Delhi—Plaintiff also prayedfor cancellation of sale deed executed in favour of defendantno. 1 & 2 by defendant no. 3 acting as Power of AttorneyHolder of plaintiff as well as subsequent sale deed executedby defendant no. 1 & 2 in favour of defendant no. 4—As perplaintiff, he was perpetual lessee of suit property under leasedeed executed by Delhi Improvement Trust, in his favour andhe entered into two agreements to sell with defendants no. 1& 2 for considering which he received—Plaintiff also executedtwo Power of Attorneys qua the said property—But plaintiffclaimed that transaction encompassed in Agreements to sellwas void and unenforceable in law because of the provisionsof the Act. Held—An agreement which is against law is notnecessarily illegal and void, In certain cases, a person canwave the application of law in his favour. If such a personreceives benefit/consideration under agreements in his favourand thus, he waives right of any illegality in those agreementson account of violation of provisions of Act, Such personcannot be allowed to blow hot and cold at same time i.e. ifhe takes benefit of the agreement subsequently cannot argueotherwise.

Prem Raj v. Babu Ram Gupta & Others.................293

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evidence to be relied on, provided it was proved thatsame was voluntary and truthful and the victim was ina fit state of mind—Doctor examining (PW6) accuseddid not make endorsement on MLC that deceased fitto make statement—Certificate on MLC relied upon asDying Declaration not scribed or signed by doctor—Author of endorsement on MLC not produced aswitness—Nothing to indicate that history in MLC givenby patient—MLC recorded very casually—Endorsementon MLC (Ex. PW 6/A) not a dying declaration—Dyingdeclaration (Ex. PW8/B) recorded by Head ConstablePW 8 was in language which cast doubt, whetherstatement recorded on dictation of deceased—Medication administered to deceased not on record—No name or indentify of person who endorsed fitnesson statement Ex. PW8/B brought on record norexamined—No time of endorsement mentioned—Noevidence of fitness of deceased when Ex. Pw 8/Bscribed by PW-8—Second statement Ex. PW8/B not inwords of deceased –No certification of fitness orname of doctor who examined—Statement did notbear signature or thumb impression of deceased—IOhad 9 days while the deceased was in hospital to gethis statement recorded by Magistrate, however madeno efforts—Serious infirmities in statements recorded—Material contradictions with regard to time ofoccurrence, identify of assailants and manner in whichdeceased attacked between two Dying Declaration—Events projected in Dying Declarations did not findmention in statement of witness—Manner in whichdeceased received injuries, doubtful—No proximity oftime between statements attributed to the deceasedand his death—Contradiction in statements of recoverywitnesses—No explanation about no clothes of thedeceased being recovered from the spot—Not provedhow deceased was transported from place ofoccurrence to site of his recovery—Controversy with

ILR (2012) 6 DELHI 1CRL. A.

PRABHASH SHARMA & ANR. ….APPELLANTS

VERSUS

STATE ….RESPONDENT

(GITA MITT AL AND V.K. SHALI, JJ.)

CRL. A. NO. : 5/2002 DATE OF DECISION: 01.06.2012

Indian Penal Code, 1860—Section 302/34—CriminalCode, 1973—Section 162(2)—Circumstantial evidence—Dying declaration—As per case of prosecution,deceased was conductor on truck belonging toaccused Prabhash—On morning of incident, deceasedwent to house of accused Prabhash to take wages fortwo months—Deceased compelled to drink liquordespite refusal and thereafter beaten by accusedPrabhash and other two accused Manoj and Jaibir—Accused Manoj picked up two plastic canes containingacid and poured on deceased while deceased held byother two accused—Deceased became unconscious—When gained consciousness he found himself nakedin injured condition near his jhuggi—Brother ofdeceased (PW 1) took him to hospital—AccusedPrabhash arrested—Two statements of deceasedrecorded by police constable (PW-8)—Two otheraccused subsequently arrested—Accused Manoj gotrecovered plastic cane—Deceased died after 9 daysof incident—Cause of death was pneumonia andsepticemia consequent to burn injuries—T rial courtconvicted accused Prabhash and Manoj u/s 302/34—Accused Jaibir acquitted—Held, well settled principlethat dying declaration was a substantive piece of

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regard to identify of kerosene cane recovered anddelay in sending same for forensic examination—Noarrest memo produced—Medical evidence andsurrounding circumstances altogether cannot beignored and kept out of consideration by placingexclusive reliance upon Dying Declaration—Noevidence to show that accused persons last seenwith deceased—Evidence reflects failure of IO toexamine eye—witnesses/public witnesses—In casesof circumstantial evidence, burden on prosecution isalways greater—No evidence with regard tocommonality of intention to cause death—In cases ofcircumstantial evidence, inculpatory facts proved onrecord must be incompatible with the innocence ofthe accused and incapable of explanation—It is settledlaw that if there is some material on record which isconsistent with the innocence of the accused whichmay be reasonably true even through it is not positivelyproved to be true, the accused would be entitled toacquittal—Appeal Allowed.

Important Issue Involved: Dying declaration is asubstantive piece of evidence to be relief on if it is provedthat same was voluntary and truthful and the victim was ina fit state of mind.

[Ad Ch]

APPEARANCES:

FOR THE APPELLANTS : Mr. Padam Singh and Mr.Bhanupratap Singh, Advocates.

FOR THE RESPONDENT : Ms. Ritu Gauba, APP

CASES REFERRED TO:

1. Mrinal Das & Ors. vs. State of Tripura AIR 2011 SC3753.

2. Sunder Singh vs. State of Uttaranchal, (2011) 1 SCC(Cri) 114.

3. Dhan Singh vs. State of Haryana (2011) 1 SCC (Cri)352.

4. Jarnail Singh vs. State of Punjab (2011) 1 SCC (Cri)1191.

5. State of Uttaranchal vs. Krishna Master (2011) 1 SCC(Cri) 923.

6. Dhan Singh vs. State of Haryana (2011) 1 SCC (Cri)352.

7. Babu vs. State of Kerala, 2010 AIR SCW 5105.

8. Dinesh Borthakur vs. State of Assam. (2008) 5 SC 697.

9. Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, A.P.AIR 2008 SC 19.

10. Shaikh Rafiq & Anr. vs. State of Maharashtra (2008) 3SCC 691.

11. Vinay D. Nagar vs. State of Rajasthan, AIR 2008 SC1558.

12. Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, AIR2008 SC 19.

13. State of Rajasthan vs. Wakteng AIR 2007 SC 2020.

14. State of Karnataka vs. Sri Balu Ram Kalligaddi, 2004(3) RCR (Cri) 569.

15. Kanti Lal vs. State of Rajasthan, (2004) 10 SCC 113 :2004 SCC (Cri) 1760.

16. Cherlopalli Cheliminabi Saheb vs. State of AndhraPradesh, (2003) 2 SCC 571 : 2003 SCC (Cri) 659.

17. Patel Hiralal Joitaram vs. State of Gujarat, (2002) 1SCC 22.

18. Diwan Singh vs. State, Crl.Appeal No. 797/2001.

19. Laxmi vs. Om Prakash & Ors., (2001) AIR SCW 2481.

20. Des Raj @ Dass vs. The State 2000 CriLJ 2083.

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21. Gulam Hussain & Anr. vs. State of Delhi JT 2000 (8) SC466.

23. Sudhakar & Anr. vs. State of Maharashtra, (2000) 6SCC 671.

24. State of Rajasthan vs. Teja Ram; (1999) 3 SCC 507.

25. Jai Karan vs. State of NCT, 1999 CriLJ 4529.

26. Paras Yadav & Ors. vs. State of Bihar, (1999) 2 SCC126.

27. Afsar Hussain vs. NCT of Delhi 1998 II AD (Del.) 451.

28. Preetam Singh vs. The State (1998) 1 JCC Delhi 94.

29. State of Punjab vs. Sarup Singh (1998) 1 JCC (SC) 57.

30. Rehmat vs. State of Haryana, AIR 1997 SC 1526.

31. D.K. Basu vs. State of West Bengal 1997 CriLJ 743.

32. State of Orissa vs. Parasuram Naik (1997) CriLJ 4404.

33. Rattan Singh vs. State of H.P., (1997) CriLJ 833 (SC).

34. Bhagirath vs. State of Haryana AIR 1997 SC 234.

35. Kanchy Komuramma vs. State of A.P. (1995) 4 SCC 118.

36. State of U.P. vs. Ashok Kumar Srivastava (1992) 2 SCC86.

37. Surender Singh vs. State 40(1990) DLT 238.

38. `State of Punjab vs. Amarjeet Singh JT 1988 (3) SC 537.

39. Kaushalya & Ors. vs. State, (1987) 3 Crimes 747.

40. Luxman Kumar vs. State AIR 1986 SC 250.

41. Jagdish Lal Malhotra vs. The State (1984) 1 Crimes 1.

42. Sharad Birdhichand Sarda vs. State of Maharashtra 1984CriLJ 1738.

43. Darshan Singh alias Bhasuri & Ors. vs. State of Punjab;(1983) 2 SCC 411.

44. Darshan Singh vs. State of Punjab : 1983 CriLJ 985.

45. Mohar Singh and Ors. etc. vs. State of Punjab: 1981

CriL J998.

46. Padman Meher vs. State of Orissa 1980 Supp. SCC 434.

47. Bahadul vs. State of Orissa (1979) CriLJ 1075 : AIR1979 SC 1262.

48. Dalip Singh & Ors. vs. State of Punjab, (1979) 4 SCC332.

49. K. Ramachandra Reddy & Anr. vs. The Public Prosecutor,1976 CriLJ 1548.

50. Mannu Raja vs. State of M.P, (1976) 3 SCC 104.

51. Munnu Raja and Anr. vs. The State of Madhya Pradesh- 1976 CriLJ 1718.

52. Balaka Singh & Ors. vs. The State of Punjab, AIR 1975SC 1962.

53. Balak Ram vs. State of U.P., (1975) 3 SCC 219.

54. Rajik Ram vs. Jaswant Singh Chauhan; AIR 1975 SC667.

55. Shivaji Sahabrao Bobade vs. State of Maharashtra(Check), (1973) 2 SCC 793.

56. Lallubhai Devchand Shah & Ors. vs. The State of GujaratAIR 1972 SC 1776.

57. Tapinder Singh vs. State of Punjab 1970 CriLJ 1415.

58. Chinnavalayan vs. State of Madras 1959 (1) MLJ 246.

59. Tahsildar Singh & Anr. vs. State of Uttar Pradesh) AIR1959 SC 1012.

60. Khushal Rao vs. State of Bombay AIR 1958 SC 22.

61. Bhagwan Das vs. State of Rajasthan [1957] 1 SCR 854.

62. Dalip Singh vs. State of Punjab [1954] 1 SCR 145 :[1954] 1 SCR 145.

RESULT: Appeal Allowed.

GITA MITTAL, J.

1. The appellants have assailed the judgment dated 5th December,

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2001 finding them guilty of commission of offences under Section 302read with Section 34 of the IPC and the order of sentence dated 6thDecember, 2001 whereby they have been sentenced to imprisonment forlife as well as fine.

2. The instant case relates to an alleged incident on the 19th of July,1997 in which one Mohd Rustam (since deceased) was allegedly beatenand burns inflicted by pouring acid on his person resulting in his deathon 28th July, 1997.

3. It was the case of the prosecution that deceased Mohd Rustam,a resident of WZ 85, D-273, Amar Park, Zakhira, Delhi, was a conductorof Truck No.RG 14-A-5518 belonging to Prabhash Sharma - owner ofPrabhash Road Lines, Amar Park, Zakhira, Delhi. At about 9.00 clock on19th July, 1997, he is alleged to have gone to Shri Prabhash Sharma athis residence in the Karan Memorial Public School, Zakhira (near RamKanta) to take his wages for two months. When Mohd Rustam reachedthe spot, Shri Prabhash Sharma, his brother Manoj and a truck driverJaibir were present there. Mohd Rustam asked his employer (‘maalik’)Prabhash Sharma for the wages for two months at which PrabhashSharma asked him to sit and that he would be given the money. He wascompelled to drink liquor despite refusal and thereafter all three (PrabhashSharma, Manoj & Jaibir) started beating him. Then Manoj is alleged tohave picked up a two litre plastic can containing acid and, while PrabhashSharma as well as Jaibir are alleged to have held Mohd Rustam, Manojpoured the acid over him. As a result Mohd Rustam started havingburning sensation on his body, so much so that he became unconsciousand fell down. He regained consciousness in the morning and found thathe was lying naked near his jhuggi in an injured condition. His brotherMohd Humayun thereafter took him to the Ram Manohar Lohia Hospital.

4. The incident as placed by the prosecution comes to an end in thecourtyard of the Karan Memorial Public School where, after, theprosecution alleges, that Manoj ran away from the spot, throwing the canon the roof of Janta Dharam Kanta while fleeing.

5. The other two accused persons Prabhash Sharma and Jaibir arealso alleged to have also run away from the spot.

6. The prosecution examined Mohd Humayun as PW 1 (brother of

the injured Mohd. Rustam) who stated that he was residing at WZ 194,Madipur, Delhi in the premises of his employer which he had taken onrent. He has stated that on 20th July, 1997 while he was in his exportfactory in village Madipur, Delhi, he had received a telephonic messagethat his brother Mohd Rustam was lying in an injured condition at AmarPark, Zakhira and someone had caused hurt to him by pouring acid onhis person. He had gone to the spot where he saw his brother lyingunconscious in an injured condition. A crowd of 10-15 people weregathered around him. Mohd Humayun removed his brother to the RMLHospital in a three wheeler vehicle and got him admitted there. Afterabout half an hour of the injured having been admitted to the hospital, thepolice of the police station Moti Nagar reached there.

7. At the Ram Manohar Lohia Hospital the injured was examined byDr. Vasanthi Ramesh-PW 6 at 9.15 a.m. and his Medical Legal Case(‘MLC. for short) prepared, which has been proved on record as Exh.PW6/A.

8. The police intervention commenced upon telephonic informationat 9.30 a.m. given by the Duty Constable Rajinder Singh at the RMLHospital to Ct. Nirmala at the police station Moti Nagar upon which DDNo.4A [Exhibit PW 8/A has been recorded by her. DD No. 4A recordsthat information was received that Mohd Humayun had got his brotherMohd Rustam admitted in the hospital with injuries from pouring of acidon him; and that Ct. Rajinder Singh had requested that the police officerbe sent to the hospital.

9. DD 4A records that the information was recorded on theroznamacha and copy was handed over to Head Constable RamphalSingh (PW 8) at about 9.30 a.m. by the duty officer. He thereafterproceeded to RML Hospital accompanied by Ct. Vinod Kumar (PW5).

10. PW 5 has stated that he left the hospital for the police stationwith the Tehrir at about 11.30 a.m. and reached the police station atabout 12.10 a.m.

11. At the police station, it appears that based on Exh.PW 8/B, DDNo.7A was recorded by police station Moti Nagar at 12.10 p.m. on 28thJuly, 1997 and FIR No.387/1997 was registered under Section 324 ofthe Indian Penal Code. The witness states that he remained in the police

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station for about 15 minutes; that thereafter at about 12.30 p.m., hejoined PW 8 at the alleged place of occurrence at Karan Memorial PublicSchool and handed over the rukka and the copy of the FIR No.387/97to HC Ramphal who was already at the spot.

12. While PW 5-Ct. Vinod Kumar went to the police station, PW8-HC Ram Phal Singh states that he recorded the statement of MohdHumayun at the RML Hospital, joined him (Mohd Humayun) in hisinvestigation and went with him to the Karan Memorial School. PW 8 hasstated that he prepared the site plan (Exh.PW 8/E) of the spot at theinstance of Mohd Humayun.

13. PW 5 Ct. Vinod Kumar, however, does not mention that MohdHumayun was present at the Karan Memorial School. PW5 hascorroborated HC Ramphal so far as the location and the existence of thevarious schools and firms at and near the site in question is concerned.

14. PW 5 and 8 have stated that thereafter a secret informer metthem on 20th July, 1997 on the main road in front of the Karan MemorialSchool and informed them that one of the three persons who had thrownacid on Mohd Rustam was taking tea at the tea shop near the RamDharam Kanta. PW 5 has further stated that Prabhash Sharma wasapprehended on being pointed out by the informer. Sh. Prabhash Sharmagave a disclosure statement (Exhibit PW 5/B) and on his pointing out, amemo (Exhibit 5/C) was prepared. The other accused persons could notbe located. Shri Prabhash Sharma was enlarged on bail in the policestation.

15. Another piece of evidence brought on record is a secondstatement attributed to the deceased (Exhibit PW 8/G as having beenmade to HC Ramphal Singh at about 3 p.m. on 20th July 1997 itself. Wefind that in the trial court record, a photocopy of the page of the casediary wherein HC Ramhal Singh has written this second statement attributedto Mohd Rustam has been exhibited as Exhibit PW 8/G.

16. PW 8 HC Ramphal Singh states that he undertook furtherinvestigation in the case only on 24th July, 1997 for which purpose heleft the police station at about 4 p.m. accompanied by PW 5 Ct. VinodKumar when efforts to apprehend the other accused were made. On 24thof July, 1997, these police officers found the accused Prabhash Sharma

at a tea shop alongwith two other persons whose identity was disclosedas Manoj Kumar and Jaibir. The tea shop was proximate to the place ofoccurrence. These persons were interrogated and disclosure statements(Exhibit PW 5/K and G) were recorded; they were arrested and personalsearches effected.

17. PW 8-HC Ramphal Singh has deposed that after his arrest on24th July, 1997, Manoj Kumar had made a disclosure statement (ExhibitPW-5/J) pointed out to the roof of Janta Dharam Kanta and got recovereda plastic can of 2 ltr capacity which had a handle with a print ofSundrop/Sunflower and a picture of a child. He states that the same wasgiving smell of acid, that the can was sealed with the seal of RPS andtaken into possession vide recovery memo Exhibit PW 5/K.

18. It is in evidence that after nine days of hospitalisation, MohdRustam unfortunately expired in the RML hospital at about 8.50 a.m. on28th July, 1997. His death was reported vide DD 9A at 10.15 a.m. tothe police station. The case was then converted into a case under section302 of the Indian Penal Code. The investigation was thereafter handedover to PW-10 Insp. P.P. Singh, the Additional SHO who recorded brieffacts of the case as Exhibit PW 10/A. A request for autopsy was madeby the police on 29th July, 1997.

19. The post-mortem on the body of the deceased was conductedby PW 7-Dr. K.L. Sharma, the then head of the Department of ForensicMedicine, Civil Hospital, Delhi who has proved his report as Exhibit PW-7/A which has recorded the burns which were noticed on the dead bodyby him and a bruise of + cm on the outer part of the left ankle. He hadrecorded that there was no deformity of the ankle joint.

So far as the cause of death is concerned, the doctor has opinedthus:-

“Cause of death was pneumonia and septicaemia consequent toburn injuries. The burns were ante-mortem in nature and werecaused by corrosive chemical. The post-mortem findings wereconsistent of pouring the sulphuric acid over the deceased insupine position by other party as was evident by corrodeddistribution of burn injuries over his body, injury over ankle joint

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was caused by hard blunt object.”

The forensic examination was undertaken in September, 1997 onwhich a report Exhibit PW10/F was obtained from the laboratory.

20. On this material, by an order dated 20th April, 1998, PrabhashSharma, Manoj Kumar and Jaibir were charged “that on 19th July, 1997at 9 p.m. in Karan Memorial Public School, Jakhira, near Ram Kantawithin the jurisdiction of PS Moti Nagar you all, in furtherance of yourcommon intention to cause death, poured acid on the person of MohdRustam as a consequence of which he died on 28th July, 1997 andthereby committed offence of murder punishable U/s 302/34 IPC andwithin cognizance of this court”.

21. The prosecution examined ten witnesses in support of its case.On the evidence led during the trial, the trial judge passed the impugnedjudgment dated 5th December, 2001 holding that the prosecution hadsuccessfully proved charged against Prabhash Sharma and Manoj Kumarunder Section 302 read with Section 34 of the IPC and convicted themfor the same. It was further held that the prosecution had failed toestablish involvement of accused Jaibir beyond the shadow of anyreasonable doubt and that he was entitled to benefit of doubt. AccusedJaibir was accordingly acquitted of the charges under Section 302/34 ofthe IPC and directed to be released, if in custody.

22. Prabhash Sharma and Manoj Kumar were heard on the point ofsentence and by the order dated 6th December, 2001, they were sentencedto imprisonment for life and also to pay fine of Rs.10,000/- each. It wasdirected that in default of payment of fine, they would undergo furtherrigorous imprisonment for a period of one year each. The judgment dated5th December, 2001 and the order on sentence dated 6th December,2001 have been assailed by way of the present appeal.

23. We have heard Mr. Padam Singh and Mr. Bhanu Pratap Singh,learned counsels for the appellants as well as Ms. Ritu Gauba, learnedAPP for the state at length.

24. The above narration would show that the case rested oncircumstantial evidence. Apart from the multiple dying declarationsattributed to the deceased, the prosecution has attempted to establish guilt

of the appellants by alleging recovery of can based on disclosure statement.The statements and the recovery required to be considered in seriatum.However learned counsels for the appellants have vehemently challengednot only the statements attributed to the deceased but also the place ofrecovery of the deceased; making of a disclosure statement; recovery ofthe can. The appellants have also challenged that they were ever arrestedin the manner or in the place on the date when alleged by the prosecution.It has been urged that the prosecution has failed to establish any motiveon the part of the appellants for the crime. So far as the incident isconcerned, it is pointed out that as per the evidence brought on recordby the prosecution, the incident could never have taken place in themanner as alleged. Prolonged submissions have been made to point outseveral missing links in the chain of circumstances which the prosecutionwas required to establish in order to bring home the guilt of the appellants.

The question thus which has to be answered in the presentcase thus is whether the statements attributed to the deceasedwere made by the deceased in a fit state of mind and can be heldto be true and voluntary, admissible under Section 32 of the IndianEvidence Act and can be relied upon to base a conviction of theappellants?

25. We may now consider the primary submission urged by Mr.Padam Singh, learned counsel for the appellant that the statementsattributed to the deceased were never made by him. It is contended thateven if they were, they are unworthy of credence as they fail to satisfythe essential tests which are required to be satisfied before a statementby a person deceased is admissible as a dying declaration and a convictioncan be based on it.

26. So far as the opposition to the present appeal is concerned, Ms.Ritu Gauba, learned APP has urged that Exhibit PW8/B is not the onlystatement attributed to the deceased; that the MLC-Exhibit PW6/A alsocontains a dying declaration by the deceased. Learned APP has drawnour attention to Exhibit PW8/G, a second statement attributed to MohdRustam as having been made on the 20th of July, 1997 to PW-8 HCRamphal Singh. It is urged that each of these was a truthful and voluntarystatement given in full consciousness by the deceased which, coupled

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with the recovery of the can upon the disclosure statement by ManojKumar, and the statement of PW1 Mohd Humayun that the deceased wasan employee of Shri Prabhash Sharma, are sufficient to sustain theimpugned judgment of conviction of the appellant.

27. Before dealing with this contention, we may touch upon thewell settled principles on the issue. The tests which a statement attributedto a dead person has to satisfy before it is admissible in evidence as adying declaration under Section 32 of Evidence Act are laid down in thelandmark judgment of the Supreme Court in AIR 1958 SC 22 KhushalRao vs. State of Bombay which holds the field. In this binding judicialpronouncement, the Supreme Court conducted a review of the relevantprovisions of the Evidence Act as well as judicial precedents of theSupreme Court as well as High Courts in India and laid down the principlesthus :-

“16. On a review of the relevant provisions of the Evidence Actand of the decided cases in the different High Courts in India andin this Court, we have come to the conclusion, in agreementwith the opinion of the Full Bench of the Madras High Court,aforesaid, (1) that it cannot be laid down as an absolute rule oflaw that a dying declaration cannot form the sole basis ofconviction unless it is corroborated; (2) that each case must bedetermined on its own facts keeping in view the circumstancesin which the dying declaration was made; (3) that it cannot belaid down as a general proposition that a dying declaration is aweaker kind of evidence than other piece of evidence; (4) thata dying declaration stands on the same footing as another pieceof evidence and has to be judged in the light of surroundingcircumstances and with reference to the principles governing theweighing of evidence; (5) that a dying declaration which hasbeen recorded by a competent magistrate in the proper manner,that is to say, in the form of questions and answers, and, as faras practicable, in the words of the maker of the declaration,stands on a much higher footing than a dying declaration whichdepends upon oral testimony which may suffer from all theinfirmities of human memory and human character, and (6) thatin order to test the reliability of a dying declaration, the Court has

to keep in view the circumstances like the opportunity of thedying man for observation, for example, whether there wassufficient light if the crime was committed at night; whether thecapacity of the man to remember the facts stated had not beenimpaired at the time he was making the statement, bycircumstances beyond his control; that the statement has beenconsistent throughout if he had several opportunities of makinga dying declaration apart from the official record of it; and thatthe statement had been made at the earliest opportunity and wasnot the result of tutoring by interested parties.”

(Underlining by us)

28. So far as the scrutiny which the court has to conduct and theconclusion which could be drawn, based on a dying declaration isconcerned, in para 17, the court had observed as follows :-

“17. Hence, in order to pass the test of reliability, a dyingdeclaration has to be subjected to a very close scrutiny, keepingin view the fact that the statement has been made in the absenceof the accused who had no opportunity of testing the veracityof the statement by cross-examination. But once the court hascome to the conclusion that the dying declaration was the truthfulversion as to the circumstances of the death and the assailantsof the victim, there is no question of further corroboration. If,on the other hand, the court, after examining the dying declarationin all its aspects, and testing its veracity, has come to theconclusion that it is not reliable by itself, and that it suffers froman infirmity, then, without corroboration it cannot form the basisof a conviction. Thus, the necessity for corroboration arises notfrom any inherent weakness of a dying declaration as a piece ofevidence, as held in some of the reported cases, but from thefact that the court, in a given case, has come to the conclusionthat that particular dying declaration was not free from theinfirmities referred to above or from such other infirmities asmay be disclosed in evidence in that case.”

(Underlining by us)

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29. The issue of reliability of a dying declaration arose forconsideration before the Supreme Court in AIR 2007 SC 2020 State ofRajasthan vs. Wakteng. In this case, the dying declaration was recordedtwo days after the occurrence. The doctor’s certificate about the mentalstate of the deceased was absent. There was also no evidence as to whythe magistrate could not be called for recording the statement. The courtheld that such a declaration would be unreliable. In para 15 of thispronouncement, the Supreme Court observed that “though great solemnityand sanctity is attached to the words of a dying man because a personon the verge of death is not likely to tell lie or to concoct a case so asto implicate an innocent person however it cannot be sufficientlyemphasized that the court has to be careful to ensure that the statementwas not the result of either tutoring, prompting or a product of theimagination. It is, therefore, essential that the court must be satisfied thatthe deceased was in a fit state of mind to make a statement, had clearcapacity to observe and identify the assailant and that he was making thestatement without any influence or rancor. Once, the court is satisfiedthat the dying declaration is true and voluntary, it is sufficient for thepurpose of conviction”.

30. As noticed above, upon being satisfied with regard to theadmissibility of a statement attributed to a deceased, the court mustsatisfy that the person making the declaration was conscious and fit tomake the statement. It is well settled that upon being so satisfied, evenan uncorroborated dying declaration can be the basis for finding aconviction for murder. This proposition is unassailable.

31. The Supreme Court had occasion to consider the entire gamutof law relating to dying declarations; their admissibility and relevance inthe pronouncement reported at (2001) AIR SCW 2481 Smt. Laxmi vs.Om Praksh & Ors. In this case, the prosecution was relying upon fivedying declarations which included, firstly, a statement alleged to havebeen made by the deceased to the ASI on way from the residence ofaccused persons to the hospital; secondly, a statement of the deceasedto the attending doctor; a third dying declaration alleged to have beenmade to the magistrate; a fourth dying declaration made to the investigatingofficer and the fifth declaration, alleged to have been made to her brother.These five statements attributed to the deceased coming from the mouths

of different witnesses were not found worthy of being accepted or actedupon as such dying declarations to base a conviction thereon. It was heldby the Supreme Court that none of these statements could form the basisfor conviction of the accused persons, inter alia, for the reason that therewas no medical evidence to show that the deceased was in a fit state ofmind and physical condition to have made the statement at the relevanttime when it was recorded.

32. In Laxmi vs. Om Prakash & Ors.(supra), the Supreme Courthas pointed out that the admissibility of the dying declaration rests on theprinciple of necessity. The principles thereof have been culled out in thefollowing terms in paras 28 and 29 of the pronouncement which shedvaluable light on the issue under examination in the present case and readas follows:-

“28. A dying-declaration not being a deposition in Court, neithermade on oath nor in the presence of the accused and thereforenot tested by cross-examination is yet admissible in evidence asan exception to the general rule against the admissibility ofheresay. The admissibility is founded on the principle of necessity.The weak points of a dying declaration serve to put the court onits guard while testing its reliability and impose on the court anobligation to closely scrutinise all the relevant attendantcircumstances. [see Tapinder Singh Vs : State of Punjab1970CriLJ1415. One of the important tests of the reliability ofthe dying declaration is a finding arrived at by the Court as tosatisfaction that the deceased was in a fit state of mind andcapable of making a statement at the point of time when thedying declaration purports to have been made and/or recorded.The statement may be brief or longish. It is not the length of thestatement but the fit state of mind of the victim to narrate thefacts of occurrence which has relevance. If the court finds thatthe capacity of the maker of the statement to narrate the factswas impaired or the court entertains grave doubts whether thedeceased was in a fit physical and mental state to make thestatement the court may in the absence of corroborate evidencelending assurance to the contents of the declaration refuse to acton it. In Bhagwan Das vs State of Rajasthan - [1957]1SCR854

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the learned Sessions Judge found inter alia that it was improbableif the maker of the dying declaration was able to talk so as tomake a statement. This Court while upholding the finding of thelearned Sessions Judge held the dying-declaration by itselfinsufficient for sustaining a (SIC)con charge of murder. In KakoSingh @ Surendra Singh Vs State of M.P. 1982 CriLJ 986 :1982 CriLJ 986 the dying declaration was refused to be actedupon when there was no specific statement by the doctor thatthe deceased after being burnt was conscious or could havemade coherent statement. In Darshan Singh Vs . State ofPunjab : 1983 CriLJ 985 this Court found that the deceasedcould not possibly have been in a position to make any kind ofintelligible statement and therefore said that the dying declarationcould not be relied on for any purpose and had to be excludedfrom consideration. In Mohar Singh and Ors. etc. vs. State ofPunjab: 1981 CriLJ 998 the dying declaration was recorded bythe investigating officer. This Court excluded the same fromconsideration for failure of the investigating officer to get thedying declaration attested by the doctor who was alleged to bepresent in the hospital or any one else present”.

(Emphasis supplied)

33. In the background of the legal principles would be appropriateto consider each of the aforesaid statements attributed to the deceasedMohd. Rustam in seriatum. MLC-Exhibit PW 6/A

34. We may begin by examining the MLC made by Dr. VasanthiRamesh who deposed before the court as PW6, being the first statementattributed to the deceased Mohd Rustam in the order of chronology.

35. As per the MLC Exhibit PW6/A, Mohd Rustam was brought tothe hospital by his brother Mohd Humayun at about 9.15 a.m. on 20thJuly, 1997. Dr. Vasanthi Ramesh-PW 6 who has recorded the MedicalLegal Case, has noted that Mohd Rustam was “conscious, oriented andambulant”. His pulse was 90 per minute. So far as the history of theinjuries is concerned, the doctor has noted “alleged h/o acid burn yesterdayat about 4.00 p.m. when his employer poured acid on him. H/o beingbeaten on the lt foot with a cane”. The MLC records that Mohd Rustam

had burns involving the trunk, back and patchy areas of the left arm andfore arm as well as small area of the right fore arm and medial side ofboth thighs. The doctor has also noted a swelling on the left feet associatedwith tenderness. The patient was advised an injection TT IV and x-rayof left foot.

36. On the MLC (Exhibit PW6/A), Dr. Vasanthi Ramesh noted theaddress of Mohd Rustam as W-85 D 273, Amar Park, Zakhira, NewDelhi and mentioned that his brother Mohd Humayun had the sameaddress. The MLC notes the presence of Duty Constable Rajinder Singhin the hospital at the time of recording of MLC.

37. In 1999 CriLJ 4529 Jai Karan vs. State of NCT, the court haddisbelieved the statement of the deceased allegedly recorded by the doctorobserving that the doctor had recorded the alleged statement in Englishand had not read over and explained the contents of the documents tothe deceased; no other person had attested the statement allegedly madeby the deceased before the witness; the doctor who has recorded thestatement had made no endorsement nor was there evidence of any otherwitness that the deceased was in a fit condition for making the statement.

38. In the decision dated 14th September, 2010 of the DivisionBench in Crl.Appeal No. 797/2001 Diwan Singh, it may be noted thatthis court has also rejected the reliability of the statement attributed to thedeceased in the medico legal report as not being credible having regardto the facts and circumstances of the case. In this regard, the courtrelied on the pronouncement of the Supreme Court in (1997) CriLJ 4404State of Orissa vs. Parasuram Naik wherein the doctor had certifiedthat the deceased was conscious. However, it was not certified that shewas in her full senses. In this background, the dying declaration recordedby the doctor was not relied on.

39. In (2004) 10 SCC 113 : 2004 SCC (Cri) 1760 Kanti Lal vs.State of Rajasthan, the court was concerned with the fact that thecondition of the deceased to make the statement was not satisfactorilyrecorded by the person concerned. The court held that the physical aswell as mental fitness of the maker has to be proved by the prosecutionto the satisfaction of the court. In this case, the doctor had neither madeany endorsement nor had issued any certificate that the deceased was fit

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to make a statement.

40. In the present case, Dr. Vasanthi Ramesh has not made anyendorsement nor endorsed any certificate on the MLC that the deceasedwas fit to make a statement. The certificate appearing on the left side ofthe MLC has not been scribed by her nor is it signed by her. Theprosecution has failed to give even the particulars of the author of theendorsement on the left side of MLC Exhibit PW6/A and has not producedany such person before the court.

41. In (2011) 1 SCC (Cri) 114 Sunder Singh vs. State ofUttaranchal, the court found that the dying declaration of the deceasedwas credible, properly recorded, corroborated her oral evidence andcorrectly depicted events. The appellant was named in the FIR whichwas lodged immediately after the occurrence and the medical evidencecorroborated the prosecution version.

In this case, PW-1 had survived the same incident and had namedthe appellant as one of the assailants. In the facts of the case, the courtwas of the view that despite failure to obtain the certification by thedoctor, the declaration by the deceased passed all tests of voluntariness,fit condition of mind of the maker; truthfulness of declaration and thatthe same was uninfluenced by any other factors.

42. It is normally to be found that if the history is given by apatient, the doctor normally records so. It is then referred to as ‘Ptinformant’ (patient informant) or ‘c/o’ (‘complained of’). Sometimesafter recording the history, if given by the patient, the doctor may record‘as stated by the patient’. In the instant case, there is nothing in Exh. PW6/A that even remotely suggests that the history was given by the patient.

43. The history of the patient was given in the morning of 20thJuly, 1979 when the MLC was recorded. Surprisingly in her oral testimonyalmost two years later on the 8th April, 1999, Dr. Vasanthi Ramesh inher examination-in-chief as PW6 stated that the history was given by theinjured. She clarifies in her cross-examination, that she has so stated inher examination in chief because he was conscious and oriented. Clearlya deduction from the MLC on the part of PW 6 – Dr. Vasanthi Rameshin her evidence as these find recorded thereon.

We may now examine the information endorsed by Dr. VasanthiRamesh on the MLC.

44. Essential parameters which are normally noticed and observedby a doctor, especially while recording a MLC upon examining the patientwho is so seriously burnt, have not been mentioned in the MLC-Exh.PW-6/C. As noticed above, the MLC only notes that the pulse of the injuredwas 90 stroke per minute. The doctor has not cared to notice thetemperature, blood pressure and the respiratory rate of the deceasedwhich are basic features of a medical examination. From the examinationconducted by the doctor, the chest examination, anemia, cyanosis, jaundiceare missing. The orientation that is noted by a doctor, relates merely todate, time and place. ‘Ambulant’ condition as noted by Dr. VasanthiRamesh refers to the ability of the person being examined to move about.The fitness to give a statement in the nature of a dying declaration toform the basis of the conviction for murder is certainly more than bareconsciousness.

45. It is evident that the examination by the doctor was perfunctory.PW 6 Dr. Vasanthi Ramesh has recorded the Medical Legal Case(Exh.PW6/A) very casually. The same is explicit from the fact that notonly the essentials of a basic medical examination are missing fromExhibit PW 6/A but also the manner in which she has filled details. Whilethe address of the deceased is correctly recorded, it is nobody’s casethat Mohd Humayun, brother of the patient was residing at the sameaddress. However, the MLC Exh. PW 6/A records that Mohd Humayun’saddress was the same as that of the deceased Mohd Rustam.

46. In 2004 (3) RCR (Cri) 569 State of Karnataka vs. Sri BaluRam Kalligaddi, it was opined that even if the doctor certifies thatvictim was in a fit state of mind, total faith cannot be put on thecertificate of the doctor. The court can make inquiry from supportingmedical record to find out the mental state of mind.

It would not be safe to rely on the statement made by a doctorrelying on memory not supported by anything on the document recordedby her that it was the deceased who had given the history.

47. It is perhaps conscious of these aspects of the matter that even

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the prosecution before the learned trial judge did not contend that theMLC Exhibit PW6/A contained a statement made by the deceased whichcould have been treated as a dying declaration. As noted by the learnedtrial judge in para 22 of his judgment, there was no reliance by theprosecution at all upon the MLC (Exhibit PW6/A) as containing a dyingdeclaration. We are unable to hold that Exh. PW 6/A is a statementadmissible in evidence as a dying declaration under Section 32 of theEvidence Act.

Exhibit PW 8/B

48. We may now examine the statement attributed to Mohd Rustamas recorded by PW 8-HC. Ramphal Singh in the forenoon of 20th ofJuly, 1997 exhibited on record as Exhibit PW8/B. In as much as extensivereliance is placed on Exhibit PW 8/B, the same deserves to be consideredin extenso and reads as follows :-

“Main pata uprokt par rehta hoon tatha Truck No. RG 143518 par conductary karta hoon.

Yeh truck Prabhash Roadlines, Zakhira, R-Park ke maleekPrabhash Sharma ka hai. Main kal dinaank 19.07.1997 kosamay kareeb 9 baje raat apni do mahine ki tankhwa leneapne truck maalik Prabhash Sharma ke paas KaranMemorial Public School, Zakhira (najd Ram Kaanta) gayatha jahaan mera maalik Prabhash Sharma rehta hai. Jabmain wahaan par pahuncha, toh mere maalik PrabhashSharma va uska bhai Manoj va ek truck driver Jaiveerwahan maujood the. Maine apne maalik Prabhash Sharmase apni do mahine ki tankhwa ke paise maange toh usnemere se kaha ki baithh abhi deta hoon. Iske baad mere komana karte karte sharaab pilayi va iske baad inn teeno(Prabhash Sharma, Manoj, Jaiveer) ne mere ko maarnapeetna shuru kar diya va wahin par rakhi plastic ki canjisme koi taral padarth tha ko Manoj ne uthaya va PrabhatSharma va Jaiveer ne mere ko pakad liya va Manoj ne usscan mein bhara taral padarth mere upar udhel diya jissemere shareer me bahut tej jalan hone lagi va main behoshho karr gir gaya. Iske baad mujhe jab mujhe subah hosh

aaya toh main apni jhuggi ke paas ghayal avastha me padatha. Iske baad mera bhai Mohd Humayun mere ko lekarRML Hospital laya. Mere ko Prabhash Sharma, Manoj vaJaiveer ne bina baat par maara peeta va mere upar tezaabdaal karr jala kar ghayal kiya hai. Inn teeno uproktvyaktiyon ke khilaaf kanooni kaarvahi ki jaave byaan sunliya theek hai.”

49. In the instant case, the learned trial judge in para 22 of thejudgment dated 5th December, 2001 has noticed that there is no directevidence at all led by the prosecution to prove the guilt of the accusedpersons and that the dying declaration Exhibit PW8/B is the only evidencebeing relied upon by the prosecution to prove the guilt of the accusedperson. Based on this submission, the learned trial judge framed thequestion which was required to be answered as “whether such statementwas made by the deceased Md Rustam to HC Ramphal Singh and if theanswer to that question is an affirmative, then what is the effect of thatdying declaration?”

50. We find that the learned trial court has rejected the contentionsof the appellants that the Exhibit PW 8/B, which was the sole evidencebefore it relied upon by the prosecution, was unworthy of credence. Thelearned trial court also rejected the objection of the appellants to ExhibitPW8/B on the ground that Exhibit PW 8/B did non-comply with the DelhiHigh Court Rules and therefore ought not to be relied upon.

51. The learned trial judge has placed reliance on the pronouncementof the Supreme Court in JT 1998 (5) SC 308 Jai Prakash vs. State ofHaryana wherein at the time of recording of the statement by the policeofficer, it was held that the deceased was only a complainant and thepresence of the doctor was found not necessary. The learned trial judgehas also placed reliance on the pronouncements of the Supreme Court inJT 2000 (8) SC 466 Gulam Hussain & Anr. Vs. State of Delhi andJT 1988 (3) SC 537 State of Punjab vs. Amarjeet Singh. The trialcourt has held that at the time when Exhibit PW 8/B was recorded, noFIR had been registered and PW 8 HC Ramphal Singh was not theinvestigating officer. It has been concluded that Exhibit PW 8/B was onlyin the nature of a complaint and hence there was no necessity for

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signatures of the doctor or the nurse or compliance of the Delhi HighCourt Rules noticed hereinabove was unnecessary. The sole basis thusfor rejecting the contentions of the defence is the finding that at the timeof recording the statement Exhibit PW 8/B, Mohd Rustam was only acomplainant and the presence of a doctor or endorsement by the doctorwas not required.

52. So far as fitness at the time of recording of Exhibit PW 8/B isconcerned, the trial judge has relied on the endorsement in the MLCExhibit PW 6/A to the effect that the deceased was conscious, orientedand moving his limbs when the MLC was recorded.

53. In AIR 2008 SC 19 Nallapati Sivaiah vs. Sub-DivisionalOfficer, Guntur, A.P. the principles on the manner in which a dyingdeclaration has to be scrutinized by the court and its evidentiary valueevaluated have been laid down. In this case, there were two dyingdeclarations, the first recorded by the Inspector of Police and a secondrecorded by the Additional Magistrate. The court has observed that anobjective and critical assessment discloses that the treatment administeredto the victim immediately after he was brought to the hospital was notknown and there was no explanation forthcoming as to why the doctorat the casualty was not examined. The record contained only the routineand mechanical endorsement that the patient was conscious and coherentand fit to give statement. In para 16, it has been held that while opiningupon the admissibility of an alleged dying declaration, “all attendantcircumstances should be considered, including weapon which injured thevictim; nature and extent of injuries, victim’s physical condition, hisconduct, and what was said to and by him.” The court ruled that it iswhere a proper and sufficient predicate has been established which wouldmeet for admission of a statement under such a dying declaration whichcould form the sole basis of a conviction. In para 20, while laying downprinciples for evaluation of a statement, the court reiterated principles laiddown in earlier precedents in the following terms :-

“20. The court has to consider each case in the circumstancesof the case. What value should be given to a dying declarationis left to court, which on assessment of the circumstances andthe evidence and materials on record, will come to a conclusion

about the truth or otherwise of the version, be it written, oral,verbal or by sign or by gestures. It is also a settled principle oflaw that dying declaration is a substantive evidence and an orderof conviction can be safely recorded on the basis of dyingdeclaration provided the court is fully satisfied that the dyingdeclaration made by the deceased was voluntary and reliable andthe author recorded the dying declaration as stated by the deceased.This Court laid down the principle that for relying upon thedying declaration the court must be conscious that the dyingdeclaration was voluntary and further it was recorded correctlyand above all the maker was in a fit condition - mentally andphysically - to make such statement.”

54. On a detailed analysis of its previous judgments, the SupremeCourt has culled out the guidelines which would bind adjudication asfollows :-

“38. In our considered opinion, the medical evidence andsurrounding circumstances altogether cannot be ignored andkept out of consideration by placing exclusive reliance uponthe testimony of person recording a dying declaration.

39. The Dying Declaration must inspire confidence so as tomake it safe to act upon. Whether it is safe to act upon aDying Declaration depends upon not only the testimony ofthe person recording Dying Declaration - be it even aMagistrate but also all the material available on record andthe circumstances including the medical evidence. Theevidence and the material available on record must be properlyweighed in each case to arrive at proper conclusion. The courtmust satisfy to itself that the person making the DyingDeclaration was conscious and fit to make statement forwhich purposes not only the evidence of persons recordingdying declaration but also cumulative effect of the otherevidence including the medical evidence and thecircumstances must be taken into consideration.

CONCLUSION:

40. It is unsafe to record conviction on the basis of a dying

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declaration alone in cases where suspicion is raised as regardsthe correctness of the dying declaration. In such cases, thecourt may have to look for some corroborative evidence bytreating dying declaration only as a piece of evidence.”

(Emphasis supplied)

55. In Nallapatti Sevaiah (supra), the court has emphasized therequirement of establishing that the deceased was conscious in the strictsense of the term and that “there must be reliable evidence to show, inview of his intense suffering and serious injuries, that he was in a fit stateof mind to make the statement regarding the occurrence”. In this regard,reference was made to observations of the Supreme Court in (1976) 3SCC 618 K. Ramchandra Reddy & Anr. vs. The Public Prosecutor;1980 Supp.SCC 434 Padman Meher vs. State of Orissa ; (1983) 2SCC 411 Darshan Singh alias Bhasuri & Ors. vs. State of Punjab;AIR 1972 SC 1776 Lallubhai Devchand Shah & Ors. Vs. The Stateof Gujarat) on this aspect.

56. On the issue of fitness to make the statement, the observationsof the Supreme Court in (1995) 4 SCC 118 Kanchy Komuramma vs.State of A.P. are also relevant and deserve to be considered. The courtconsidered the evidentiary value of a dying declaration recorded by aJudicial Magistrate and noted that the prosecution for reasons best knownto it, did not examine the doctor who had made the endorsement “thepatient was in a fit state of mind to depose”, on the dying declarationcertifying that and having further noticed that no other witness wasexamined to prove the certificate of the doctor. It was held that the samecreates a doubt as to whether the patient was actually in a proper andmental condition to make a conscious truthful statement. The observationsof the court shed valuable light on the questions raised in the present caseand read as follows:-

“This infirmity renders it unsafe to rely on the dying declaration.As a matter of fact, the failure of the prosecution to establishthat the deceased, before she made the dying declaration, was inproper mental condition to make the dying declaration detractsmaterially from the reliability of the dying declaration and it wouldnot be safe to rely upon it. That the dying declaration has been

recorded by Judicial Magistrate, by itself is not a proof oftruthfulness of the dying declaration, which in order to earnacceptability has still to pass the test of scrutiny of the court.There are certain safeguards which must be observed by amagistrate when requested to record a dying declaration. Hemust record the dying declaration satisfying himself that thedeclarant is in a proper mental state to make the statement. Hemust also obtain the opinion of the doctor, if one is available,about the fitness of the patient to make a statement and theprosecution must prove that opinion at the trial in the mannerknown to law.”

(Emphasis supplied)

This judgment has correctly been relied upon by the Supreme Courtin Nallapatti Sivaiah (supra).

PW-8 HC Ramphal Singh stated that in the hospital, he obtained theMLC of Mohd Rustam; that the concerned doctor declared him fit formaking statement; that he went to the bed of the injured in the hospital;and at the dictation of Mohd Rustam, he recorded his statement (Exh.PW8/B). He has further claimed to have recorded a statement of the deceasedas Exh. PW 8/B which was in the presence of PW-5. PW 8 has statedthat they had reached the hospital at about 10.00/10.30 am. PW 8 furthercategorically states that the enquiry as to the fitness of the injured Rustamto make statement was made when the MLC was collected from thedoctor in the emergency. PW 8 has further stated that upon enquiry fromthe doctor in the emergency, “he had replied in the affirmative”. . PW8 has deposed that thereafter they went to the emergency ward; thatthere were two beds in the room, one occupied by Mohd Rustam whilethe other was vacant; that one doctor and one nurse were on duty; thathe did not mention the name of the doctor or nurse even in his casediary; that he does not remember their names; that no glucose or bloodwas being given to Mohd Rustam and that it took 10-15 minutes torecord his statement.

57. PW 8’s explanation for not getting the statement of MohdRustam attested by any person is that generally the police only write thestatements. PW 8 states that signatures of Mohd Rustam were obtained

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on the statement; and that he did not ask the educational qualificationsof the injured from him. PW-8 denies that he was illiterate.

58. After recording the statement, PW 8 – HC Ramphal states thathe attested the same; made his endorsement (Exh.PW 8/C) thereon andsent the rukka to the police station Moti Nagar for registration of thecase.

59. PW 5-Ct. Vinod Kumar who had accompanied PW-8 HC RamPhal to the Ram Manohar Lohia Hospital, corroborates him so far asleaving the police station for hospital on the basis of DD 4A at 9.30 amon 20th July, 1997 is concerned. PW 5, however, states that aftercollecting the MLC, they had gone to the burns ward. PW 5 states thatone doctor and one compounder was present in the room where MohdRustam was kept and that he also does not know their names. Incontradiction to PW 8, Constable Vinod Kumar asserts that glucose wasbeing administered to the patient and that he did not talk to the doctoror compounder.

60. So far as recording of the statement is concerned, PW-5 Ct.Vinod Kumar deposed that in the ward, HC Ram Phal had stated that hewanted to record the statement of the patient in the burns ward; that thedoctor said that he could record the statement and that the doctor wasvery much there when the statement of Mohd Rustam was recorded byHead Constable Ram Phal. PW 5 also denied the suggestion that nostatement was made by Mohd Rustam or that it was recorded by constableRam Phal on his own. He asserted that the statement was read over toMohd Rustam and that he had put his signatures on the said statement.The witness, however, stated that he did not know whether Mohd Rustamwas illiterate or not.

61. PW 5 Ct. Vinod Kumar also stated that none of the familymembers entered the room while the statement was recorded. This witnesscorroborated PW 8 in that the Mohd Humayun was present in the verandahoutside the room.

62. There are other curious aspects to Exhibit PW8/B. If the deceasedknew that acid had been poured on him, where was the occasion to referto a liquid substance (“taral padarth”) in Exhibit PW 8/B.

63. The above statement uses words as “uprokt”; “maujood”;repeatedly uses “va” (which translates into ‘and’); “taral padarth”; “ghayalawastha”; “uprokt vyaktiyon”; “kanooni karyawahi”, amongst others.The language in which Exhibit PW 8/B has been recorded also casts adoubt as to whether this statement is at the dictation of the deceased.

64. So far as the fitness to make the statement is concerned, thelearned trial Judge has relied upon the endorsement in the MLC ExhibitPW 6/A to conclude that there was nothing on record that Mohd Rustamwas critical at the time of recording Exhibit PW 8/B. It is the case ofthe prosecution that the MLC Exhibit PW 6/A was recorded at about9.15 to 9.30 a.m., whereas Exhibit PW 8/B was recorded after 11.30a.m. The Judge has noticed that there was no evidence that the deceasedwas under sedation or any kind of medicines and has disbelieved PW 1Mohd Humayun that his brother Mohd Rustam gained consciousnessonly on 21st July, 1997. The fact that the deceased survived for eightdays has also influenced the learned trial Judge to hold that his conditionwas not so serious.

65. The scenario that has been projected by the prosecution is thatafter the pouring of the acid the injured was suffering such unbearablepain (‘burning sensation’) that he was rendered unconscious. He remainedunconscious not for few minutes, but from when the incident occurredat 4.00 p.m. (as per the MLC Exhibit PW 6/A) or 9.00 p.m. (as per thestatement recorded by HC Ramphal Singh-Exhibit PW 8/B), till after 7.00a.m. in the morning when his brother discovered him. Thus the deceasedwas in so much pain that he had been rendered unconscious for aboutten hours. If such was the nature of the agony which the injured MohdRustam was suffering, the same could not have been mitigated by 9.30a.m. when the doctor examined him or between 9.30 am and 11.30 amwhen HC Ramphal and Ct. Vinod Kumar made inquiries and recorded thestatement (Exh. PW 8/B) attributed to the deceased.

The standard of fitness of the deceased to give statements whichwere admissible in evidence as dying declarations which the prosecutionhad to meet is certainly rendered high in the given facts.

Yet another aspect of the matter needs consideration.

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66. The prosecution has carefully shrouded the treatment given tothe injured Mohd Rustam in complete secrecy. His treatment chart hasnot been placed before this court. The patient had admittedly been shiftedfrom the emergency from where he was brought by his brother MohdHumayun to the Burns Ward where his statements were recorded. It canreasonably be expected that in the hospital, some kind of treatment wouldhave been administered to the injured. It is left to speculation as to themanner in which pain would have been mitigated, whether any medicationwas administered for this purpose.

67. In the endorsement by PW 8-HC Ramphal Singh (Exhibit PW8/C), he has written that upon reaching the RML Hospital, he had obtainedMLC No.8/E/33/97 with regard to Mohd Rustam on which Dr. Sahib hadstated “acid/chemical burns with blunt injuries” and “fit for statement”whereupon a statement of Mohd Rustam was recorded.

68. A perusal of the MLC (Exhibit PW6/A) shows that on the rightside of the document, the nature of injuries etc has been recorded in thehand writing of PW 6 Dr. Vasanthi Ramesh whereas on the left side ofthis document, the words “fit for statement” Sd/- 20/7/1997” are endorsed.These words (the alleged fitness for statement) are admittedly not in thehand writing of Dr. Vasanthi Ramesh or signed by her. In fact the sameis in the portion of the MLC which is not recorded by Dr. VasanthiRamesh. Again no name or identity of the person who has endorsed thisfitness on Exhibit PW8/B has been brought on record nor has any suchdoctor been examined. It is important to note that even this endorsementdoes not mention any time. There is thus no evidence of fitness of thedeceased when Exhibit PW8/B was scribed by HC Ramphal Singh.

69. As noticed above, PW-8 HC Ramphal Singh has claimed tohave made the inquiry in the emergency which has been replied by a “he”and therefore, the inquiry, if at all, was clearly made from a male doctorand not from Dr. Vasanthi Ramesh (who recorded the MLC).

70. Neither the name nor the identity of any other doctor in theemergency ward has been revealed on record. No such doctor has beenexamined to establish either the fact that PW 8 actually made any enquiryor fitness of the injured to make any statement.

71. PW 5-Ct. Vinod Kumar states that he does not know the nameof the doctor in the emergency from whom the MLC was collected. Hemakes no reference to any enquiry by PW 8 from any doctor in theemergency about the fitness of Mohd Rustam to make a statement. Thereading of the deposition of PW 5 shows that no inquiry with regard tothe fitness of the patient to give a statement was made from any doctorby PW 8-HC Ramphal before recording the statement of the deceased.

72. Both PW 5 & 8 have stated that one doctor and one nurse wereworking on the deceased Mohd Rustam in the Burns Ward when theyreached there. Both are unable to give even their names. No such doctoror nurse has been produced in the witness box.

73. PW 5 Ct. Vinod Kumar had stated that glucose was beingadministered to Mohd Rustam while PW 8-HC Ramphal Singh hascategorically denied that anything was administered to him.

74. The above narration would show that PW-5 completelycontradicts PW-8 about certification of the fitness of the patient to makethe statement. They contradict each other even about the place where thefitness was ascertained. Neither of them is able to give even the identityof the doctor from whom the fitness was determined. The documentExh.PW-8/B also contains no certification of fitness.

75. The prosecution has placed reliance on Exhibit PW 8/B alonebefore the trial court as a dying declaration. Even if it could be held thatthe statement when made was in the nature of a complaint or that thesame was not required to be attested or be in question and answer form,the question which was required to be posed and answered was whetherMohd Rustam was conscious and in a fit state of mind to make thestatement at the actual time when the same is attributed to him.

76. The learned trial judge has correctly noticed that there is noabsolute proposition of law that a dying declaration should be in questionand answer form or that it must have corroboration so as to support aconviction. This observation cannot be faulted.

77. Merely because Mohd Rustam expired eight days after theincident would not by itself lead to a conclusion that he was not criticalor that he had not been administered any medication or that he was in

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a fit and conscious state of mind to make the statement.

78. We find that the reliance by the learned trial judge on theevidence of PW 6 Dr. Vasanthi Ramesh for the purposes of determininghis fitness much later when the deceased is alleged to have given thestatement Exhibit PW 8/B is clearly erroneous and improper. There is noevidence therefore of the fitness of the deceased to make a statementwhen PW-5 & 8 visited him in the hospital. Exhibit PW-8/B does notsatisfy the prescribed tests noticed above and cannot be relied upon asa dying declaration worthy of credence to base a conviction thereon.

Exhibit PW8/G

79. The second statement attributed to the deceased made to HCRamphal Singh (Exhibit PW8/G) pressed by learned APP before us asanother dying declaration reads as follows:-

“Main apne sabka bayano ki tareek karta hu. Jab apne merabayan liya main ghabraya hua tha. Mera bhai Mohd Humayunmujhe zakhmi halat me lekar aspataal aaya tha. Maine apne bhaiko wo jagah, Karan Memorial Public School, Chara Mandi,Zakhira, najd. Ram Kanta, jahan par mere upar can me rakhaacid/chemical teeno ne milkar daala tha, wo jagah mene apnebhai ko aspataal aane se pehle dikha di thi. Us can ka rang peelatha aur ek bachche ki tasveer bani thi. In teeno aadmiyon, PrabhashSharma, Manoj Kumar, Jaibir ne ek rai hokar mujhe jaan semarne ki niyat se mere upar acid, chemical fenka tha. Bayan sunliya, theek hai.”

The above, when translated, reads as follows:-

“I acknowledge (‘tareek’) my statement. When you had takenmy statement, I was in a worried state. My brother MohdHumayun brought me in an injured condition to hospital. I hadshown my brother the place Karan Memorial Public School,Chara Mandi, Zakhira, Nazd Near Ram Kanta where all three hadpoured acid/chemical kept in a can over me. Before coming tothe hospital, I had shown my brother that place. That can wasof yellow colour and there was a picture of one child on it.These three men Prabhash Sharma, Manoj, Jaibir had formed

one view (‘ek rai’) and with the intention of killing me hadthrown acid/chemical on me. Heard the statement. It is correct.”

80. The use of words which include the reference to ‘acid/chemical’‘ek rai’ reflects that the statement is not in the words of the deceased.

81. Exhibit PW 8/G does not bear the signatures or thumb impressionof Mohd Rustam or of his brother or any relative. It does not bearattestation by any doctor.

82. It is important to note that even on Exhibit PW 8/G (the secondstatement attributed to the deceased), there is no certification at all offitness of the deceased to make this statement. So far as the ability ofthe deceased to make the statement is concerned, PW 8 merely statesthat a doctor and a nurse were sitting in that room examining a patient.However PW 8 does not give their names or particulars. It is not evenclear as to which patient was being examined. In his cross examination,PW 8 states that he did not even know if this doctor and nurse were thesame as the ones who were present when the first statement (Exhibit PW8/B) was recorded by him. PW 8 is categorical that he is unable to evenrecollect these persons by face. This statement casts grave suspicion onthe presence of a doctor or a nurse on either of the occasions.

83. Interestingly, realizing the gap in the events as have been unfoldedby the prosecution, PW 8 has attempted to fill up the deficiency byclaiming that the deceased made a second statement Exhibit PW8/G. Inthis statement, an additional statement has been attributed to the deceased.It is alleged that in his severely burnt condition, the deceased first tookhis brother PW1 Mohd Humayun to the place of occurrence beforeproceeding to the hospital. PW1 has not supported the prosecution in hisdepositions before the court. Given the intense burning which the deceasedhad suffered, so much so that he was rendered unconscious (for overnine hours or so) and the condition in which he found himself, alsohaving regard to the normal course of conduct of an injured person, itis implausible that the injured would have taken his brother first to theplace of occurrence.

84. Importantly PW 8 does not give a whit of an explanation as towhere was the need or occasion for recording another statement of the

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deceased on the 20th of July, 1997. It is not even PW 8 HC Ramphal’ssubmission that Mohd Rustam requested him to visit the hospital and torecord a further statement. The treatment administered to Mohd Rustamand the case sheet from the hospital has been completely concealed fromthe court. There is not an iota of evidence as to what was the treatmentadministered to him; what was the nature of the medication given to him?Whether any pain relief medication was prescribed and administered? Nodoctor’s certificate is appended to show that the deceased was fit tomake a statement. No doctor has been examined to establish the fitnessof the deceased when Exh.PW-8/G was scribed.

85. The statement does not bear the thumb imprint or signatures ofthe deceased or his relatives. There is considerable doubt about itsgenuineness and Exh. PW-8/G is unworthy of credence.

Statements recorded by the police officials

86. Apart from the above contentions on behalf of the appellants,yet another circumstance to challenge the credibility of the statementsExhibit PW8/B and 8/G has been pointed out. In the instant case ExhibitPW8/B and Exhibit PW8/G have been recorded by PW8-HC Ram PhalSingh, a police officer which is urged to be inappropriate and unacceptable.Both Mr. Padam Singh and Mr. Bhanu Pratap Singh, learned counsels forthe appellants have placed reliance upon the Rules and Orders of thePunjab High Court (Vol. III) as are applicable to the courts in Delhiregarding recording of dying declarations. It is urged that the statementof the injured person ought to have been recorded by the SDM. Thesame not having been so recorded and/or attested by doctors is renderedsuspect and deserves to be rejected.

87. Ms. Ritu Gauba, learned APP has placed reliance on thepronouncement of the Supreme Court reported at (2011) 1 SCC (Cri)352 Dhan Singh vs. State of Haryana in support of her contention thatthe police had no opportunity to get the statement recorded by the SDMand that the dying declarations recorded by HC Ramphal Singh deserveto be relied upon to maintain the conviction of the appellants. It is urgedthat given the testimony of the prosecution witnesses, the non-recordingof the fitness or certification by the doctor as well as that the failure toobtain signatures of doctor was not fatal to the case of the prosecution.

A perusal of these judgments would show that the court made a collectiveexamination and analysis of the evidence on record and arrived at afinding that the dying declaration was recorded by the Head Constableafter the victim was declared fit to make the statement. The court hasheld that there was no doubt that the statement of the deceased wasrecorded only after he was declared fit to make the statement by thedoctor concerned. The dying declaration was endorsed by the closestrelation of the deceased person present at the time.

88. The appellants have urged that given the nature of the statementsattributed to the deceased as having been made to PW 8, it was appropriatethat his statement be recorded by the Magistrate.

89. An explanation has been suggested by Ms. Ritu Gauba, learnedAPP that on the 20th of December, 1997 the deceased was not in suchserious condition or in expectation of death when Exhibit PW 8/B orExhibit PW8/G was recorded. It is contended that the deceased survivedin hospital for nine days and therefore on 20th July, 1997 he was not inexpectation of death. For this reason, the prosecution contends, thestatement Exhibit PW 8/B was in the nature of a complaint to the policewhile Exhibit PW8/G was in the nature of a statement under Section 161of the CrPC. It is urged that the statements must be considered in thisbackground. It is urged that only because the condition of the deceasedworsened and he expired that the statements attributed to him disclosingthe cause of his death are being pressed as dying declarations. Therefore,he cannot be faulted for not getting the statement recorded by the SDM.

90. In (2003) 2 SCC 571 : 2003 SCC (Cri) 659 CherlopalliCheliminabi Saheb vs. State of Andhra Pradesh, the court held thatit was not absolutely mandatory that in every case, the dying declarationto be recorded only by a magistrate and that it would depend on the factsand circumstances of the case. This was reiterated by the SupremeCourt in (2011) 1 SCC (Cri) 352 Dhan Singh vs State of Haryanawherein in para 17, the court observed that neither Section 32 of theEvidence Act nor Section 162(2) of the CrPC mandate that the dyingdeclaration has to be recorded by a designated or particular person. Itwas observed that it is by virtue of the development of law and theguidelines settled by the judicial pronouncements that it is normally accepted

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that such declaration would be recorded by a magistrate or by a doctorto eliminate the chances of any doubt or false implication by theprosecution during investigation.

91. The learned trial judge has ruled in the above terms. Theobservations of the learned trial judge are based on the fact that FIR No.387/1997 was registered after Exhibit PW8/B was written down.

92. It needs no elaboration that in view of the exception providedin sub-section (2) of Section 162 of the Code of Criminal Procedure,1973, a dying declaration recorded by a police officer during the courseof investigation is rendered admissible in evidence. However, the SupremeCourt has repeatedly cautioned that the investigating officers are interestedin the success of the investigation and that the investigation officerhimself recording a dying declaration during the course of investigationought not to be encouraged. In fact, the courts have rejected suchdeclarations upon the failure of the police to explain as to why the dyingdeclaration could not be recorded by the magistrate or why such declarationcould not be recorded in question-answer form so as to reflect correctlywhat was asked and what was answered by the deceased. A copiouslyworded or neatly structured dying declaration also incites suspicion forthe reason that it may suggest tutoring or incorporation of facts whichmay not have taken place as the investigating officer is interested insuccess of investigation. (Ref: (1976) 3 SCC 104 Munnu Raja vs. Stateof M.P. (para 1 at 108); (1979) 4 SCC 332 Dalip Singh & Os. Vs.State of Punjab.)

93. Learned counsel for the appellants has also emphasised that itwould be improper to place reliance on the statements attributed to thedeceased in the instant case as having been made to or recorded by thepolice officer. In this regard, learned counsel has strongly placed relianceon Chapter 13-A of the Rules & Orders of the Punjab High Court (VolIII) as applicable to Delhi which relate to recording of dying declarations.The relevant extract of these rules reads as follows:-

“2. Dying declarations to be recorded by Judicial Magistrates- (i) Where a person whose evidence is essential to the prosecutionof a criminal charge or to the proper investigation of an allegedcrime, is in danger of dying before the enquiry proceedings or

the trial of the case commences, his statement, if possible, begot recorded by a Judicial Magistrate. When the police officerconcerned with the investigation of the case or the medical officerattending upon such person apprehends that such person is inthe danger of dying before the case is put in Court, he may applyto the Chief Judicial Magistrate, and, in his absence, to the seniormost Judicial Magistrate present at the headquarters, for recordingthe dying declaration.

(ii) On receiving such application, the Judicial Magistrate shall atonce either himself proceed, or depute some other stipendiaryJudicial Magistrate to record the dying declaration.

3. Fitness of the declarant to make the statement should begot examined - Before proceeding to record the dying declaration,the Judicial Magistrate shall satisfy himself that the declarant isin a fit condition to make a statement, and if the medical officeris present, or his attendance can be secured without loss of time,his certificate as to the fitness of the declarant to make a statementshould be obtained. If, however, the circumstances do not permitwaiting or the attendance of the Medical Officer, the JudicialMagistrate may in such cases proceed forthwith to record thedying declaration but he should note down why he considered itimpracticable or inadvisable to wait for a doctor’s attendance.

4. The statement of the declarant should be in the form ofa simple narrative - The statement, whether made on oath orotherwise, shall be taken down by the Judicial Magistrate in theform of a simple narrative. This, however, will not prevent theJudicial Magistrate from clearing up any ambiguity, or asking thedeclarant to disclose the cause of his apprehended death or thecircumstances of the transaction in which he sustained the injuries.If any occasion arises for putting questions to the dying man,the Judicial Magistrate should record the question also the answerswhich he receives. The actual words of the declarant should betaken down and not merely their substance. As far as possiblethe statement should be recorded in the language of the declarantor the Court language.

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guidelines. It is urged that on the examination of the evidence placedbefore the trial judge, the statements attributed to the deceased arecompletely unworthy of credence for this reason as well.

95. So far as these rules are concerned they have come up forconsideration before the Supreme Court in AIR 1986 SC 250 LuxmanKumar vs. State as well as before this court in the judgment reportedat 40 (1990) DLT 238 (DB) Surender Singh vs. State.

96. The above narration of the facts and the evidence in the presentcase would show that neither the doctor nor the police officers havecomplied with the safeguards prescripted under the Rules. The non-compliance of the Rules was one of the circumstances which weighedwith the Division Bench of this court in the judgment reported at 40(1990)DLT 238 Surender Singh vs. State to hold that it was unsafe to actsolely on the dying declaration recorded by a doctor on the MLC.

97. In (2001) AIR SCW 2481 Laxmi vs. Om Prakash & Ors.,the Supreme Court has deprecated the practice of the investigating officerrecording dying declarations in the following terms:-

“29. A dying declaration made to a police officer is admissiblein evidence, however, the practice of dying declaration beingrecorded by investigating officer has been discouraged and thisCourt has urged the investigating officers availing the services ofMagistrate for recording dying declaration if it was possible todo so and the only exception is when the deceased was in sucha precarious condition that there was no other alternative leftexcept the statement being recorded by the investigating officeror the police officer later on relied on as dying declaration. InMunnu Raja and Anr. Vs The State of Madhya Pradesh -1976 CriLJ 1718, this Court observed - “investigating officersare naturally interested in the success of the investigation and thepractice of the investigating officer himself recording a dyingdeclaration during the course of an investigation ought not to beencouraged”. The dying declaration recorded by the investigatingofficer in the presence of the doctor and some of the friends andrelations of the deceased was excluded from consideration asfailure to requisition the services of a Magistrate for recording

5. Signatures or thumb impression of the declarant to beobtained to token of the correctness of the statement - Atthe conclusion of the statement, the Judicial Magistrate shall readout the same to the declarant and obtain his signature or thumb-impression in token of its correctness unless it is not possible todo so. The dying declaration shall be placed in a sealed coverand transmitted to the Judicial Magistrate having jurisdiction todeal with the case to which it relates.

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7. Recording of a Dying declaration by a Police Officer orMedical Officer - Where a dying declaration is recorded by aPolice Officer or a Medical Officer, it shall, so far as possible,be got attested by one or more of the persons who happen tobe present at the time.

8. Fitness of the declarant to make a statement to becertified by the Judicial Magistrate or other officer concerned- The Judicial Magistrate or other officer recording a dyingdeclaration shall at the conclusion of the dying declaration certifythat the declarant was fit to make a statement and it containeda correct and faithful record of the statement made by him aswell as of the questions, if any, that were put to him by thejustice recording the statement. If the accused or his counselhappens to be present at the time the dying declaration is recorded,his presence and objection, if any, raised by him shall be notedby the Judicial Magistrate or the officer recording the dyingdeclaration, but the accused of his counsel shall not be entitledto cross-examine the declarant.

9. Dying Declaration should be a free and spontaneous - Itis the duty of the person recording a dying declaration to takeevery possible question to ensure the making of a free andspontaneous statement by the declarant without any prompting,suggestion or aid from any other justice.” (Emphasis supplied)

94. Placing reliance on the above rules, it is contended that in theinstant case, the prosecution has completely failed to abide by the above

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the dying declaration was not explained. In Dalip Singh Vs.State of Punjab [1954] 1 SCR 145 : [1954] 1 SCR 145 thisCourt has permitted dying declaration recorded by investigatingofficer being admitted in evidence and considered on proof ‘thatbetter and more reliable methods of recording dying declarationof injured person’ were not feasible for want of time or facilityavailable. It was held that a dying declaration in a murder case,though could not be rejected on the ground that it was recordedby a police officer as the deceased was in a critical condition andno other person could be available in the village to record thedying declaration yet the dying declaration was left out ofconsideration as it contained a statement which was a bitdoubtful.”

(Underlining by us)

98. In the decision dated 14th September, 2010 of the DivisionBench in Crl.Appeal No. 797/2001 Diwan Singh vs. State, this court didnot accept a dying declaration recorded by the investigating officer interalia for the reason that cuttings and over-writings therein were not explainedby the prosecution to base a conviction thereon; it was also observed thatthe same was not in the language of the deceased nor in question andanswer form. The attestation by the doctor was not contemporaneous intime. Furthermore, the doctor who had given the attestation was notexamined. The content of the declaration as well as the failure to give anexplanation as to why it was not recorded by the Magistrate werecircumstances which weighed with the court in rejecting the statementattributed to the deceased. In this regard, the court observed as follows:-

“29. Next is the alleged dying declaration of the deceased allegedlyrecorded by the Investigation Officer. The prosecution has noteven tried to give any explanation as to why it wasn’t recordedby the Magistrate and what were the circumstances, that thealleged dying declaration had to be recorded by the InvestigatingOfficer. In Balak Ram v. State of U.P. (1975) 3 SCC 219 theApex Court had held that though the dying declaration was allegedto have been recorded by Investigation Officer but in absence ofany explanation as to why it was not recorded by a Magistrate

in the usual course, High Court treated the statement of thedeceased to be one recorded under section 161 of Cr. P.C andnot a dying declaration. Though in the referred case the dyingdeclaration was not signed by the deceased, however, even inthe present case it has not been fully established that the dyingdeclaration was thumb marked by the deceased. PW 7 Dr. Savitawho had allegedly attested the dying declaration at 11.30 PMthough it was allegedly recorded at 11.30 AM did not deposethat in her presence the dying declaration was thumb marked bythe deceased after it was read over to her by the InvestigatingOfficer. Rather she deposed that fresh burns involved the entirebody except the small area on back. She did not state that thethumb of the deceased was burnt to the extent that the markcould not be given from it. The post mortem report Ex. PW 8/1 also does not show that the thumbs of the deceased were notburnt or despite burns on the thumb, impression could be obtainedfrom the thumb. In Mannu Raja Vs State of M.P, (1976) 3SCC 104 in para 11 at page 108 the Supreme Court had held thatthe Investigating Officers are interested in the success ofinvestigation and the Investigation Officer himself recording adying declaration during the course of investigation ought not tobe encouraged. The prosecution has failed to divulge any detailsas to why the Magistrate could not record the alleged dyingdeclaration. Admittedly the deceased was admitted at 11.00 a.mand was alive for couple of hours before succumbing to burns.There is no explanation as to why the dying declaration couldnot be recorded in question answer form, in order to reflect asto what was asked and what was answered by the deceased.This is also to be noticed that the dying declaration which iscopiously worded or neatly structured excites suspicion for thereason that it bears the traces of tutoring or incorporating suchfacts which may not have been told by the deceased. From thedying declaration Ex PW 13/2 it is apparent that it is the languageof the Investigating Officer and not the language of the deceased.”

99. At this stage, a reference can usefully be made to two DivisionBench pronouncements of this court reported at 1987 3 Crimes 747

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Kaushalya & Ors. vs. State and (1984 ) 1 Crimes 1 Jagdish LalMalhotra vs. The State relied upon by the appellants.

100. In (1987) 3 Crimes 747 Kaushalya & Ors. vs. State, theappellant had been convicted for offence under section 302/34 only onthe basis of the dying declaration recorded by the investigating officer.The same was disbelieved inter alia for the reason that the same had notbeen recorded in question and answer form; it had not been attested byany doctor or nurse or any of the relatives of the deceased although theywere available when the statement was recorded; the doctor was notasked to record the statement and the deceased had been given a pathedineinjection as part of the treatment. It is noteworthy that the court hadreferred to the pronouncements of the aforenoticed rules which areapplicable to the Delhi area with regard to recording of the dying declaration.

101. In (1984) 1 SCC 1 Jagdish Lal Malhotra vs. The State, theappellant was convicted for murder of his wife by the Sessions Judgesolely on the basis of his wife’s dying declarations. The appellant hadchallenged the dying declaration including the one recorded by theinvestigating officer. The court had ruled that if the statement made orfacts stated in the dying declaration is at variance with the other evidenceof the prosecution in such matters, the dying declaration will be considereduntrustworthy and suspicious.

102. In (1999) 2 SCC 126 Paras Yadav & Ors. vs. State ofBihar, it has been ruled that the statement of a deceased recorded by apolice officer in a routine manner as a complaint can be taken as a dyingdeclaration after the death of the injured if he was found to be in a fitstate of health to make a statement.

103. We are unable to appreciate as to how the safeguards postulatedby law and judicial pronouncements would stand diluted because the FIRhad not been registered and formal investigation had not commenced on20th of July, 1997 when Exhibit PW8/B was recorded or that PW 8 wasonly enquiring into an offence under Section 324 IPC when Exhibit PW8/G was recorded. The Rules pressed by the appellants actually incorporatethe various safeguards laid down by the Supreme Court in the severaljudgments. The judicial precedents noticed above would show that theSupreme Court has repeatedly emphasised the scrutiny which a statement

by a dead person with regard to the cause of his death, has to besubjected to. Such scrutiny is prescripted not only in respect of a statementto the SDM, but even in respect of statements to relatives; chancewitnesses; investigating officers; doctors; medical attendants etc.

104. In view of the above, merely because HC Ramphal Singh wasmaking the inquiry pursuant to DD 4A and recorded Exhibit PW8/B orExh. PW-8/G during investigation, would not impact the scrutiny whichit has to undergo before being rendered admissible in evidence underSection 32 of the Indian Evidence Act or dilute the standards it has tomeet, especially with regard to the fitness and voluntariness of thestatements.

105. The question which the trial court in the instant case was thusrequired to consider is not as to whether Exhibit PW 8/B, when recorded,was in the nature of a dying declaration or a statement under Section 161of the CrPC or in the nature of a complaint. Before this court, thestatements have been pressed as dying declarations under Section 32(1)of the Evidence Act and that it fell within the exception of Section 162(2)of the Code of Criminal Procedure. The trial court was required to besatisfied that the statements satisfied the tests applicable to dying declarationwhich render it admissible in evidence on which it was safe to base theconviction of the accused.

106. Perusal of the trial court record shows that in an un-exhibitedundated death summary, it has been stated that the patient was admittedon 20th July, 1997 and was shifted to Ward-II on 21st July, 1997. It isfurther recorded that on 27th July, 1997, the patient suddenly developedcomplications and expired on 8.50 a.m. on 28th July, 1997.

107. The above discussion would show that the investigating officerhad nine days while the deceased was in hospital to get the statement ofMohd Rustam recorded by the Magistrate. As per the death report givenby the doctor, his condition had worsened only on 27th July, 1997. Eventhen, the police unreasonably made no effort at all to secure a magistratefor recording the statement of the deceased.

The investigating officer thus had enough time had he tried even on27th July, 1997 to ensure that the statement of the deceased was got

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recorded from the Magistrate.

108. In (1975) 3 SCC 219 Balak Ram vs. State of U.P., the dyingdeclaration was alleged to have been recorded by the investigating officer.In the absence of any explanation as to why it was not recorded by theMagistrate in the usual course, the High Court treated the statement ofthe deceased to be one recorded under Section 161 of the CrPC and notas a dying declaration. On the same issue, in (1979) 4 SCC 332 DalipSingh & Ors. Vs. State of Punjab, the Supreme Court observed thatalthough dying declaration recorded by a police officer during the courseof investigation is admissible under Section 32 of the Indian Evidence Actin view of the explanation provided in Sub-section (2) of Section 162 ofthe Code of Criminal Procedure, it is better to leave such dying declarationsout of consideration until and unless the prosecution satisfies the courtas to why it was not recorded by a Magistrate or by a Doctor.

109. In (2008) 3 SCC 691 Shaikh Rafiq & Anr. Vs. State ofMaharashtra also the court observed that the dying declaration and themanner in which it was recorded by the Asstt. Sub-Inspector could notbe relied upon. The police officer had failed to call the executive magistratethough available and also did not take certificate of fitness.

110. The position in the instant case is similar. In the present caseas well, the prosecution does not even venture to suggest as to why theSDM could not be called.

It is not the case of prosecution that the executive magistrate wasnot available.

111. PW 8 HC Ramphal Singh has made no enquiries even from theRML Hospital after 20th of July, 1997 where the deceased was lyingadmitted. He categorically states that he did not even go to the hospital,even to enquire about the health of Mohd Rustam after 20th July, 1997;that he did not conduct any investigation of the case after 24th July,1997 till the death of Mohd Rustam on 28th July, 1997. HC RamphalSingh has further stated that he handed over investigation to Insp P.P.Singh- PW 10 after 12 noon on 28th July, 1997.

The conduct of the police officials casts considerable doubt on thestatements allegedly recorded by them.

Even if it could be held that the deceased had made the allegeddying declarations attributed to him in a fit state of mind, theysuffered from other such serious infirmities as would mandate/require their exclusion from consideration?

112. The evidence of PW 1 Mohd Humayun does not disclose anystatement at all made by the deceased nor does the evidence of PW 9Ct. Rajinder Singh, the Duty Officer who would be amongst the firstpersons to whom the deceased would have related the occurrence anddetails of his assailants.

113. In the instant case, the record does not show that the deceaseddisclosed the names of his assailants at the first opportunity. So far asthe statement recorded on the MLC Exhibit PW 6/A is concerned, thereis no reliable evidence at all with regard to the fitness of the deceasedperson. There is reasonable doubt that the same records informationdisclosed by the deceased.

114. We find that there is material contradiction with regard to thetime of the occurrence; the identity of the assailants; the manner inwhich the deceased was attacked between the statements attributed tohim.

115. As noticed above, so far as the statements recorded by HCRamphal Singh are concerned, neither Exhibit PW 8/B nor Exhibit PW8/G reflect that the fitness of the deceased person was ascertained beforethese have been recorded.

116. Exhibit PW 8/B was recorded apparently between 11.30 amand 12 noon i.e. more than fourteen hours after the occurrence, whileExhibit PW8/G was recorded at about 3.00 p.m. which is more thanseventeen hours after the occurrence.

117. There is no evidence at all before this court that despite suchburn injuries and the resultant pain, which rendered the deceasedunconscious between either 4.00 p.m. or 9/9.30 p.m. on 19th July, 1997to 7 a.m. on 20th July, 1997, he was in a proper state of mind andcapable of making any of the statement attributed to him.

118. It has been held that a statement cannot be rejected straightway

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merely because it is recorded by a police personnel and the thumbimpression of the deceased was affixed. (Ref : (1999) 3 SCC 507 Stateof Rajasthan vs. Teja Ram; AIR 1975 SC 667 Rajik Ram vs. JaswantSingh Chauhan ; AIR 1959 SC 1012 Tahsildar Singh & Anr. VsState of Uttar Pradesh).

In the instant case, the brother of the deceased has stated that hewas illiterate. The statement attributed to the deceased Exhibit PW8/B areallegedly claimed to have been signed by him while Exhibit PW8/G isneither signed nor bears an identified thumb impression. In the givenfacts, the prosecution’s claim that the same was in the nature of astatement under Section 161 of the CrPC therefore does not inspireconfidence.

119. It is important to note that in Exhibit PW 8/B, the deceasedhas stated that he was forcibly compelled to imbibe liquor. PW 6 Dr.Vasanthi Ramesh does not refer to any observation that would indicateor suggest that Mohd Rustam had consumed alcohol.

120. Learned counsel for the appellant has urged at great length thatif Mohd Rustam had told Mohd Humayun or the doctor that his employershad poured acid on him, DD 4A would have been recorded very differently.

121. It is noteworthy that Mohd Rustam had several opportunitiesto disclose the occurrence. It is the case of the prosecution that MohdHumayun, the brother of the deceased had received telephonic informationthat his brother was lying at the spot in an injured state. Therefore, thedeceased had opportunity to disclose the manner in which he was injuredand the particulars of the assailants to the persons who had met him atthe spot. Mohd Rustam had an opportunity to disclose the details of theoccurrence to his brother Mohd Humayun. The deceased also had contactwith the TSR driver who transported the brothers to the hospital andthereafter, at the RML Hospital, they would have met Duty Constable Ct.Daya Nand. The deceased then had opportunity to disclose the incidentto the doctor who met them in the casualty and again to the hospitalpersonnel including doctors, nurses and compounders in the emergencyward where he was treated for almost nine days. The deceased or hisbrother made no such disclosures.

122. DD No.4A which is the earliest information given by the dutyconstable. It says that Mohd Humayun had got his brother Mohd Rustamadmitted in the hospital with injuries from pouring of acid. But there isno mention in DD 4A of the manner in which the injuries were sustainedor the name(s) of the assailant(s) in this important piece of evidence. Incase the deceased had disclosed how he secured the injuries to MohdHumayun while in transit to the hospital or at any time, the same wouldhave been disclosed to PW9 Ct. Rajinder Singh who would have reportedthe same to the police station. DD No.4A makes no reference to anyaspect of the statements attributed to Mohd Rustam.

123. In 1976 CriLJ 1548 K. Ramachandra Reddy & Anr. vs. ThePublic Prosecutor, the court had an opportunity to construe allegeddeclarations attributed to the deceased in similar circumstances. Thecourt observed that the strictest scrutiny and closest circumspection hasto be applied to a statement attributed to a dead person as a dyingdeclaration which is not a statement on oath nor in the presence of theaccused and cannot be subjected to cross examination. In this case also,the court commented upon the conduct of the deceased in not disclosingor not making the disclosure statement on previous occasions if he hadthe opportunity. It was held that this was either for the reason that thedeceased was not conscious at all and was not in a position to talk toanybody or that even though he was conscious, he did not disclose theoccurrence to anybody because of the stress and essence of the assaultwhich took place at a time of darkness and he was not able to identifythe assailants. The court placed reliance on the earlier judicial precedentof the Supreme Court in Khushal Rao vs. State of Bombay (supra) andobserved that the case falls within principles 5 and 6 laid down therein.

The submission of learned counsel for the appellant in the givenfacts is therefore not without substance.

Whether the incident was possible in the manner alleged?

124. An examination of the contents of the statement attributed tothe deceased in the MLC (Exhibit PW6/A); Exhibit PW8/B and ExhibitPW8/G is also necessary.

125. The events as projected in the MLC (Exhibit PW6/A) juxtaposed

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against Exhibit PW 8/B as well as Exhibit PW8/G suffer from materialvariations, even contradictions. They do not find mention in the statementof any of the witnesses and are unsupported by the investigation on thespot of occurrence as well as where the deceased was discovered.

126. Dr. Vasanthi Ramesh has also noted in Exhibit PW6/A that theincident occurred on 4.00 p.m. on 19th July, 1997. The prosecutionwhich has led evidence of Exhibit PW8/B which states that the incidentwas at 9.00 p.m. on the 19th July, 1997. There is no explanation at allfor this.

127. It is noteworthy that Exhibit PW6/A categorically refers tobeating by a cane. The deceased however has not alluded to any beatingby a cane in Exhibit PW 8/B. There is no reference to a cane in any otherstatement attributed in the deceased. Even the inadmissible disclosurestatements attributed to the accused persons (which are wrongly exhibitedon record) make no reference to any cane. No cane is mentioned by anyof the witnesses. No recovery thereof has been effected.

128. In the MLC (Exhibit PW 6/A) Dr. Vasanthi Ramesh hascategorically referred to a singular employer. No name of the employeris mentioned. In ExhibitPW8/B the number of assailants has becomemultiple. The prosecution has not even attempted to suggest an explanation.

129. The trial court has found that Mohd Rustam was not sureabout the identity of the third appellant and therefore Exhibit PW 8/Bcannot be relied upon to convict Jaibir.

130. At the same time, the prosecution has attempted to prove thatJaibir was a driver of the truck in which the deceased was a conductorand charged him with having held the deceased with Prabhash Sharmato enable Manoj Kumar to pour acid over him. The prosecution does noteven suggest an explanation for the cuttings in the name and has filed noappeal against the acquittal of Jaibir.

131. It is trite that the dying declaration could be believed in part.Therefore, the court could rely upon Exhibit PW8/B even in part. However,the issue which has been raised before this court is whether suchstatements attributed to deceased Mohd Rustam could be treated as dyingdeclaration and conviction of the appellants could be based solely on

them or whether other admissible evidence was required.

132. In AIR 2008 SC 19 (para 23) Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, the court rejected the reliability of thedying declaration recorded by the magistrate for the reason that beforethe actual recording, he did not seek and obtain any opinion and certificateor endorsement from the duty doctor as to the physical and medicalcondition of the declarant to give the statement. The magistrate did notput any question as to whether the declarant was making a voluntarystatement and whether he was in a fit condition to make the statementand whether any sedatives have been administered.

133. Learned counsels for the appellants has also assailed therelevance and reliance on statements attributed to the deceased in theimpugned judgment also on the ground that the post-mortem reportExhibit PW 7/A and the opinion of the forensic expert does not supportthe prosecution at all or the occurrence as alleged in the dying declarations.It is essential to therefore consider the post mortem report as well as theopinion of PW7 Dr. K.L. Sharma who conducted the post-mortem therein.

134. In his cross examination PW 7-Dr. Sharma has answered aspecific question and stated that the sulphuric acid alleged to be thrownover the body of the deceased was not in sufficient quantity to causeimmediate death.

135. The doctor PW-7, Dr. K.L. Sharma has been cross examinedextensively with regard to the position of the body viz-a-viz the mode ofthrowing of the acid and which would result in the burns as resulted onthe body of the deceased. One of the suggestions put to him was answeredthus :-

“It is correct that if the person is carrying the acid of bottle andaccidently falls by breaking the same the similar type of injuriesas mentioned in post-mortem report are possible. If the deceasedwas caught hold by other party and in the erect position if theacid is poured that the injuries mentioned in post-mortem reportare no possible.”

136. Two other questions put to the doctor and the doctor’s answersthereto deserve to be considered in extenso and read as follows :-

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“Q. If the can of 2 litre full of sulphuric acid is held by oneperson and a person is caught hold by two other personsand the third person holding the can poured the acid overthe person over the body including head while the personson whom the acid is poured, then these injuries are possibleor not?

A. It is correct that under these circumstances the injuriesmentioned in post-mortem report will not be possible tobe caused in this position and in this circumstances all thefour people using holding the other party and pouring theacid shall sustain the burn injuries including all the fourpersons. Volunteered If under this position the person iscaught hold in supine position and the acid containing 2ltr. is poured upon him such injuries mentioned in post-mortem are possible. In this position (supine) if 2 ltr. qtyof sulphuric acid is poured shall cause immediate death.

Q. If a person is in supine position and 2 litre sulphuric acidis poured on his body while two persons were holdinghim then will it cause injuries on his forehead, head, bothsides chick, neck and all the lower part of the bodyincluding chest not in patches?

A. It is incorrect to suggest that the 2 litres of acid is pouredin supine position shall cause all such burn injuries overthe forehead, head, chicks, neck, front of chest andabdomen and the lower extremities. It will depend only onthe method of throwing the acid by other party at whichpart of the body.

If the person is sitting and is caught hold by two personsand acid is thrown over him these injuries are not possible.”

137. The doctor who has conducted the post mortem has thuscategorically recorded on Exhibit PW 7/A that “PM findings are consistentof pouring the sulphuric acid over the deceased in supine position byother party as suggestive by corroded distribution over his body.”

138. As per Exhibit PW8/B, Mohd Rustam had categorically statedthat Prabhash Sharma had told him to sit down, whereafter alcohol was

forced on him; he was beaten and acid was thrown over him whereafterbecause of the burning sensation he had turned unconscious and fallendown. Therefore, according to the deceased, when the acid was pouredover him, he was not in a supine position.

139. There is also no evidence that the appellants had suffered anyburn injuries which, as per PW-10 Dr. K.L. Sharma, was inevitablebecause as per Exhibit PW8/B the acid was poured while the deceasedwas sitting, that is not in supine position.

140. An examination of Exhibit PW 8/B as well as Exhibit PW8/Gagainst the testimony of the forensic expert PW 7 Dr. K.L. Sharma aswell as the post-mortem report and opinion Exhibit PW 7/A given by himthus shows that the deceased could not have received the injuries in themanner alleged to have been stated by him as recorded in Exhibit PW 8/B.

141. Upon examination of Exhibit PW6/A juxtaposed against theother statements attributed to the deceased. There appears to be substancealso in the contention on behalf of the appellants that the incident asalleged by the prosecution in the MLC (Exhibit PW6/A), Exhibit PW8/Bor Exhibit PW8/G could not have so occurred and there is doubt on thecorrectness and authenticity of Exhibit PW 8/B as well as Exhibit PW8/G.

Non-proximity of the statements attributed to the deceased and hisdeath

142. An alternate plea is urged on behalf of the appellants. It isurged that even if this court could accept that the attributed statementswere actually made by the deceased, there is no evidence that there wasany intention of the appellants to cause the death of the deceased; thatthe post-mortem report and the long period of hospitalisation of MohdRustam clearly show that the appellants could not be held guilty forcommission of the offence of murder.

143. It is trite that merely because death of the deceased occurredsome days after the offence, would not convert the offence, if heldproved, into culpable homicide not amounting to murder. In thepronouncement reported at (2002) 1 SCC 22 Patel Hiralal Joitaram vs.

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State of Gujarat, the deceased expired 14 days after being burnt. TheSupreme Court held that it was in inconceivable that the appellant wouldnot have known that setting the deceased ablaze would cause her death.Also discussing the scope and ambit of statements, which would beadmissible under Section 32 of the Evidence Act in the context of thesame being treated as dying declarations, the Supreme Court observed asfollows:-

“29. The above provision relates to the statement made by aperson before his death. Two categories of statement are madeadmissible in evidence and further made them as substantiveevidence. They are: (1) His statement as to the cause of hisdeath; (2) His statement as to any of the circumstances of thetransaction which resulted in his death. The second category canenvelope a far wider amplitude than the first category. The words“statement as any of the circumstances” are by themselves capableof expanding the width and contours of the scope of admissibility.When the word “circumstances” is linked to “transaction whichresulted in his death” the sub-section casts the net in a very widedimension. Anything which has a nexus with his death, proximateor distant, direct or indirect, can also fall within the purview ofthe sub-section. As the possibility of getting the maker of thestatement in flesh and blood has been closed once and for all theendeavour should be how to include the statement of a deadperson within the sweep of the sub-section and not how toexclude it therefrom. Admissibility is the first step and once it isadmitted the court has to consider how far it is reliable. Oncethat test of reliability is found positive the court has to considerthe utility of that statement in the particular case.”

144. The court placed reliance on the pronouncements in 1984CriLJ 1738 Sharad Birdhichand Sarda vs State of Maharashtra whereinit has been held as follows :-

“The test of proximity cannot be too literally construed andpractically reduced to a cut-and-dried formula of universalapplication so as to be confined in a straitjacket. Distance to timewould depend or vary with the circumstances of each case. ...

Sometimes statements relevant to or furnishing an immediatemotive may also be admissible as being part of the transactionof death. It is manifest that all these statement come to light onlyafter the death of the deceased who speaks from death.”

145. In (1997) CriLJ 833 (SC) Rattan Singh vs. State of H.P.,the Supreme Court held that there need not necessarily be a direct nexusbetween “circumstances” and “death”. It is enough if the words spokenby the deceased refer to any circumstance which has connection withany of the transactions which ended up in the victim’s death.

146. Injuries suffered by the deceased by the gunshot at the handsof the accused developed to toxaemia which caused his death in AIR1997 SC 234 Bhagirath vs. State of Haryana. The Supreme Court heldthat the trial court erred in holding that, as the death was not due toinjuries caused by the accused, the dying declaration was inadmissible inevidence.

147. In the pronouncement reported at (2000) 6 SCC 671 Sudhakar& Anr. Vs. State of Maharashtra, the Supreme Court had held that thestatement in question was not in the nature of the dying declaration.However, the court had pointed out the difference between the Indianlaw and the English law. It was noticed that under English law, thedeclaration should have been made under the sense of impending death,whereas under the Indian law, it was not necessary for the admissibilityof the dying declaration that the deceased at the time of making it shouldhave been under the expectation of death. The court cited with approval,the following observations of the pronouncements in 1959 (1) MLJ 246Chinnavalayan vs. State of Madras wherein the pithily put legal positionwas culled out in the following terms :-

“Thus, from a review of the authorities mentioned above and theclear language of Section 32(1) of the Evidence Act, the followingpropositions emerge:

(1) Section 32 is an exception of the rule of hearsay and makesadmissible the statement of a person who dies, whether thedeath is a homicide or a suicide, provided the statement relatesto the cause of death, or exhibits circumstances leading to the

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death. In this respect, as Indicated above, the Indian EvidenceAct, in view of the peculiar conditions of our society and thediverse nature and character of our people, has thought it necessaryto widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed andpractically reduced to a cut-and-dried formula of universalapplication so as to be confined in a strait-jacket. Distance oftime would depend or vary with the circumstances of each case.For instance, where death is a logical culmination of a continuousdrama long in process and is, as it were a finale of the story, thestatement regarding each step directly connected with the end ofthe drama would be admissible because the entire statement wouldhave to be read as an organic whole and not torn from thecontext. Sometimes statements relevant to or furnishing animmediate motive may also be admissible as being a part of thetransaction of death. It is manifest that all these statements cometo light only after the death of the deceased who speaks fromdeath. For instance, where the death takes place within a veryshort time of the marriage or the distance of time is not spreadover more than 3-4 months the statement may be admissibleunder Section 32.

(3) The second part of Clause (1) of Section 32 is yet anotherexception to the rule that in criminal law the evidence of aperson who was not being subjected to or given an opportunityof being cross-examined by the accused, would be valuelessbecause the place of cross-examination is taken by the solemnityand sanctity of oath for the simple reason that a person on theverge of death is not likely to make a false statement unless thereis strong evidence to show that the statement was secured eitherby prompting or tutoring.

(4) It may be important to note that Section 32 does not speakof homicide alone but includes suicide also, hence all thecircumstances which may be relevant to prove a case of homicidewould be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters

written by the deceased which are directly connected with orrelated to her death and which reveal a telltale story, the saidstatement would clearly fall within the four corners of Section32 and, therefore, admissible. The distance of time alone in suchcases would not make the statement irrelevant.”

148. Anything which has a nexus with his death, proximate ordistant, direct or indirect can also fall within the purview of sub-section1 of Section 32 of the Indian Evidence Act. It is the impossibility ofgetting the maker of the statement in flesh and blood that makes sucha statement admissible in evidence by virtue of sub-section 1 of Section32 of the Indian Evidence Act. Admissibility of course is the first step.Once admitted, the court is duty bound to consider how reliable thestatement is. Only thereafter, the court would be considering the utilityof the statement in the particular case.

149. In this background, it would be improper to exclude thestatements attributed to the deceased Mohd Rustam which relate to thecause of his death, or as to any of the circumstances of the transactionwhich resulted into his death for the sole reason that there is a gapbetween date of making of the statement and the date of the death.However, in the light of the other circumstances notice above, it wouldbe unsafe to rely on the alleged statements to base a finding of guilt ofthe appellants thereon.

In this case resting on circumstantial evidence, the matter does notend on an examination of only the dying declarations attributed to thedeceased. It is necessary to consider the other circumstances as well, weproceed to examine in seriatum hereafter.

Place of discovery of the deceased

150. At this stage, we may also refer to the evidence with regardto the place where the injured had been discovered. It is in the evidenceof Mohd Humayun PW 1 that the deceased was living in Zakhira.

151. The most important links in the chain of events are completelymissing.

152. PW 1-Mohd Humayun had stated that jhuggies in Amar Park

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were occupied by labourers who drink at night. He categorically statedthat his brother used to heavily drink everyday.

153. This statement is corroborated by PW 1 Mohd Humayun whohas further stated that 15-20 persons sleep on the terrace of KaranMemorial Public School and that trucks come and go throughout the dayand night near that school. It is further in the evidence that publicpersons in these places are present all 24 hours in the area.

154. PW 8 HC Ramphal Singh also stated that there was always alarge number of persons/public including truck drivers on places aroundthe Najafgarh road, Rama Road, Chambery all 24 hours and that a largenumber of public persons were present in those place during the morning.

155. So far as the discovery of the injured is concerned, apart fromthe statement in Exh.PW 8/B attributed to the deceased, the only evidenceon record is that of Exh.PW 1 Mohd Humayun who had stated thatMohd Rustam was found by him in an injured lying in naked conditionby the roadside of Amar Park, Zakhira which was near the fly over ofNew Rohtak Road near the gate of BD Credit Private Limited Motors &General Finance, Zakhira. He has further stated that Mohd Rustam wasresiding in a jhuggi near the place where he was discovered and thatthere were 250 jhuggies at that place. The location of the jhuggi was ata distance of ten steps from the road; that the BD Credit Private LimitedMotors & General Finance was at a distance of 500 to 600 yards fromKaran Memorial Public School (the sites of the offence). The policewitness refers to thousands of jhuggies.

156. Apart from a bald oral statement by PW 8-HC Rampal Singh,he has made no efforts to ascertain the alleged location of the occurrence.He has made no efforts to make inquiries from this spot. Material evidencewith regard to the manner in which Mohd Rustam reached the spot ofhis discovery, if had been unravelled, would have shed valuable light onthe persons involved in the offence and provided the link as to themanner as well as persons who caused the injury and transported theinjured Mohd Rustam from the alleged place of his offence to where hewas discovered. It cannot at all be contended that this was not a materialfact.

157. PW 8 has further stated that he had inspected the place infront of the jhuggi referred to by Mohd Rustam but did not inspect thejhuggi number WZ 85, D-273, Amar Park, Zakhira where the injuredMohd Rustam used to reside. He also stated that there was a shop nearthe spot where Mohd Rustam had found himself which spot was one anda half kilometre from Karan Memorial Public School.

158. PW 8 stated that in the morning of the 20th of July, 1997 theinjured (deceased Mohd Rustam) had found himself lying injured in frontof his jhuggi near the tea shop.

159. The deceased is stated to have discovered by his bother PW1 Mohd Humayun in nude condition. There is no recovery of the clothesof the deceased from the spot. There is no explanation at all by theprosecution as to the fate of the clothes of the deceased which he waswearing at the time of the occurrence. It, therefore, remains a mysteryas to what happened to the clothes worn by the injured person and howhe was transported from the place of occurrence to the site of hisrecovery.

160. HC Ram Phal PW 8 has stated that the Bharti Public Schoolwas also adjacent to the Karan Memorial Public School and that at thetime of his visit in the forenoon of the 20th of July, 1997, both theschools were closed. PW 8 does not appear to have found anythingunusual in the same and has stated that he felt no need to make inquiryfrom any person as to how and why these schools had closed before12.00 noon when he visited the spot.

161. The witness further deposed that apart from these two schools,Janta Dharam Kanta, Ram Dharam Kanta, Zakhira Chara Mandi, JantaTransport Company were in the same vicinity. It is in the evidence ofPW 5 & 8 that Janta Dharam Kanta and Ram Dharam Kanta are justopposite to the Bharti Public School, Janta Transport Company &Chaudhary Road Lines and Karan Memorial Public School. Yet noinvestigation at all has been undertaken. No public witness has beenexamined.

162. In para 35, the trial judge has dealt with the failure of theprosecution to explain how the deceased was transported from the place

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of occurrence to outside his hut and has observed that “the only inferenceis that after the injured became unconscious he was shifted from the spotto the place near his jhuggi by the culprits in order to shift the place ofoccurrence”. There is thus no evidence at all to support such conclusion.

Recovery of can

163. PW 8 has stated that Manoj Kumar had made another disclosurestatement on the 24th of July, 1997 and had got a plastic can of 2 litrecapacity with a handle recovered from the roof of Janta Dharam KantaThe can was having a ‘Sundrop/Sunflower’ print and a picture of childprinted on it. According to PW 8, the recovered can, smelling of acid,was sealed and taken into possession.

164. Learned counsel has urged that there was no recovery at allbased on any disclosure statement made by the accused persons. Learnedcounsel for the appellants have strongly challenged the alleged recoverynot only on the ground that the exhibit produced before the court did notrelate to its description either in the recovery memo or in the testimonyof the witnesses but also on the ground that the same was not supportedby any public witnesses.

165. PW 8 HC Ramphal Singh has stated that a large number ofpublic persons were present at the place during the morning of the 20thof July, 1997. The owners of Janta Transport Company, Janta DharamKanta, Ram Dharam Kanta as well as their employees were present intheir respective premises; that there were thousands of jhuggies behindKaran Memorial Public School; that the owners and servants in theDharam Kanta & Janta Transport Company, did not disclose their nameswhen he had tried to find out. It has been pointed out that both PW 5-Ct. Vinod Kumar and PW 8-HC Ramphal Singh have stated that ownersand employees of the Janta Dharam Kanta and also passersby wereavailable at the time the recovery proceedings were conducted. PW 5-Ct. Vinod Kumar has stated that no pubic person from the Janta DharamKanta, nearby Dharam Kantas or passersby were asked to join the recoveryproceedings.

166. One of the circumstances to fault the recovery by the appellantsis premised on the statement by PW 8 HC Ramphal Singh that he did not

fill up the CFSL form. It has also been pointed out that there areunexplained contradictions in the deposition of the witnesses with regardto the deposit of the alleged recoveries in the malkhana as well as thesamples which were sent for forensic examination.

167. In this regard, learned counsel has drawn our attention to theextract of the malkhana register Exhibit PW 3/A recording the deposit ofthe can in the malkhana wherein a reference to the case number as wellas the statutory provisions under which it was registered is made. Thecontention of learned counsel for the appellant is that Section 302 of theIPC was added to the FIR only after the death of Mohd Rustam on 28thJuly, 1997; that the reference to Section 302 of the IPC in the malkhanaregister shows that the entry was made only after the death of MohdRustam and has been ante-dated to read as 24th July, 1997. The submissionis that this entry casts doubt on the correctness of the recovery.

168. It is in the evidence of PW-8 that Manoj Kumar had got thecan recovered from the roof of the Janta Dharam Kanta which wasadjacent to the Ram Dharam Kanta; its office was in a room of about8 ft x 6 ft and the roof was at a height of 8-9 ft. PW 8 has also explainedthat there was no staircase to go to the roof of the Janta Dharam Kantaand that the accused Manoj Kumar alone had climbed to the roof withthe help of the protruding bricks in the external wall of the Janta DharamKanta office. PW 8 HC Ramphal Singh categorically states that none elsehad climbed the roof. The witness has also categorically stated that therecovery was effected in the presence of PW 5 Ct. Vinod Kumar andthat no member of the public had been joined in the recovery.

169. It is essential to advert to the deposition of PW 5 Ct. VinodKumar on this recovery, as there is material contradiction between thedeposition of PW8 HC Ramphal Singh and PW5 Ct. Vinod Kumar onimportant aspects of the recovery. PW-5 explains that the two policemen had reached the Janta Dharam Kanta at about 5/5.30 p.m. PW 5further categorically states that HC Ramphal also climbed to the roof ofthe Janta Dharam Kanta alongwith Manoj Kumar and recovered the plasticcan from the roof. He states that the height of the roof was not toomuch; that he could see the roof standing below and that accused Manojpicked up the plastic can on the roof and handed it over to HC Ramphal.

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PW 5-Ct. Vinod Kumar categorically states that it was PW 8-HC RamphalSingh who brought the can down from the roof. Interestingly, thetestimonies of these two police officers, the only two witnesses to therecovery, cannot be reconciled at all or stand together.

170. In his cross examination, PW 8 HC Ramphal Singh hascategorically stated that there was no cap on the mouth of the plasticcan. He further clarifies that the “mouth of the plastic can was foundopened as there was no cap” and that the cap was in “perfect conditionand was not broken”.

In the cross examination of PW 8, it is pointed out that the mouthportion of the can (Exhibit P-1) produced in court was in a brokencondition and it also had an inner lid. PW 8 has volunteered that “therewas no such inner lid in the mouth of the plastic can when he hadrecovered and sealed the same”. The witness however has denied thesuggestion that the plastic can produced in the court is not the one whichwas recovered on 24th July, 1997.

171. On the aspect of the can being open, PW 5-Vinod Kumarcorroborates the statement of PW 8. He has also stated that the canwhich was got recovered as per the disclosure statement of ManojKumar was without “lid” and that the can when got recovered was notbroken. He has unequivocally stated that there was no inner lid in themouth of the plastic can which was recovered on the disclosure statementof Manoj Kumar.

172. In this regard, reference can be made to the statement attributedto the accused Manoj Kumar as the disclosure statement claimed to havebeen recorded by PW 8 HC Ramphal Singh in the presence of PW 5,which has been exhibited on record as Exhibit PW 5/K. It is noteworthythat the Exhibit 5/K carefully records that on the can, “pakadne ke liyehandle hai” (reads as ‘there is a handle affixed on the can for holding it,when translated’)”. The witnesses to the recovery have also stated so.A perusal of Exhibit PW 5/K shows that in the description of the can,the accused is alleged to have has described the can stating that “jiskemuh par dhakkan nahi hai” (which translates as a can which had nocovering on its mouth).

173. The learned trial judge has also missed the noting in the CFSLreport dated 28th December, 1998 (Exhibit 10/F) wherein the articleexamined has been described as the exhibit which was received forexamination by it as “one empty plastic can with a plastic cap”.

174. Even though the learned trial judge has attempted to draw adistinction between “inner lid” and a “cap like lid” on the mouth of thecan, however PW 8-HC Ramphal Singh has categorically stated that onthe mouth of the can (Exh P-1) produced before the court, there wasa plastic inner lid and has volunteered in court that there was no suchinner lid in the mouth of the plastic can when recovered and sealed. Therecovery memo Exhibit PW 5/K categorically records that there was no“dhakkan” on the mouth of the yellow plastic can which was recovered.

175. At every place, when the witnesses make reference to the can,it is categorically stated that the can was of two litre capacity. They havecarefully noted and stated that there was a handle on the can to hold it.The witnesses have carefully mentioned not only the colour of the canbut also the picture on it. Therefore, there can be no doubt that if thereference in their statement was to an inner lid in contradistinction to acap, it would have been noted.

176. It is in the deposition of PW 5-Ct. Vinod Kumar and PW 8HC Ramphal Singh that there were several public persons and passers-by at and near the Janta Dharam Kanta. PW 8 had stated that he had seenthe owner and employees of Janta Dharam Kanta sitting inside the officeand that he did not ask any of them to put their signatures on the saidseizure memo. HC Ramphal Singh and Ct. Vinod Kumar thus calls uponthe court to believe that the owners of the premises would not beconcerned as to why the accused Manoj Kumar, with or without HCRamphal Singh, was climbing on to the roof of their premises or that nomember of the public would have become curious in such an eventuality.They would expect the court to accept the narration of events as if suchan event was a daily occurrence in the crowded locality.

177. The appellants have placed reliance on the pronouncement ofthe Supreme Court reported at (1998) 1 JCC (SC) 57 State of Punjabvs. Sarup Singh to urge that the recovery not being in the presence ofindependent persons must be disbelieved.

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178. Reliance has also been placed on the pronouncement of thiscourt in (1998) 1 JCC Delhi 94 Preetam Singh vs. The State whereinthis court has observed as follows :-

“11. Further the alleged recovery of blood stained clothes, shoesand titan watch from the house of Pritam Singh had taken placeon 26th July, 1989 which would mean that for period about twoand half months shoes and clothes remained in same conditionwithout being washed. It has also come in evidence that housefrom where the recovery was made was open and not in theexclusive possession of Pritam Singh. There is no independentwitness to the alleged recovery. Even this recovery becomesdoubtful. The same is the position in respect of the recovery ofclothes etc., from the house of Lal Singh on 26th July, 1989.The house of Lal Singh was known to the police earlier theneven the arrest of Lal Singh on 24th July 1989. The police hadearlier raided the house. It has not been explained why no searchwas conducted earlier. The keys of the lock of the room fromwhich the goods were allegedly recovered had been kept nearbyunder a brick. Neither the sketch of the said house nor that ofthe room was prepared nor the keys and lock were seized. Againthere was no independent witness to the recovery. The recoveryfrom the house of Lal Singh, which is one of the circumstancerelied upon for convicting Lal Singh itself become doubtful. Fromthe manner of the recovery of the goods from the house of boththe accused and also the manner of the recovery of the goldjwellery, we cannot rule out the possibility of the planting of therecovered articles.”

179. Recoveries effected by the prosecution have been disbelievedby the Supreme Court for the reason that the recoveries were allegedlymade from a place accessible to all and also for the reason that theaccused persons had made no effort to conceal the recovered item in thepronouncement reported at (1979) CriLJ 1075 : AIR 1979 SC 1262Bahadul vs. State of Orissa.

180. PW 8 has tried to explain this deficiency stating that he hadasked the owner and employees of the Janta Dharam Kanta to sign the

seizure memo but they had declined and that they did not disclose theirnames and other particulars. PW 8-HC Ramphal Singh does not give anydetails. No action was taken by him.

181. Coming to the malkhana register, it is not possible to discernas to whether Section 302 of the IPC has been added later in the registerinasmuch as the original of the register is not before the court. It is notpossible to make out variation, if any, in the writings out from thephotocopy exhibited on record.

182. Even if we were to ignore this contention, certain statementsby the witnesses in this regard are noteworthy. PW 3 HC Ajab Singh wasworking as the MHCM in the police station Malviya Nagar who hasdeposed that on 24th July, 1997, HC-Ramphal Singh has deposited aparcel containing a plastic can which has been sealed with the seal ofPPS which was recorded in the malkhana register as serial no.2602,extract whereof has been proved as Exhibit PW 3/A. He further submitsthat on 29th July, 1997, PW 10 Addl. SHO P.P. Singh has deposited asealed parcel with the seal of KLS containing a blood sample as well asthe sample seal (Exhibit PW 3/B).

183. PW 3 HC Ajab Singh is categorical that on 11th September,1997, he had sent both the parcels which were deposited with him on24th and 29th July, 1997 to the CFSL, Chandigarh vide RC No.78/21through Ct. Virsa Singh which fact has been recorded against the aforesaidentries. Learned counsel for the appellants has emphasised that the timeof deposit of the parcels and samples is not shown in the register.

184. Reliance is placed by Ms. Ritu Gauba, learned APP on thepronouncement of the Supreme Court reported at (2011) 1 SCC (Cri)1191 Jarnail Singh vs. State of Punjab to urge that mere delay insending a narcotic sample to the office of the chemical examiner was notsufficient to conclude that the sample was tampered with. The courtobserved that in this case, there was sufficient evidence to indicate thatthe delay, if any, was wholly unintentional. The recovery of the narcoticsubstance was also found clearly established.

In this case, there is disputes of the date as well as the laboratoryto which the sample was sent.

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185. As against this categorical statement of PW 3-HC Ajab Singh,PW 4-Ct. Virsa Singh has stepped into the witness box and stated thathe has collected two parcels from MHCM on 25th September, 1997 withform CFSL vide RC No.71/21 and has deposited the same in FSL,Malviya Nagar, New Delhi on that very day. He has also stated that hehad handed over the receipt of the FSL to the MHCM. PW 5-Ct. VirsaSingh even gives the time of about 10.15 a.m. when he departed for theFSL, Malviya Nagar from the malkhana.

186. The prosecution has proved a report dated 28th December,1998 of the CFSL, Chandigarh as Exhibit PW 10/F. The CFSL reportrefers to only one sealed parcel which was sealed with seals of RPScontaining Exhibit 1 which was the plastic can.

There is no reference to any other parcel or sample at all.

187. No explanation was placed before the learned trial judge as toexplain the contradictions between the statements of PW 3 and PW 4.There is not even a whit of an explanation with regard to the variationeven in the numbers of samples sent for forensic examination or thereport. Both PW 3 and PW 4 referred to two parcels whereas there iscomplete silence in the testimonies with regard to the second sample.

188. There are material contradictions in the depositions of the twopolice officials, the only witnesses to the recovery.

189. In the instant case, the can allegedly recovered is in dispute.We find there is a categorical statement in the evidence of PW 8 to theeffect that Exhibit PW 2 produced in court is not the can which wasrecovered. There is thus no confusion at all that the can produced incourt was not the can which was recovered on 24th July, 1997.

As per PW 5, it is a commonly available article and the abovenarration, all these circumstances, put the entire controversy at restrender its recovery on the disclosure by the appellant doubtful.

190. There is doubt with regard to the date and time of the recovereditem being deposited in the malkhana as well as the laboratory to whichit was sent for investigation.

191. Learned counsel for the appellants have placed reliance on the

pronouncement reported at 2000 CriLJ 2083 Des Raj @ Dass vs. TheState in support of the contention that non-filling of the CFSL form wasa circumstance that went against the prosecution. The appellants placereliance on the judgment reported at 1998 II AD (Del.) 451 Afsar Hussainvs. NCT of Delhi to urge that the police had tampered with the allegedrecovery as manifested from the testimony of PW-5 and PW-8.

192. The learned trial judge has relied on the FSL report which hasfound kerosene on the can which was sent to it for testing. Given thecontroversy with regard to the identity of the can and the delay insending the same for the forensic examination, the trial judge has attachedunwarranted weight to the report of the laboratory.

193. Even if the contradictions in the statements of the witnessesas well as the documents even with regard to the date on or the laboratoryto which it was sent is ignored, the prosecution fails to explain as to whya recovery effected on 24th July, 1997 was sent to the Forensic ScienceLaboratory only in September, 1997. The recovery of the can based onan alleged disclosure is certainly doubtful. The prosecution has failed toprove either the disclosure or the recovery beyond reasonable doubt.

Arrests of the appellants

194. Learned counsel for the appellants has strongly urged that theinvestigating officer has prepared no arrest memos of the accused persons.Inasmuch as the accused persons were enlarged on police bail and laterby the court, the failure to place arrest memos on record by itself maybe of no real value. However, when examined against the entire sequenceof events and the evidence placed on record, the time of arrest may beof importance. Inasmuch as there is no evidence at all with regard to theincident other than statements attributed to the deceased and the accusedpersons. Even more unusual is the information attributed to a secretinformer who is stated to have told PW 5 Constable Vinod Kumar and8 HC Ramphal Singh on 20th July, 1997 at the Ram Dharam Kanta thatone of the culprits, namely Prabhash, involved in the incident which hadoccurred the previous day was present at a tea shop near that place.Prabhash Sharma is stated to have been arrested and made a disclosurestatement.

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and the evidence of the Professor and Doctor of Forensic Medicine. Itwas the conflict and inconsistency between the two dying declarationsand the evidence of the Forensic Expert which remained unimpeachedwhich raised a great suspicion in the mind of the court. The court heldthat it was the duty of the prosecution to establish the charge against theaccused beyond reasonable doubt and that the benefit of doubt wouldalways go in favour of the accused.

201. The Supreme Court reiterated the well settled principle that thedying declaration was a substantive piece of evidence to be relied on,provided it was proved that the same was voluntary and truthful and thevictim was in a fit state of mind. In the facts of that case, the courtobserved that the evidence of Professor of Forensic Medicine castsconsiderable doubt with regard to the condition of the deceased to makea voluntary and truthful statement. The court observed that it was notbecause it was the requirement in law that the doctor who certified aboutthe condition of the victim to make the dying declaration is required tobe examined in every case. But it was the obligation of the prosecutionto lead corroborative evidence available in the peculiar circumstances ofthe case. The medical evidence and surrounding circumstances altogethercannot be ignored and kept out of consideration by placing exclusivereliance upon the testimony of person recording a dying declaration.

202. In the instant case, if the statements attributed to the deceasedare kept aside, the only piece of evidence sought to be proved on recordis the alleged recovery which too rests on a disclosure statement attributedto the accused. The prosecution has produced no evidence to show thatthe accused was at the place of the incident. There is then also nomaterial, let alone proof of the accused persons being last seen with thedeceased. The circumstances on record do not exclude every hypothesisother than guilt of the accused. In similar circumstances, in AIR 2008SC 1558 Vinay D. Nagar vs. State of Rajasthan, it was held that theaccused was not liable to be convicted.

203. The unfolding of the events or the offence as suggested by theprosecution is not supported by even the spot inspection. PW 8 HCRamphal Singh has stated that he visited the site on 20th July, 1997. Hedoes not state that he found any signs of the occurrence at the site. The

195. No further steps appeared to have been taken till 24th of July,1997 for three days after the occurrence.

196. No timing of the sequence of events on 24th July, 1997 isavailable anywhere on record. No arrest memo has been produced beforethis court. But it is doubtful that any person involved in such a heinousoccurrence and offence, who are alleged to have run away from the spotafter the incident, would loiter around at the scene of occurrence, moreso when the police had earlier visited the spot and they would be awarethat the accused persons were being searched for.

197. Learned counsel has placed reliance on the pronouncement ofthe Supreme Court reported at 1997 CriLJ 743 D.K. Basu vs. State ofWest Bengal in support of his contention that there is a huge cloud overthe alleged arrests and, therefore, over the disclosures, in the absence ofthe arrests memos. It is submitted that the date and time of the arrestdeserves to be disbelieved and that the disclosures are completely unreliableand ought not to be believed.

Missing links

198. The trial judge has dealt with each of the circumstances withregard to the recovery of the plastic can; the failure to fill the CFSLform; the delay in sending the exhibits to the CFSL; non-existence of thearrest memos and the doubt with regard to the can produced in court,as individual pieces of evidence and for each of the above, held that theywould not be sufficient to acquit the appellants.

199. What was required to be undertaken was a holistic examinationof the circumstances and a view taken on the totality of the materialwhich was placed before the trial court which has not been undertakenin the present case.

200. In AIR 2008 SC 19 Nallapati Sivaiah vs. Sub-DivisionalOfficer, Guntur, the court observed that the cumulative factors andsurrounding circumstances make it impossible to rely upon the dyingdeclarations. It was observed that the circumstances rendered it impossibleto ignore the evidence of the doctor and professor of forensic medicine.It was not a question of choosing between the eye-witness account asregards the condition of the victim to make a statement on the one hand

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prosecution case is that the deceased Mohd Rustam was beaten beforeacid was poured over him. If the incident occurred as claimed by theprosecution, then two persons were required to hold him so that the acidcould be poured clearly suggesting resistance by the deceased. There isno sign of any violence or resistance or any evidence of the occurrenceto be found in the depositions of any of the witnesses or in any of thedocuments.

204. While HC Ramphal Singh (PW 8) states that he prepared thesite plan on the pointing out of PW-5 Mohd Humayun. Constable VinodKumar who reached the site makes no mention of the presence of MohdHumayun on the site.

205. A perusal of Exh.PW 8/E would show that it makes no referenceat all to Mohd Humayun or that the same has been prepared on hispointing out. It does not even contain Mohd Humayun’s signatures orthumb impression. It is important to note that the site plan, if it had beenprepared on the pointing out of Mohd Humayun would have reflected thelocation of the jhuggies, especially the spot where he had found hisbrother in the injured condition as alleged, an important fact, which ismissing.

206. PW 1 Mohd Humayun did not reside with his brother. He doesnot remotely suggest that he visited the spot with PW 8 or pointed outany spot to him. There is a clear shadow of doubt as to whether the siteplan Exhibit PW8/E was prepared by the PW 8-HC Ramphal Singh on thepointing out of Mohd Humayun.

207. The learned trial judge has erred in holding that the offencewas committed inside the premises or at odd hours. The judge has alsofallen into error in observing that the case did not involve any eyewitnesses. The evidence before this court reflects the failure of theinvestigating officer to join any persons in the investigation. Even the siteplan Exhibit PW 8/E reflects that the incident occurred in the open areaoutside the rooms. The incident as per Exhibit PW 6/A occurred at 4p.m. while Exhibit PW 9/B suggests that it was at 9 p.m on 19th July,1997 which was in the summer months. Be it 4 p.m. or 9 p.m., in themonth of July in Delhi in summer the same is certainly not an odd hourunder any stretch of imagination when people would be indoors. This is

more so when the spot has been shown as located in the middle of thetransport offices and there is evidence of the same being operational for24 hours. It is a hard reality in summer heat, as has been proved inevidence, there are more people outside than inside jhuggies, apart fromthe hustle and bustle of transporters, operators, drivers, conductors,labours etc. Both the area where the incident occurred as well as theplace where the deceased found himself were densely populated and inthe open area.

208. The prosecution has made no effort at all to investigate or findout as to whether there were any witnesses to any aspect of the matter.Not a single public witness has been examined, either from the place ofthe occurrence or the spot from which injured found himself on the nextmorning or any effort as to how the deceased was transported.

209. There is no justification for the casual investigation. Merelybecause initially the FIR was registered under Section 324 of the IPC andnot under section 302 of the IPC. It is also no reason for diluting theinvestigation or the responsibilities of the police officers. There is noevidence at all of any follow up in the matter by the investigating officeror the gaps in the investigation between 20th till 4.00 p.m. on 24th July,1997. The police has again not proceeded in the matter at all after 24thJuly till 28th July, 1997, not even to make a query from the hospital withregard to the condition of the injured person.

210. What in any case is the investigation and the evidence onrecord in this case? Only collection of the MLC; statements attributed tothe deceased; the accused persons, and police officers; an alleged disclosureleading to recovery of a can which was not produced in court, a forensicreport and nothing else.

211. The instant case manifests not only an inept investigation butalso of the failure to even prove certain essential and basic facts beforethe trial court.

212. Ms. Ritu Gauba has relied on Sunder Singh vs. State ofUttaranchal (supra) in support of her submission that casual and carelessand incompetent investigation would not result in the accused gettingunfair advantage. There can be no dispute at all with this principle.

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However this very principle cannot be brought into play by the prosecutionto overcome the material deficiencies in the case of the prosecution indischarging the onus and burden of proof on it.

Motive

213. So far as motive is concerned, the learned trial judge has heldthat there was no apparent reason for the deceased to attribute injuriesto the appellant. If the case of the prosecution was to be accepted, it hasbeen alleged that Prabhash Sharma was the employer of the deceased andwas owing him salary. The very reason which has been asserted as amotive for the appellants to cause the injuries to the deceased would bea reason for the deceased who would be agonised over the denial of hiswages for him to name them.

214. It is submitted that there was no evidence of any mark ofviolence between the deceased and the accused. No motive for the crimehas been suggested or identified by the prosecution. The submission isthat no incriminating evidence linking the appellants to the offence hasbeen brought on record. The finding of guilt cannot be based onpresumption. It is pointed out that the accused persons were found nearthe place of occurrence. Learned counsels would urge that all thesecircumstances point towards the innocence of the appellants. Reliance isplaced on the precedent reported at (2008) 5 SC 697 Dinesh Borthakurvs. State of Assam.

215. In 2010 AIR SCW 5105 Babu vs. State of Kerala, no directevidence was available regarding taking or administering poison; materialwitnesses not examined; no motive was established on the part of theaccused; recovery of the poison (which allegedly caused the demise ofthe deceased). The court observed that in a case of circumstantial evidence,the burden on the prosecution is always greater. The acquittal of theaccused by the trial court on evaluation of the credibility of the witnesseswas held justified.

Given the challenge to every piece of evidence on record, thepresent case is similar to Babu vs. State of Kerala (supra).

216. So far as corroboration of the allegation of beating in ExhibitPW 8/B is concerned, the trial court has relied on the injury noticed on

the ‘lt foot’ noticed in the MLC Exhibit PW 6/A. The MLC refers to asingular employer without naming any assailant. However, while ExhibitPW 6/A refers to “beating by a cane”, Exhibit PW 8/B refers to “beatingby three persons” without adverting to any cane.

217. In AIR 1997 SC 1526 Rehmat vs. State of Haryana, theconviction of the appellant was set aside inter alia for the reason that themedical papers of the complainant in the primary health centre where hehad gone for treatment not mentioning the name of the assailant thoughit was a medico legal case.

218. Placing reliance on AIR 1975 SC 1962 Balaka Singh & Ors.vs. The State of Punjab, it is contended that the omission to name theaccused in the inquest report which was not explained by the prosecutionalso throw doubt on the complicity of the accused.

219. Learned APP has placed reliance on the pronouncement of theSupreme Court reported at (2011) 1 SCC (Cri) 923 State of Uttaranchalvs. Krishna Master to urge that failure to mention the name of theaccused in the inquest is not fatal.

220. In support of the submission that the evidence of PW1 MohdHumayun can be relied upon, even though he has been declared hostileby the prosecution, reliance is placed by Ms. Ritu Gauba, learned APPon AIR 2011 SC 3753 Mrinal Das & Ors. vs. State of Tripura. Thiswell settled principle also does not take the case of the proesucution veryfar. Ms. Gauba, learned APP has urged that the testimony of PW1proves that the deceased was an employee of Sh. Prabhash Sharma. Thisfact also does not carry the prosecution case very far. As per ExhibitPW8/B, the deceased was claiming that he had gone to seek two monthswages from his employer whereas PW1 Mohd Humayun has deposedthat the deceased was employed for merely a period of fifteen days withPrabhash Sharma. In Mrinal Das (supra), there was eye witness evidenceapart from the testimony of the hostile witness. In this case, apart fromthe hostile witness, there were five eye witnesses who identified theaccused persons (para 42 to 44). There can be no dispute that in acriminal trial, credible evidence of even hostile witnesses can form thebasis of a conviction. The evidence of a hostile witness can be relied

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upon at least up to the extent, he supports the case of the prosecution.The testimony of the witness has been considered at length herein andcommented upon.

Conclusion

221. We find that there is no discussion at all in the judgment withregard to commonality of intention to cause the death of Md Rustam. Noevidence at all on this aspect is available. In the light of the abovediscussion, we find that the prosecution has miserably failed to establishthe unbroken chain of circumstances which it was required to do so inlaw in order to bring home the charge of guilt of the appellants in thecase resting on circumstantial evidence.

222. It is trite that inculpatory facts proved on record must beincompatible with the innocence of the accused and incapable ofexplanation, other reasonable hypothesis with that of guilt of the accusedas was reiterated by the Supreme Court in (1992) 2 SCC 86 State ofU.P. vs. Ashok Kumar Srivastava.

223. It is settled law that if there is some material on record whichis consistent with the innocence of the accused which may be reasonablytrue, even though it is not positively proved to be true, the accusedwould be entitled to acquittal. In (1973) 2 SCC 793 Shivaji SahabraoBobade vs. State of Maharashtra (Check), the Supreme Court hadstated that if two views are possible on the evidence adduced in the case,one pointing to the guilt of the accused and the other to his innocence,the view which is favourable to the accused should be adopted.

224. In the light of the above discussion, we have no hesitation inholding that the impugned judgment dated 5th December, 2001 and theorder on sentence dated 6th December, 2001 are not sustainable in law.The same are hereby set aside and both the appellants are acquitted.Since the sentence of appellants No.1 and 2 was suspended vide ordersdated 1st March, 2002 and 3rd February, 2003 respectively, the saidorders stand vacated. The surety bonds of both the appellants standcancelled and sureties discharged.

ILR (2012) 6 DELHI 72FAO

RAMESH KUMAR ….APPELLANT

VERSUS

MOHD. RAHEES & ORS. ….RESPONDENTS

(VEENA BIRBAL, J.)

FAO NO. : 256/2012 DATE OF DECISION: 01.06.2012

Code of Civil Procedure, 1908—Order IX, Rule 13—Inproceedings under Section 163A, Motor Vehicles Act,the appellant being owner of the offending vehiclefiled the written statement but thereafter, stoppedappearing and was proceeded exparte leading toexparte award against him—Appellant movedapplication under Order IX Rule 13 alleging that hewas informed by his counsel that appellant need notcome to court and counsel would keep track of thematter and on being again contacted, the counseltold him that Insurance Company would do the needfuland subsequently, appellant received notice ofrecovery—MACT dismissed the application—Hence theappeal—Held, after filing the written statement theappellant stopped appearing and the matter was listedon four dates after which the appellant was proceededexparte, though some proxy counsel appeared but noevidence was led despite opportunity—Held, conductof appellant shows that he was not vigilant in pursuingthe matter, no infirmity in the order of MACT.

The learned ADJ has dismissed the application vide impugnedorder dated 06.03.2012 by holding that no sufficient causehas been stated in the application. Perusal of the materialon record shows that the appellant/respondent no.2 had

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filed the written statement before the trial court on 22.07.2006.On 01.08.2007, there was no appearance on his behalf andon that day he was proceeded ex parte. Thereafter, thematter was listed on 27.09.2007, 19.12.2007 and 31.03.2008and on 01.07.2008 respectively. The learned trial court hasnoted that on these dates proxy counsel for the appellanthad appeared. Despite opportunity given, no evidence wasled on behalf of the appellant/respondent no.2. Theapplication for setting aside the impugned order is filed on03.02.2011. Nothing is stated in the application as to onwhat date the appellant came to know that he was proceededex parte. The name of the counsel who had allegedlyinformed him that he need not worry in the matter and theinsurance company would do the needful is also not stated.There is nothing on record to show that as to what actionhas been taken by the appellant against the counsel whohas allegedly stated him so. The appellant was proceededex parte on 01.08.2007. The award granting compensationhas been passed on 16.03.2010. There is gap of two yearsand seven months. The present are proceedings for thegrant of compensation arising out of vehicular accident. Theappellant is the owner of the offending vehicle. He hasremained in slumber for the aforesaid period withoutbothering as to what was happening in the matter. Hisconduct shows that he has not been vigilant in pursuing thematter. Considering the nature of the case, the appellantought to have been vigilant in the matter. It has also notbeen stated as to when he had received the notice of theexecution petition as is alleged by him. The appellant hadremained negligent in pursuing the case. Ld. ADJ has rightlyheld that the application does not disclose any good orsufficient cause for setting aside ex parte proceedings. Noillegality or infirmity is seen in the impugned order.

The appeal stands dismissed. (Para 4)

[Gi Ka]

APPEARANCES:

FOR THE APPELLANT : Mr. Tarun Aswani, Adv.

FOR THE RESPONDENT : Mr. S.K. Ray, Adv.

RESULT: Appeal dismissed.

VEENA BIRBAL, J. (ORAL)

1. Present is an appeal under Order XLIII Rule 1(d) of CPC forsetting aside the impugned order dated 06.03.2012 by which the learnedtrial court has dismissed the application of the appellant under Order 9Rule 13 read with Section 151 CPC.

2. A petition under Section 163A of Motor Vehicles Act 1988 wasfiled before the Motor Accident Claims Tribunal, Delhi (hereinafter referredto as the Tribunal) by parents of the deceased for grant of compensationfor the death of late Master Shadab caused in the road vehicular accident.In the said petition, the appellant herein i.e. respondent no.2 is the ownerof the offending vehicle TATA 407 bearing no. DL-1LE-4866. Theappellant/respondentno.2 initially contested the said petition by filing writtenstatement and thereafter stopped appearing in the matter and was proceededex parte on 01.08.2007. The claim petition was decided vide award dated16.03.2010 and compensation of Rs.3,75,000/- with interest @ 7.5 %per annum was awarded to the claimants i.e. respondent nos.1 and 2including the interim award amount.

3. The appellant/respondent no.2 had moved an application underOrder 9 Rule 13 read with Section 151 CPC on 03.02.2011 before theTribunal alleging therein that the appellant was informed by his counselthat the insurance company/respondent no.4 herein has informed thecourt that conciliation was not possible in the matter. It is alleged thatthereafter the counsel for appellant had informed him about the proceedingson 12.12.2006 and his counsel had informed him that appellant need notcome to the court. However, in order to keep track in the matter, theappellant again contacted his counsel who told him that he need notworry and insurance company will do the needful. However, after fewdays, the appellant received the notice of execution for the recovery ofamount awarded in favour of the claimants/respondent nos.1 and 2. Afterthe receipt of said notice, the appellant came to know that he was

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proceeded ex parte in the matter. It is stated that due to bonafide reasons,the appellant was not appearing before the learned trial court, as such,the impugned order be set aside and appellant be allowed to contest thepetition on merits.

4. The learned ADJ has dismissed the application vide impugnedorder dated 06.03.2012 by holding that no sufficient cause has beenstated in the application. Perusal of the material on record shows that theappellant/respondent no.2 had filed the written statement before the trialcourt on 22.07.2006. On 01.08.2007, there was no appearance on hisbehalf and on that day he was proceeded ex parte. Thereafter, the matterwas listed on 27.09.2007, 19.12.2007 and 31.03.2008 and on 01.07.2008respectively. The learned trial court has noted that on these dates proxycounsel for the appellant had appeared. Despite opportunity given, noevidence was led on behalf of the appellant/respondent no.2. The applicationfor setting aside the impugned order is filed on 03.02.2011. Nothing isstated in the application as to on what date the appellant came to knowthat he was proceeded ex parte. The name of the counsel who hadallegedly informed him that he need not worry in the matter and theinsurance company would do the needful is also not stated. There isnothing on record to show that as to what action has been taken by theappellant against the counsel who has allegedly stated him so. The appellantwas proceeded ex parte on 01.08.2007. The award granting compensationhas been passed on 16.03.2010. There is gap of two years and sevenmonths. The present are proceedings for the grant of compensationarising out of vehicular accident. The appellant is the owner of theoffending vehicle. He has remained in slumber for the aforesaid periodwithout bothering as to what was happening in the matter. His conductshows that he has not been vigilant in pursuing the matter. Consideringthe nature of the case, the appellant ought to have been vigilant in thematter. It has also not been stated as to when he had received the noticeof the execution petition as is alleged by him. The appellant had remainednegligent in pursuing the case. Ld. ADJ has rightly held that the applicationdoes not disclose any good or sufficient cause for setting aside ex parteproceedings. No illegality or infirmity is seen in the impugned order.

The appeal stands dismissed.

CM 10613/2012 (stay)

In view of above order, no further orders are required on thisapplication. The same stands disposed of accordingly.

ILR (2012) 6 DELHI 76CM (M)

OMAXE LTD. & ORS. ….PETITIONERS

VERSUS

ROMA INTERNATIONAL PVT. LTD. ….RESPONDENT

(M.L. MEHT A, J.)

CM(M) NO. : 729/2012 WITH DATE OF DECISION: 02.07.2012CM NO. : 10873/2012 & 10874/2012

Code of Civil Procedure, 1908—Order 8, Rule 1—Limitation Act, 1963—Section 5—Constitution of India1950—Article 227—Copy of suit for recovery wasserved on 17th August, 2010—Though on 1stNovember 2010, petitioners appeared, but WS was notfiled—Thereafter, matter was adjourned on few datesand it was only on 4th February, 2011 that petitionersfiled an application under section 5 of Limitation act r/w section 148 and 151 of CPC seeking condonation ofdelay in filing written statement mainly on ground thatpetitioners were involved in construction of varioussites and the documents pertaining to this case werenot traceable and could only be traced after muchefforts—It was also averred that it took some time torequisition the relevant documents and on receiptthereof the same were sent to their counsel for

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preparing WS and in the process, the filing of WS gotdelayed –Said application was dismissed and reviewagainst said order was also dismissed—Held in instantcase, plea that was taken that documents weremisplaced at some site and could be traced only aftermany efforts, is apparently vague and irresponsible—Similar is plea that documents were given to counselwho took some time to prepare WS—In backdrop ofmandatory provision of law regarding filling of WS,pleas taken for seeking condonation are extremelyvague and devoid of any merit.

After the amendment of Order 8 Rule 1 CPC, an obligationis casted on the defendant to file WS within 30 days afterservice of summons on him. However, for the reasons to berecorded in writing the court may, in a given case, alsoextend the time up to 90 days for filing written statement.There is no doubt that the provisions contained in Order 8Rule 1 CPC is directing and not substantive and that in anappropriate case, on the defendant showing good cause ofnot being able to file the WS within the period of 90 days,the court can extend the time. But it is trite that the timecould only be extended in exceptional hard cases. It wasapparent from the legislative intention which has fixed theupper time limit as 90 days. Thus, the discretion could beexercised by the Court to extend the time not in routine andon the mere asking of the defendant. It is more so when theperiod of 90 days stands expired. As per Salem AdvocateBar Association, T amil Nadu Vs. UOI AIR 2005 SC 3353,the discretion of the court to extend the time could not beexercised frequently and routinely so as to nullify the periodfixed by Order 8 Rule 1 CPC. (Para 6)

Important Issue Involved: Provisions contained in Order8 Rule 1 CPC is directive and not substantibe and in anappropriate case, on defendant showing good cause of notbeing able to file WS within period of 90 days, court canextend time. Thus, discretion could be exercised by Courtto extend time not in routine and on mere asking of thedefendant. It is more so when the period of 90 days standsexpired.

[Ta Si]

APPEARANCES:

FOR THE PETITIONERS : Mr. Mukti Bodh, Advocate.

FOR THE RESPONDENT : None

CASE REFERRED TO:

1. Salem Advocate Bar Association, Tamil Nadu vs. UOIAIR 2005 SC 3353.

RESULT: Dismissed.

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution assails orderdated 06.07.2011 of the learned Additional District Judge whereby anapplication for condonation of delay in filing Written Statement by thepetitioners was dismissed. It also assails order dated 30.03.2012 wherebyreview application of order dated 06.07.2011 was dismissed by the learnedADJ.

2. The respondent filed a suit for recovery against all the threepetitioners. As per record, notices were sent to the petitioners by SpeedPost on 13th August, 2010. The AD card bore the stamp of 17th August,2010 of the Post Office. This testified that the petitioners were servedon 17th August, 2010. On 1st November 2010 the petitioners appeared,but the WS was not filed. Thereafter the matter was adjourned on fewdates and it was only on 4th February, 2011 that the petitioners filed anapplication under section 5 of Limitation Act r/w section 148 and 151 ofCPC seeking condonation of delay in filing the written statement. The

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delay was sought to be condoned mainly on the ground that the petitionerswere involved in construction of various sites and the documents pertainingto this case were not traceable and could only be traced after muchefforts. It was also averred that it took some time to requisition therelevant documents and on receipt thereof the same were sent to theircounsel for preparing WS and in the process, the filing of WS gotdelayed. It was averred that the same was not intentional or deliberate.The said application was dismissed vide the impugned order dated 6thJuly 2012 by the learned ADJ. The review against the said order was alsodismissed by the learned ADJ vide his order dated 30.03.2012. Thepetitioners assail both these orders in the present petition.

3. I have heard learned counsel for the petitioners and perused therecord.

4. The submissions which have been made in the present petitionare similar to what were made before the learned ADJ in support ofapplication seeking condonation of delay as also review petition. The sumand substance of the submission was that the documents relating to thecase in question could not be located for considerable time and afterthese were traced, they were given to their counsel who took some timeto prepare the WS.

5. The learned Counsel submitted that the delay in filing the WSwas not intentional and that the same may be condoned in the interestof justice as no prejudice was to be caused to the respondent.

6. After the amendment of Order 8 Rule 1 CPC, an obligation iscasted on the defendant to file WS within 30 days after service ofsummons on him. However, for the reasons to be recorded in writing thecourt may, in a given case, also extend the time up to 90 days for filingwritten statement. There is no doubt that the provisions contained inOrder 8 Rule 1 CPC is directing and not substantive and that in anappropriate case, on the defendant showing good cause of not being ableto file the WS within the period of 90 days, the court can extend thetime. But it is trite that the time could only be extended in exceptionalhard cases. It was apparent from the legislative intention which has fixedthe upper time limit as 90 days. Thus, the discretion could be exercisedby the Court to extend the time not in routine and on the mere asking

of the defendant. It is more so when the period of 90 days standsexpired. As per Salem Advocate Bar Association, Tamil Nadu Vs.UOI AIR 2005 SC 3353, the discretion of the court to extend the timecould not be exercised frequently and routinely so as to nullify the periodfixed by Order 8 Rule 1 CPC.

7. Now having seen the intent of the law as above, it may be notedthat in the instant case the petitioners were served on 17th August, 2010.Their counsel appeared before the Court of ADJ on 6th October 2010.On 6th October 2010 the matter was adjourned for 01.12.2010 with thedirections to the petitioners to supply advance copy of the WS to theopposite party. On 01.12.2010, the proxy counsel appeared for thepetitioners, but, no WS was filed till then. It was only on the nextadjourned date i.e. 04.02.2011 that the application for condonation ofdelay in filing the WS was filed by the petitioners. The plea that wastaken that the documents were misplaced at some site and could betraced only after many efforts, is apparently vague and irresponsible.Similar is the plea that the documents were given to the counsel whotook some time to prepare the WS. In the backdrop of mandatory provisionof law regarding filing of WS, the pleas taken for seeking condonationare extremely vague and devoid of any merit. Not only that, it is nowhere stated as to which were the documents misplaced and from wherethese were traced and when, but the details of those documents has alsonot been stated. No information/ material/ documents/ ledger which werestated as not traceable, could be shown to be referred in the WS. Whenquestioned as to which were those documents and when these weremisplaced and from where these were traced and what was relevancy ofthose documents for the purpose of WS, the learned counsel appearingfor the petitioners could not respond. The irresponsibility and carelessnessof the petitioners is reflected from the fact that they were served on17.08.2010, whereas the meetings of their Board of Directors to contestthe case were held on 30.09.2010, 06.10.2010 and 22.10.2010. Thiswould demonstrate that even the decisions regarding contesting the casewere taken by the petitioners much after expiry of the stipulated periodof 30 days for filing of WS. It is experienced that these are routine typeof pleas which are taken for delayed filing of the WS. Such unscrupulouspleas are nothing, but due to irresponsible, careless and casual approach

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of the defendants in filing the Written Statements. It was because of thistactical approach of the defendants that the provisions were amended bythe Parliament. The courts shall not exercise discretion in extending thetime on such kind of pleas to scuttle the legislative intent and object ofthe provisions contained in Order 8 Rule 1 CPC. Such could not be inthe category of cases where the court may exercise discretion to extendtime in the ends of justice.

8. I do not see any illegality or perversity in the discretion exercisedby the learned ADJ. There is no ground made out to interfere with theimpugned order. The petition has no merit and is hereby dismissed inlimini.

ILR (2012) 6 DELHI 81CRL.

D.V. CHUG ….PETITIONER

VERSUS

STATE & ANR. ….RESPONDENTS

(SURESH KAIT, J.)

CRL. M.C. NO. : 1474/2007 & DATE OF DECISION: 02.07.2012CRL. M.A. : 5115-16/2007

Delhi Municipal Corporation Act, 1957—Section 347,461—Complaint filed by MCD u/s 347/461 of the Actagainst petitioner alleging change of user of propertyfrom residential to commercial by running Clinic ofDoctor; whereas MCD had sanctioned permissible useof property as residential—Petitioner filing of complainturging that running of Clinic by Doctor does not fall incommercial activity—Held:—The professional

establishment of a doctor cannot come within thedefinition of commercial activity. Commerce is thatactivity where a capital is put into; work and risk runof profit or loss. If the activities are undertaken forproduction or distribution of goods or for renderingmaterial services, then it comes under the definitionof commerce.

On considering the submissions of ld. counsel appearing forthe parties, I am of the considered view that the professionalestablishment of a doctor cannot come within the definitionof commercial activity. Commerce is that activity where acapital is put into; work and risk run of profit or loss. If theactivities are undertaken for production or distribution ofgoods or for rendering material services, then it comesunder the definition of commerce. The word ‘profession’used to be confined to the three learned professions; theChurch, Medicine and Law. There is a fundamental distinctionbetween the professional activities and commercial activities.

(Para 11)

Important Issue Involved: The professional establishmentof a doctor cannot come within the definition of commercialactivity. Commerce is that activity where a capital is putinto; work and risk run of profit or loss. If the activities areundertaken for production or distribution of goods or forrendering material services. Then it comes under the definitionof commerce.

[Sh Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. Rajat Aneja & Mr. VaibhavJairaj, Advocates.

FOR THE RESPONDENT : Mr. Kapil Dutta & Mr. Ajay Verma,Advocates for respondent MCD.

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CASES REFERRED TO:

1. Dr. Devendra M. Surti vs. The State of Gujarat : AIR1969 SC 63.

2. Parivar Seva Sansthan & Ors. vs. The StateCrl.M.C.Nos.1459-64/2006.

RESULT: Petition allowed.

SURESH KAIT, J.

Crl. M.A. No. 5116/2007(exemption)

Allowed, subject to all just exceptions. Application stands disposedof.

CRL.M.C.No.1474/2007 & Crl.M.A.5115/2007

1. The instant petition is being filed while challenging the complaintfiled by the MCD under Section 347/461 of the Delhi Municipal CorporationAct, 1957 (hereinafter referred as “the said Act’’) against the petitioner.

2. Mr. Rajat Aneja, learned counsel for petitioner submitted thatallegations in the complaint against the petitioner are as under:-

That according to the Prosecution Report of Sh.Hasruddin Khan,Jr. Engineer (Bldg), West Zone, dated 09.09.2004, the accusedDr. D.V. Chug, Owner/Occupier of the property No. H.14, RajouriGarden, New Delhi, was found committing the following offenceon 09.09.2004 at 11:00AM under Section 347 of the DelhiMunicipal Corporation Act, 1957 (hereinafter called the Act),which is punishable under Section 461 of the DMC Act.

That Dr. D.V.Chug, Owner/Occupier of the Property No.H.14,Rajouri Garden, New Delhi, has changed the use of the propertyfrom residential to commercial by running clinic of Dr. D. V.Chug, without written permission of the Commissioner, MCD.The sanctioned/ permissible use of this property is residentialonly.

3. Learned counsel has drawn the attention of this Court to thenotice issued by the respondent No.2, which is at page No.23 wherein

it is stated that the petitioner committed the offence under Section 347DMC Act by changing the use of property from residential to commercialby running a clinic of doctor; whereas the MCD sanctioned the permissibleuse of this property as residential.

4. Undisputedly, the petitioner is a doctor, who was running hisclinic from his own residence. Allegations in the complaint against himare that he was using his residential premises for the commercial activity.

5. The issue arise in the instant petition, whether, running of clinicfrom the residential premises, would come in commercial activity.

6. Learned counsel submitted that the petitioner is now 80 years ofage as on date and the said clinic was closed down ten years back.Therefore, no purpose would be served by allowing the proceedingsagainst the petitioner.

7. Learned counsel has relied upon Dr.Devendra M. Surti v. TheState of Gujarat : AIR 1969 SC 63 wherein the Apex Court has observedas under:-

“6. Under s. 2(8) of the Act an ‘establishment’ is defined asmeaning ‘a shop, commercial establishment, residential hotel,restaurant, eating house, theatre, or other place of publicamusement or entertainment to which this Act applies’. Section2(24) again defines a “Residential hotel”, s. 2(25) a “Restaurantor eating house” and s. 2(27) similarly defines a “Shop”. Section2(29) defines a “Theatre”. It is clear therefore that the legislaturehas taken care separately to define each one of the categories of‘the establishments mentioned in s. 2(8) of the Act. It is, truethat s. 2(4) of the Act has used words of very wide import andgrammatically it may include even a consulting room where adoctor examines his patients with the help of a solitary nurse orattendant. But, in our opinion, in the matter of construing thelanguage of s. 2(4) of the Act we must adopt the principle ofnoscitur a sociis. This rule, means that, when two or morewords which are susceptible of analogous meaning are coupledto-ether they are understood to be used in their cognate sense.The words take as it were their colour from each other, that is,

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the more general is restricted to a, sense analogous to, a lessgeneral. “Associated words take their meaning from one anotherunder the doctrine of noscitur a sociis, the philosophy of whichis that the meaning of a doubtful word may be ascertained byreference to the meaning of words associated with it; suchdoctrine is broiderthan the maximum Ejusdein Generis.” (Wordsand Phrases. Vol. XIV, p. 207). For instance, in Reed v.Ingham(1) it was upon the principle of the maxim nosscitur asociis, that a steam tug of eighty-seven tons burden engaged inmoving another vessel was not a craft within the meaning of thestatute. Again, in Scales v. Pickering(-) the question was whatwas the meaning of the word “footway” when used in a privateAct which empowered a water company to break up the, soiland pavement of roads, highways, footways, commons, streets,lanes, alleys’, passages and public places, provided they did notenter upon any private lands without the consent of the owner.It was contend that this authorised the company to break up thesoil of a private field in which there was a public footway, butit was held otherwise. “Construing the word ‘footway,’ “ saidBest C. J. “from the company in which it is found the legislatureappears to have meant those paved footways in large townswhich are too narrow to admit of horses and carriages.” AndPark J. added : “The word ‘footway’ here noscitur a sociis.” Inthe present case, certain essential features or attributes areinvariably associated with the words “business and trade” asunderstood in the popular and conventional sense, and it is thecolour of these attributes which is taken by the other wordsused in the definition of s. 2(4') of the Act, though, their normalimport may be much wider. We are therefore of opinion that theprofessional establishment of a doctor cannot come within thedefinition of s. 2(4) of the Act unless the activity carried on wasalso commercial in character. As to what exactly is meant by“Commerce” it may be difficult to define but in an early case-McKav v. Rutherfurd(3), Lord Camp-bell gave a useful definition: “Commerce is that activity where a capital is laid out on anywork and a risk run of profit or loss; it is a commercial venture”.It is true that the definition of Lord Campbell is the conventional

definition attributed to trade or commerce but it cannot be takento be wholly valid for the purpose of construing industriallegislation in a modem welfare State. It is clear that the presenceof the profit motive or the investment of capital tradition associatedto the notion of trade and commerce cannot be given an undueimportance in construing the definition of ‘Commercialestablishment’ under s. 2(4) of the Act. In our opinion, thecorrect test of finding whether a professional activity falls withins. 2(4) of the Act is whether the activity is systematically andhabitually undertaken for production or distribution of goods orfor rendering material services to the community or any part ofthe community with the help of employees in the manner of atrade or business in such an undertaking. It is also necessary inthis connection to construe the word “profession” under s. 2(4)of the Act. In Commissioner’s of Inland Revenue v. Maxse(1),Scrutton L.J. stated as follows:-

“I am very reluctant finally to propound a comprehensivedefinition. A set of facts not present to the mind of the judicialpropounder, and not raised in the case before him, mayimmediately arise to confound his proposition. But it seems tome as at present advised that a ‘profession’ in the present useof language involves the idea of an Occupation requiring eitherpurely intellectual skill, or of manual skill controlled, as in paintingand sculpture, or surgery, by the intellectual skill of the, operator,as distinguished from an occupation which IS substantially theproduction or sale or arrangements for the production or sale ofcommodities. The line of demarcation may vary from time totime. The word ‘profession’ used to be confined to the threelearned professions, the Church, Medicine and Law. IL has now,I think, a wider meaning.”

The matter was again considered in another case where thequestion was whether a company doing the work of navalarchitect could be said to be carrying on a profession in a navalarchitecture. The case was William Esplen, Son, and Swainston,Ld. v. Inland Revenue Commissioner’s 1919-2 KB 731 whereRowlatt J. observed as follows:-”...... but :in my opinion the

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company is not carry in,— on the profession of naval architectswithin the meaning of the section, because for this purpose it isof the essence of a profession that the profits should be dependentmainly upon the personal qualifications of the person by whomit is carried on, and that can only be an individual.”

7. It is therefore clear that a professional activity must be an -activity carried on by an individual by his personal skill andintelligence. There is a fundamental distinction therefore betweena professional activity and an activity of a commercial characterand unless the profession carried on by the appellant also partakesof the character of a commercial nature, the appellant cannot fallwithin the ambit of S. 2 (4) of the Act. In The National Unionof Commercial Employees and another v. M. R. Meher, IndustrialTribunal, Bombay(1) it was held by this Court that the work ofsolicitors is not an industry within the meaning of s. 2(J) of theIndustrial Disputes Act, 1947 and therefore any dispute raised bythe employees of the solicitors against them cannot be made thesubject of reference to the Industrial Tribunal. In dealing withthis question, Gajendragadkar, J., speaking for the Court, observedas follows at page 163 of ,the Report:-

“When in the Hospital case ((1960) 2 S.C.R. 866) this Courtreferred to the Organisation of the undertaking involving the co-operation of capital and labour or the employer and his employees,it obviously meant the co-operation essential and necessary forthe purpose of rendering material service or for the purpose ofproduction. It would be realised that the concept of -industrypostulates partnership between capital and labour or between theemployer and his employees. It is under this partnership that theemployer contributes his capital and the employees their labourand the joint contribution of capital and labour leads directly tothe production which the industry has in view. In other words,the co-operation between capital and labour or between -theemployer and his employees which is treated as a working testin determining whether any activity amounts to an industry, isthe co- operation which is directly involved in the production ofgoods or in the rendering of service. It cannot be suggested that

every form or aspect of human activity in which capital andlabour cooperate or employer and employees assist each other isan industry. The distinguishing feature of an industry is that forthe production of goods or for the rendering of service,cooperation between capital and labour or between the employerand his employees must be direct and must be essential.”

Again, at page 166 of the Report Gajendragadkar, J. proceeds tostate

“Does a solicitor’s firm satisfy that test ? Sacrificially considered,the solicitor’s firm is no doubt organised as an industrial concernwould be organised. There are different categories of servantsemployed by a firm, each category being assigned separate dutiesand functions. But it must be remembered that the service renderedby a solicitor functioning either individually or working togetherwith partners is service which is essentially individual; it dependsupon the professional equipment, knowledge and efficiency ofthe solicitor concerned. Subsidiary work which is purely of anincidental type and which is intended to assist the solicitor indoing his job has no direct relation to the professional serviceultimately rendered by the solicitor. For his own convenience, asolicitor may employ a clerk because a clerk would type hisopinion; for his convenience, a solicitor may employ menialservant to keep his chamber clean and in order; and it is likelythat the number of clerks may be large if the concern is prosperousand so would be the number of menial servants. but the workdone either by the typist or the stenographer or by the menialservant or other employees in a solicitor’s firm is not directlyconcerned with the service which the solicitor renders to hisclient and cannot, therefore, be said to satisfy the test ofcooperation between the employer and the employees which isrelevant to the -purpose. There can be no doubt that for carryingon the work of a solicitor efficiently, accounts have to be keptand correspondence carried on and this work would need theemployment of clerks and accountants. But has the work of theclerk who types correspondence or that of the accountant whokeeps account,; any direct or essential nexus or connection with

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the advice which it is the duty of the solicitor to give to hisclient? The answer to this question must, in our opinion, be inthe negative. There is, no doubt, a kind of cooperation betweenthe solicitor and his employees, but that cooperation has, nodirect or immediate relation to the professional service which thesolicitor renders to his client.

........ Looking at this question in a broad and general way, it isnot easy to conceive that a liberal Profession like that of anattorney could have been intended by the Legislature to fall withinthe definition of ‘industry’ under s. 2 (J). The very concept ofthe liberal professions has its own special and distinctive featureswhich do not readily permit the inclusion of the liberal professionsinto the four corners of industrial law. The essential basis of anindustrial dispute is that it is a dispute arising between capital andlabour in enterprises where capital and labour combine to producecommodities or to render service. This essential basis would beabsent in the case of liberal professions. A person following aliberal profession does not carry on his profession in any intelligiblesense with the active cooperation of his employees and theprincipal, if not the sole, capital which he brings into his professionis his special or peculiar intellectual and educational equipment.That is why on broad and general considerations which cannotbe ignored, a liberal profession like that of an attorney must, wethink, be deemed to be outside the definition of ‘Industry’ undersection2(1).”

Applying a similar line of reasoning we are of opinion that thedispensary of the appellant would fall within the definition of S.2(4) of the Act if the activity of the appellant is organised in themanner in which a trade or business is generally organised orarranged and if the activity is systematically or habituallyundertaken for rendering material services to the community atlarge or a part of such community with the help of the employeesand if such an activity generally involves co-operation of theemployer and the employees. To put it differently, the manner inwhich the activity in question is organised or arranged, thecondition of the co-operation between the employer and the

employees being necessary for its success and its object beingto render material service to the community can be regarded assome of the features which render the carrying on of aprofessional activity to fall within the ambit of S. 2(4) of theAct. Tested in the light of these principles, we hold that the caseof the appellant does not fall within the purview of the Act andthe conviction of the appellant of the offence under S. 52(e) ofthe Act read with S. 62 of the Act and r. 23(1) of the Rules isillegal.”

8. He also relied upon a decision rendered by Coordinate Bench ofthis Court in Crl.M.C.Nos.1459-64/2006 titled Parivar Seva Sansthan& Ors v. The State wherein vide order dated 20.10.2009 it has beenobserved as under:-

“9. Coming to the second submission of the counsel for thepetitioner that with the enforcement of the Notification dated7.5.1999, the petitioner society could run the activity of nursinghome in the residential premises and therefore, there was noviolation of Section 14 of the DDA Act which could be complainedof by the respondent. For better appreciation of this contention,Section 14 and Section 29 of the DDA Act are reproduced asunder:-

“14. User of land and buildings in contravention of plans:-Afterthe coming into operation of any of the plans in a zone no personshall use or permit to be used and land or building in that zoneotherwise than in conformity with such plan.

Provided that it shall be lawful to continue to use upon suchterms and conditions as may be prescribed by regulations madein this behalf any land or building for the purpose and to theextent for and to which it is being used upon the date on whichsuch plan comes into force.

‘29.Penalties (1) Any person who whether any his own instanceor at the instance of any other person or anybody (including adepartment of Government) undertakes or carries out developmentof any land in contravention of the master plan or zonal

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development plan or without the permission, approval or sanctionreferred to in section 12 or in contravention of any conditionsubject to which such permission, approval or sanction has beengranted, shall be punishable- (a) with rigorous imprisonment whichmay extend to three years, if such development relates to utilizing,selling or otherwise dealing with any land with a view to thesetting up of a colony without a lay out plan; and

(b) with simple imprisonment which may extend to six months,or with fine which may extend to five thousand rupees, or withboth, in any case, other than those referred to in clause (a).

(2) Any person who uses any land or building in contraventionof the provisions of section 14 or in contravention of any termsand conditions prescribed by regulations under the proviso tothat section shall be punishable with fine which may extend tofive thousand rupees and in the case of a continuing offence,with further fine which may extend to two hundred and fiftyrupees for very day during which such offence continues afterconviction for the first commission of the offence.

(3) Any person who obstructs the entry of a person authorizedunder section 28 to enter into or upon any land or building ormolests such person after such entry shall be punishable withimprisonment for a term which may extend to six months, orwith fine which may extend to one thousand rupees, or withboth.”

11. With the said notification in place the respondent DDA couldnot have filed a complaint complaining non-conforming use ofresidential premises being put to use for running a nursing home/guest house and banks unless running of such activity was notfound to be in conformity with the other conditions concerningthe width of the road and the size of the plot etc. A bare perusalof the entire complaint would show that nowhere in the complaint,the respondent DDA has specifically disclosed as to what wasthe size of the plot in which the nursing home was being run bythe accused society and what was the width of the road facingthe plot wherefrom the nursing home was being run and in the

absence of the same the complaint filed by the respondent DDAlacked the basic facts and material which could have disclosedcommission of an offence on the part of the petitionerscontravening Section 14 of the DDA Act read with saidNotification.

It is not in dispute that inspection of the premises of thesociety was carried out by the field staff of the DDA after theenforcement of the said notification and therefore, the field staffin their inspection report ought to have disclosed the width ofthe road and the exact size of the plot wherefrom the accusedsociety was running the nursing home and since no suchparticulars have been disclosed in the inspection report or in thecomplaint, therefore, the complainant respondent prima facie failedto disclose any violation on the part of the petitioners underSection 14 of the DDA Act.”

9. On the other hand, ld. counsel for MCD has fairly conceded thatas on today running of a doctor’s clinic from the residential premises ispermissible and is not an offence. However, at the time of filing thecomplaint against the petitioner, it was not permissible.

10. He further submitted, be that as it may, the petitioner has closeddown its clinic, that satisfy the complaint.

11. On considering the submissions of ld. counsel appearing for theparties, I am of the considered view that the professional establishmentof a doctor cannot come within the definition of commercial activity.Commerce is that activity where a capital is put into; work and risk runof profit or loss. If the activities are undertaken for production ordistribution of goods or for rendering material services, then it comesunder the definition of commerce. The word ‘profession’ used to beconfined to the three learned professions; the Church, Medicine andLaw. There is a fundamental distinction between the professional activitiesand commercial activities.

12. Moreso, in the case Parivar Sewa Sansthan (supra) has heldthat running of ‘Nursing Home’ in residential premises does not comeunder the commercial activity.

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13. More so, the petitioner has already suffered about 8 years ashe has been facing trial since then.

14. Therefore, in view of the reasons recorded above, instant petitionis allowed.

15. Consequently, the proceedings pending against the petitionerbefore learned Trial Court are hereby set aside.

16. Bail bonds are cancelled. Surety stands discharged.

17. Crl.M.A.No.5115/2007 does not require further adjudicationand stand disposed of accordingly.

18. Dasti.

ILR (2012) 6 DELHI 93IA

K.V. KOHLI THROUGH LRS. ….PETITIONERS

VERSUS

STATE ….RESPONDENT

(VALMIKI J. MEHT A, J.)

IA NO. : 4665/2012 IN DATE OF DECISION: 05.07.2012TEST CASE. : 20/1997

Code of Civil Procedure, 1908—Order XIV Rule 2 (2)(b)—Respondent No. 2/objector sought directions thatIssue No. 2 as to whether the legal representatives oflate Sh. K.V. Kohli had no right to prosecute thispetition, be decided as preliminary issue—On the daywhen issues were framed, no request was made totreat Issue No. 2 as preliminary issue—Held, what fallsOrder 14 Rule 2 (2) (b) CPC are those bars by which

the court is prevented/barred to decide the merits ofthe matter and where the issue requires evidence, itcannot be treated as a legal issue and therefore,cannot be treated as preliminary issue—in view offactual matrix of the case, Issue No. 2 need not betreated as preliminary issue in so far as it does not fallwithin the intendment of "bar of suit created by law"used in the provision.

Order 14 Rule 2 CPC was amended by Act 104 of1976 by the legislature w.e.f. 1.2.1977. The provisionwas amended to ensure that there is no piecemealtrial on different issues by taking them as preliminaryissues. Experience showed that there was aconsiderable delay in disposal of many suits merelybecause of an issue being tried as a preliminaryissue, thereafter challenge being laid to various higherCourts and again the suit coming back for a freshdecision to the original Court after many many years.The legislative intention therefore, and which is clearfrom every part of Order 14 Rule 2 (2) CPC, is thatexcept in very limited cases under Order 14(2)(2), allissues shall be tried together and the Court shallpronounce judgment on all issues including apreliminary issue. In fact, even if the issue falls underOrder 14(2)(2), yet, this provision uses the expression‘may’ (not once but twice) and not ‘shall’ thus indicatingthat the Court in spite of the issue falling under Order14(2)(2), yet, in the facts of a case may refuse to trythat issue as a preliminary issue. Finally it be notedthat when Order 14(2)(2) CPC allows the Court totreat an issue of ‘bar to the suit created by any law’as a preliminary issue it has to be understood thatOrder 14(2)(2)(b) has substance similar to Order14(2)(2)(a) i.e. the bar to the suit created by law hasto be threshold bar similar to lack of jurisdiction of theCourt. Thus the legal bar contemplated under Order

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Act)

This is an application filed by the petitioners for leading evidenceof their private handwriting expert in terms of the order dated 6.8.2008.Ordinarily, there would have been no need for this application becausethe permission has already been granted vide order dated 6.8.2008, howeveractually the permission which is sought by means of the present applicationis that original Will dated 7.3.1986 (evening) which is lying in a sealedcover be allowed to be photographed by the handwriting expert so thata report with respect to the signatures of the testator can be prepared.Accordingly, this application is allowed and the handwriting expert of thepetitioners is allowed to take photographs of the documents filed in thisCourt by either of the parties, of course after giving due notice of thedate to the opposite side when the handwriting expert will appear fortaking photographs of the documents and the signatures thereon. If anyof the documents are lying in a sealed cover the same will be openedbefore the concerned Assistant Registrar and who will reseal the envelopeafter the needful is done.

I.A. stands disposed of.

I.A.No.4665/2012 (U/s 151 CPC)

1. This is an application filed by the respondent no.2/objector underSection 151 CPC seeking directions that issue no.2 framed on 30.8.2011be decided as a preliminary issue. The order dated 30.8.2011 reads asunder:-

“ O R D E R

30.8.2011

I.A Nos. 12170/2011 (filed by learned counsel for thepetitioners1(a) to (c) seeking discharge in this case)

The application is sought to be withdrawn since the petitionerhas now contacted the counsel and given instructions to her.The application is accordingly dismissed as withdrawn.

TEST.CAS. 20/199

The following issues are framed to decide this petition:-

14(2)(2)(b) is a threshold bar. Putting it differently topray for dismissal of a suit because of certain legalprovision has two aspects. One aspect is that theCourt has jurisdiction and then because it hasjurisdiction it decides the case on merits by applyingsome legal provisions to decide the suit. This aspectcannot fall under Order 14(2)(2)(b). What falls underOrder 14(2)(2)(b) are those bars by which the Courtis prevented/barred to decide the merits of the matter.Further, it is no longer res integra that an issue onwhich the evidence is required cannot be said to bea legal issue and therefore cannot be a preliminaryissue vide Ramesh B.Desai & Others Vs. BipinVadilal Mehta & Others (2006) 5 SCC 638.

(Para 5)

Important Issue Involved: What falls Order 14 Rule 2 (2)(b) CPC are those bars by which the court is prevented/barred to decide the merits of the matter.

[Gi Ka]

APPEARANCES:

FOR THE PETITIONERS : Mr. Harish Malhotra, Senior Advwith Mr. Lovkesh Sawhney, Adv.

FOR THE RESPONDENTS : Mr. Mahendera Rana, Adv.

CASES REFERRED TO:

1. Ramrameshwari Devi and Others vs. Nirmala Deviand Others, (2011) 8 SCC 249.

2. Ramesh B.Desai & Others vs. Bipin Vadilal Mehta &Others (2006) 5 SCC 638.

RESULT: Application dismissed.

VALMIKI J. MEHTA, J. (ORAL)

I.A.No. 16670/2011 (Under Sections 45 and 73 of Indian Evidence

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1. Whether Dr Kohli validly executed the Will in the evening of07th March, 1986?OPP

2. Whether the legal representatives of late Shri K.V.Kohli haveno right to prosecute this petition? OPO

3. Relief. No other issue arises or is claimed. Affidavit by wayof evidence be filed within six weeks. The parties to appearbefore the Joint Registrar for fixing a date for cross-examinationof witnesses of the petitioner on 02nd November, 2011.”

2. A reading of this order shows that when issues were framed on30.8.2011, no request was made to treat issue no.2 as a preliminaryissue.

3. Before I come to the facts of this case, the legal position willhave to be examined with regard to issues; a preliminary issue, apreliminary issue which is an issue affecting jurisdiction of the Court oris a legal issue containing bar to the suit created by law; and finally asto whether it is compulsorily mandated that the Court must necessarilyfirst decide the preliminary issue merely because it falls in sub rule (2)of Order 14(2) CPC.

4. Order 14 Rule 2 CPC reads as under:-

“2.Court to pronounce judgment on all issues.-(1)Notwithstanding that a case may be disposed of on a preliminaryissues, the Court shall, subject to the provisions of sub-rule(2),pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit,and the Court is of opinion that the case or any part thereof maybe disposed of on an issue of law only, it may try that issue firstif that issue relates to

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being inforce, and for that purpose may, if it thinks fit, postpone thesettlement of the other issues until after that issue has beendetermined, and may deal with the suit in accordance with thedecision on that issue.”

5. Order 14 Rule 2 CPC was amended by Act 104 of 1976 by thelegislature w.e.f. 1.2.1977. The provision was amended to ensure thatthere is no piecemeal trial on different issues by taking them as preliminaryissues. Experience showed that there was a considerable delay in disposalof many suits merely because of an issue being tried as a preliminaryissue, thereafter challenge being laid to various higher Courts and againthe suit coming back for a fresh decision to the original Court after manymany years. The legislative intention therefore, and which is clear fromevery part of Order 14 Rule 2 (2) CPC, is that except in very limitedcases under Order 14(2)(2), all issues shall be tried together and theCourt shall pronounce judgment on all issues including a preliminaryissue. In fact, even if the issue falls under Order 14(2)(2), yet, thisprovision uses the expression ‘may’ (not once but twice) and not ‘shall’thus indicating that the Court in spite of the issue falling under Order14(2)(2), yet, in the facts of a case may refuse to try that issue as apreliminary issue. Finally it be noted that when Order 14(2)(2) CPCallows the Court to treat an issue of ‘bar to the suit created by any law’as a preliminary issue it has to be understood that Order 14(2)(2)(b) hassubstance similar to Order 14(2)(2)(a) i.e the bar to the suit created bylaw has to be threshold bar similar to lack of jurisdiction of the Court.Thus the legal bar contemplated under Order 14(2)(2)(b) is a thresholdbar. Putting it differently to pray for dismissal of a suit because of certainlegal provision has two aspects. One aspect is that the Court has jurisdictionand then because it has jurisdiction it decides the case on merits byapplying some legal provisions to decide the suit. This aspect cannot fallunder Order 14(2)(2)(b). What falls under Order 14(2)(2)(b) are thosebars by which the Court is prevented/barred to decide the merits of thematter. Further, it is no longer res integra that an issue on which theevidence is required cannot be said to be a legal issue and thereforecannot be a preliminary issue vide Ramesh B.Desai & Others Vs.Bipin Vadilal Mehta & Others (2006) 5 SCC 638.

6. Before proceeding further, I must also note a brief history of thiscase which may have some bearing on the decision of the presentapplication. This petition was dismissed in default on 13.5.1992. Actually,the original petitioner had expired much before 13.5.1992. The petitionhad thus actually abated, however, it was dismissed in default. The legal

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heirs of the original petitioner Mr. K.V.Kohli thereafter filed applicationfor their substitution alongwith restoration application. Vide order dated4.12.2000, the application for restoration was allowed subject to paymentof Rs. 25,000/- as costs inasmuch as, the respondent no.2/objector didnot oppose the restoration application. Thereafter, the objector filed anapplication under Order 7 Rule 11 CPC being I. A. No. 10816/2007which was dismissed by a learned Single Judge (Sanjay Kishan Kaul, J.)on 21.9.2007 with costs of Rs. 7500/-. The Court noticed the lack ofgood faith on the part of the respondent no.2/objector in moving repeatedapplications. This order dated 21.9.2007 was carried in appeal by therespondent no.2 and which appeal being FAO(OS) 462/2007 was disposedof vide order dated 20.11.2007. The Division Bench noticed that apreliminary issue was already framed in this case vide order dated 2.8.2001with respect to the validity of power of attorney executed by the legalheirs of Sh. K.V.Kohli in favour of their maternal uncle Sh. Vinod Nair,and thus it was observed by the Division Bench that the aspect ofdisentitlement of the legal heirs of the erstwhile petitioner Mr. K.V.Kohlito continue the petition (i.e. maintainability of the petition) will also beexamined as a preliminary issue as there was already a preliminary issueof the validity of the power of attorney. Of course the validity of framingof that preliminary issue on 2.8.2001 is not before me however, I mustnote that if any of the counsel would have pointed out the differentaspects and sub-rules of the provision of Order 14 Rule 2 CPC to theCourt at the relevant stages, issues with regard to the validity of thepower of attorney or maintainability of petition by LRs of Mr. K.V.Kohliwould not have been directed to be decided as preliminary issues. I neednot say anything further on this aspect in view of what I am holdinghereinafter. However, I note that the Division Bench by its order of20.11.2007 observed that the issue with respect to the competence oflegal heirs of Mr. K.V.Kohli to prosecute the petition will be treated anddecided as a preliminary issue alongwith the decision of the preliminaryissue framed on 2.8.2001 with respect to the validity of the power ofattorney in favour of Sh. Vinod Nair, and therefore, the issue withrespect to the incompetence of the legal heirs of Sh. K.V.Kohli to pursuethe petition was to be treated as incidental to the preliminary issue framedon 2.8.2001.

7. The suit thereafter came up before different learned Single Judgesof this Court on different occasions and the petitioners also applied foramendment of the probate petition which was allowed vide order dated4.9.2009. Though there were some disputes with respect to the delay infiling of the amended petition, ultimately, the amended petition was takenon record and Division Bench on 31.5.2010 dismissed the challenge tothe order dated 4.9.2009 of the learned Single Judge allowing amendment.

8. A Learned Single Judge of this Court (V.K.Jain, J) on 16.11.2010,without reference to the provision of Order 14 Rule 2 CPC noticed thedifficulty in treating an issue as preliminary issue when trial/evidence wasrequired, however, in view of the orders of the Division Bench directedthat the evidence be led with respect to preliminary issue framed on2.8.2001.

9. After many dates before the Joint Registrar, the respondent no.2obviously seems to have second thought on getting the preliminary issuequa the validity of the power of attorney in favour of Mr. Vinod Nairdecided/treated as a preliminary issue, and therefore gave up this objectionin its entirety, and which is recorded by the Registrar in his order dated24.1.2011.

10. The case was thereafter listed for framing of issues, and issueswere framed on 30.8.2011 as stated above. At the cost of repetition itmay be observed that on 30.8.2011, there was no request made fortreating the issue of the legal heirs of Mr. K.V.Kohli not being entitled topursue the petition on account of certain provisions of Indian SuccessionAct, 1925 as a preliminary issue. The matter was fixed vide order dated30.8.2011 before the Joint Registrar for fixing a date for cross examinationof the petitioner. It is thereafter much later on 6.2.2011 that the presentapplication has been moved to treat the issue no.2 as a preliminary issue.

11. Learned counsel for the respondent no.2 very vociferouslyargued that the order of the Division Bench of this Court dated 20.11.2007mandates that this Court should try the issue with regard to the competenceof legal heirs of Mr. K.V.Kohli to pursue the probate petition as apreliminary issue, and wanted to argue by reference to different provisionsof Indian Succession Act and also certain judgments that the legal heirsof Sh. K.V.Kohli do not have a right to pursue the present petition as a

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probate case as a probate can only be granted in favour of an executornamed in the Will. On behalf of the L.Rs of Mr. K.V.Kohli it wascountered that at best on the death of Mr. K.V.Kohli/executor instead ofprobate being granted, what will be granted will be a letter of administrationwith the Will annexed, and this has more to do with form/heading andnot with substance of the case which remains one hundred percent thesame.

12. In fact, I have not permitted the counsel for respondent no.2to show me the provisions of the Indian Succession Act, 1925 which hewanted to rely upon and the judgments, because, in my opinion I wouldbe required to deal with such arguments only if I am required to treatthe issue no.2 as a preliminary issue or I exercise my discretion to treatthe issue no.2 as a preliminary issue. If I do not have to decide the issueno.2 as preliminary issue or I exercise my discretion against treating thisissue no.2 as a preliminary issue, then, arguments on merits of this issuewill be considered at the stage of final arguments after evidence of boththe parties is completed in this case. In my opinion, the order of theDivision Bench dated 20.11.2007 would not bind this Court to treat theissue no.2 as a preliminary issue for the reasons given hereinafter.

13. Firstly, the respondent no.2, and in whose presence the issueswere framed on 30.8.2011, could have insisted in view of the order ofthe Division Bench dated 20.11.2007 to treat issue no.2 as a preliminaryissue, but obviously she did not seek to do the same. Thus, when theissues were framed on 30.8.2011, it was a conscious act not to seekdecision on the issue no.2 as a preliminary issue inasmuch as not onlythere is no such prayer which is recorded in the order dated 30.8.2011,but also, it is even not the case of the respondent no.2 that though sucha prayer was made but not recorded on 30.8.2011 when the issues wereframed. Secondly, for not taking issue No.2 as a preliminary issue, theremay be some bearing on this aspect of the order dated 24.1.2011 whenthe respondent no.2 gave up his rights to treat the issue of validity of thepower of attorney in favour of Mr. Vinod Nair as a preliminary issue andthus this also could be one reason why respondent no.2 did not press forgetting the issue treated as a preliminary issue. (Though, of course in theorder dated 24.1.2011, the presence is wrongly recorded of Sh. MahenderRana, Advocate for the respondent no.1 it is not disputed before me that

actually Mr. Mahender Rana has always appeared and in fact appearedon 24.1.2011 only for respondent no.2.) Thirdly it is possible that therespondent no.2 could have been advised of the correct legal position quathe subject of preliminary issues under Order 14(2) and thus did notpress for treating the issue No.2 as a preliminary issue because the samewould have resulted in evidence being led in tranches.

14. Keeping all the aforesaid facts in mind, including that even theDivision Bench when it passed the order dated 20.11.2007 may not havepassed the order treating the issue of competence of legal heirs of Sh.K.V.Kohli to pursue the probate petition as a preliminary issue, if Order14 Rule 2 CPC was brought to its notice. I hold that issue no.2 need notbe treated as a preliminary issue. This issue does not fall within theexpression and intendment of ‘bar of suit created by law’ as stated inOrder 14(2)(2)(b) though it has so been sought to be argued on behalfof respondent No.2. Assuming issue No.2 can be said to be a preliminaryissue, I refuse to exercise discretion to treat this issue as a preliminaryissue and which is vested in me as per the intention of the legislature inamending Order 14(2) by Act of 104 of 1976. A lot of water has flownunder the bridge since the order of the Division Bench dated 20.11.2007inasmuch as the issue of validity of power of attorney has not to betreated as a preliminary issue as per the statement of the counsel for therespondent no.2 and also that there was no request on 30.8.2011 to treatthe issue no.2 as a preliminary issue I have therefore at this stage to lookinto the matter only from the point of view of the present applicationfalling within the applicable ingredients of Order 14 Rule 2 CPC. Thoughthe application is titled under Section 151 CPC, really, the same is underOrder 14(2) CPC.

15. Before I conclude, I must state that I put it to counsel for therespondent no.2, and which suggestion was agreeable to the counsel forthe petitioners, that let the evidence be recorded by a Local Commissionerso that the same is completed within a few months, and I would givethe power to Local Commissioner to impose heavy costs on the partiesseeking unnecessary adjournments, and thereafter the case would bedisposed of by this Court to the extent possible within the next six oddmonths, however, the counsel for the respondent no.2, in spite of theassistance being sought on this matter for expeditious disposal of the

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petition, refused to agree and insisted that I dispose of the presentapplication and direct that issue no.2 be treated as preliminary issue.

16. In view of the aforesaid discussion and more particularly, asregards the mandate of Order 14 Rule 2 CPC, as also the fact that evena preliminary issue falling under Order 14 Rule 2 (2) CPC may not betreated as preliminary issue as per discretion of the Court, and consideringthe facts of the case, I am of the firm belief that all the issues shouldbe heard and disposed of together and there should not be unnecessarilya piecemeal trial. I note that already this case has the trait of delays beingcaused on account of various applications being filed by one or the otherparties and thereafter the orders being challenged before the DivisionBench, and during which period obviously the disposal of the mainpetition had to remain in limbo–a position which is an anathema to thelegislative intentions.

17. The application is accordingly dismissed, and in view of theaforesaid conduct of the respondent no.2, with actual costs being thelawyers fees for today’s hearing incurred by the petitioners, and whichdetails of costs should be filed by the petitioners on an affidavit withina period of one week from today, of the costs having been paid to theirlawyers, and the costs thereafter shall be paid within a period of twoweeks thereafter. I am imposing actual costs in terms of RamrameshwariDevi and Others v. Nirmala Devi and Others, (2011) 8 SCC 249 andby invoking my discretion to exempt the applicability of the Rules of thisCourt under Rule 14 of the said Original Side Rules, 1967.

18. List before the Registrar for fixing the date for evidence on13th August, 2012.

ILR (2012) 6 DELHI 104R.C.

MOHD. JAFAR & ORS. ….PETITIONERS

VERSUS

NASRA BEGUM ….RESPONDENT

(M.L. MEHT A, J.)

R.C. (REV) : 279/2011 DATE OF DECISION: 09.07.2012C.M. NO. 7832/12

Delhi Rent Control Act, 1950—Section 14(1) (e)—Ineviction proceedings, petitioners tenant sought leaveto defend on the grounds that the requirement set upby landlord respondent to the effect that she neededthe tenanted shop to set up business of her son wasnot bona fide since respondent landlord is inpossession of first and second floor, where a husbandis running a hotel and son of respondent is alreadyengaged in business of his father—Applicationdismissed by ARC holding that there was no triableissue—challenged—Held, in view of contradiction inthe contents of para 4 (ii) & para 4 (vii) of the reply tothe application, there was definitely a triable issueregarding the alleged possession of the shops; assuch impugned order not sustainable.

Moreover, the present case is a case of requirement ofadditional accommodation by the respondent landlord asshop no. 782, Jama Masjid, is already in the possession ofthe husband of respondent from where he runs a spareparts shop. It is settled legal position that in such cases, theleave to defend must ordinarily be accorded to the tenant.In Santosh Devi Soni vs. Chand Kiran (supra), it hasbeen held that when it is a case of additional accommodation

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for the landlord, leave to defend should normally be notrefused to the tenant. (Para 8)

[Gi Ka]

APPEARANCES:

FOR THE PETITIONERS : Mr. Amit Gupta, Advocates.

FOR THE RESPONDENT : None.

CASES REFERRED TO :

1. Inderjeeet Kaur vs. Nirpal Singh (2001) 1 SCC 706.

2. Santosh Devi Soni vs. Chand Kiran 2000 AIR SCW 4916.

RESULT: Petition allowed.

M.L. MEHTA, J. (ORAL)

1. This civil revision petition has been filed under Section 25 (B)of Delhi Rent Control Act (here in after referred to as ‘Act’ ) read withSection 115 of Code of Civil Procedure assailing the order of ld. AdditionalRent Controller ( ARC) in Eviction Petition No. E- 463/2009, wherebythe application of the petitioner seeking leave to defend was dismissedand eviction order under Section 14(1)(e) of the Act was passed infavour of the respondent in respect of shop no. 780, Ward No. 6, KabariBazar, Delhi.

2. The eviction petition was filed by the respondent landlord on theground of bona fide requirements. It was on the averments that therespondent required the tenanted shop in question for her son Mohd.Akbar, who wanted to set up the business of selling of old motor partsand other accessories. The petitioner filed the application for leave todefend the eviction petition stating that the respondent is in possessionof first and second floor of the shops no.780, 781, 782,783 and 784Kabari Bazar, Jama Masjid and the husband of the respondent is runninga hotel in these shops which shows that the requirement as projected bythe petitioner is not bonafide. It was also stated by the petitioner that theson of the respondent is already engaged in the business of his father atshop no. 782, Motor Market, Jama Masjid and does not require thetenanted shop for starting a business. In the reply to the leave to defend

application the respondent denied the allegations made by the petitionerand contents of the eviction petition were reiterated. While dismissing theapplication for leave to defend, the ld. ARC expressed the view that thepetitioner was not able to raise any triable issue and the bonafiderequirement of the suit shop has been established by the respondentlandlord.

3. It has been averred by the learned counsel for the petitioner thatthe impugned order suffers from illegality as the ld. ARC has overlookedthe triable issues raised by the petitioner. It has been further contentedthat the ld. ARC ignored the material contradictions made by therespondent, regarding additional properties available with her, in the replyfiled to the application seeking leave to defend. Reliance has been placedby the petitioner on Santosh Devi Soni vs. Chand Kiran 2000 AIRSCW 4916 to contend that incase of requirement of additionalaccommodation for the landlord leave to defend should normally not berefused to the tenant.

4. On the other hand, the learned counsel for the respondent hasurged that the order of the ld. ARC requires no interference which hasbeen passed after taking into consideration the bonafide requirement ofthe respondent for the shop in order to enable her son to start a businessof spare parts. It has been further submitted that no triable issues wereraised by the petitioner that would merit the grant of leave to defend theeviction petition to the petitioner.

5. I have heard the rival submissions and perused the file.

6. At the stage of granting leave to defend the real test should bewhether the facts disclosed in the affidavit filed seeking leave to defendprima facie show that the landlord would be disentitled from obtaining aneviction order and not whether at the end the defence may fail. If theapplication filed under Section 25-B discloses some substantial triableissues, then it would be grave injustice to brush them out rightly withouttesting the veracity of the claims made by the tenant/applicant.

7. In para 4 (ii) of the reply to the application for leave to defendfiled on the behalf of the respondent, it has been denied by the respondentthat there are six rooms on first and second floors of the shops bearing

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no.780, 781, 782,783 and 784 Kabari Bazar, Jama Masjid as alleged bythe petitioner. But in para 4(vii) of the reply, it has been admitted by therespondent that a hotel/guest house is being run by her husband on thefirst and second floors of the said shops. Such an apparent contradictionin the stand taken up by the respondent definitely raises an importanttriable issue regarding the alleged possession of the shops. It is pertinentfor the adjudication of the eviction petition that the factual positionregarding the said shops is revealed which can be done only with the helpof evidence. In my considered opinion, grave illegality was committed bythe ARC in overlooking this significant triable issue at the time of disposalof the application for leave to defend. Leave to defend must not begranted on mere asking, but it is equally improper to refuse to grant leavewhen triable issues are raised and the controversy can be properlyadjudicated after ascertainment of truth through cross-examination ofwitnesses who have filed their affidavits. In Inderjeeet Kaur vs. NirpalSingh (2001) 1 SCC 706 the Apex Court has held that

“13.We are of the considered view that at a stage when thetenant seeks leave to defend, it is enough if he prima facie makesout a case by disclosing such facts as would disentitle the landlordfrom obtaining an order of eviction.....”

8. Moreover, the present case is a case of requirement of additionalaccommodation by the respondent landlord as shop no. 782, Jama Masjid,is already in the possession of the husband of respondent from where heruns a spare parts shop. It is settled legal position that in such cases, theleave to defend must ordinarily be accorded to the tenant. In SantoshDevi Soni vs. Chand Kiran(supra), it has been held that when it is acase of additional accommodation for the landlord, leave to defend shouldnormally be not refused to the tenant.

9. In view of the foregoing discussion, it is evident that jurisdictionalerror has been committed by the ld. ARC, which calls for interference.The petitioner raised an important triable issue the veracity of whichcould not be tested at this stage of the lis, without calling for additionalevidence.

10. Consequently, the impugned order is set aside and leave todefend is granted to the petitioner. The parties are directed to appear

before the ARC on 17.08.2012. The written statement has to be filed bythe respondent before the ARC. The petition stands disposed off in theseterms.

ILR (2012) 6 DELHI 108IA

KULVINDER SINGH ….PLAINTIFF

VERSUS

HARVINDER PAL SINGH & ANR. ….DEFENDANTS

(HIMA KOHLI, J.)

I.A. NO. : 10747/2011 (BY THE DATE OF DECISION: 09.07.2012DEFENDANT NO. : 1 U/O 6 R17 CPC) IN CS OS NO. : 1619/2009

Code of Civil Procedure, 1908—Section 151—Order 7Rule 1 (A) & Order 6 Rule 17—Plaintiff filed suit forpartition—After completion of pleadings, defendantno. 1 moved two applications one seeking permissionto place some additional documents and other foramendment to written statement—As per defendantno. 1, Court ought to be liberal in granting prayer foramendment of pleadings unless serious injustice orirreparable loss is caused to other side—Applicationsstrongly opposed by plaintiff. Held—Amendment tothe written statement stands on a different footingfrom the amendment to the plaint. Though amendmentto pleadings cannot be permitted so as to materiallyalter the substantial cause of action in a plaint, thereis no such principle that can be applied to amendmentin the written statement. Therefore, it is permissible

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for the defendant to take inconsistent pleas, mutuallycontrary pleas or to substitute the original plea takenin the written statement.

It is a settled law that while considering an application filedby the defendant seeking amendment of the writtenstatement, the principles to be applied by the Court shouldbe much more liberal as compared to the principles relatingto amendment of a plaint. In other words, amendment to thewritten statement stands on a different footing from theamendment to the plaint. Though amendment to pleadingscannot be permitted so as to materially alter the substantialcause of action in a plaint, there is no such principle thatcan be applied to amendment in the written statement.Therefore, it is permissible for the defendant to takeinconsistent pleas, mutually contrary pleas or to substitutethe original plea taken in the written statement. (Para 9)

Important Issue Involved: Amendment to the writtenstatement stands on a different footing from the amendmentto the plaint. Though amendment to pleadings cannot bepermitted so as to materially alter the substantial cause ofaction in a plaint, there is no such principle that can beapplied to amendment in the written statement. Therefore,it is permissible for the defendant to take inconsistent pleas,mutually contrary pleas or to substitute the original pleataken in the written statement.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFF : Mr. Sanjeev Bhatnagar, Advocates

FOR THE DEFENDANTS : Mr. Vishal Singh, Advocate for thedefendant No. 1

CASES REFERRED TO:

1. Surender Kumar Sharma vs. Makhan Singh (2009) 10

SCC 626.

2. Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami& Ors. (2007) 5 SCC 602.

3. Arundhati Mishra vs. Sri Ram Charitra Pandey reportedas (1994) 2 SCC 29.

RESULT: Application allowed.

HIMA KOHLI, J. (Oral)

1. The present application has been filed by the defendant No.1 ina suit instituted by the plaintiff for passing a decree of partition in respectof the ground floor and half of the second floor of premises bearingNo.B7, 105, Safdarjung Enclave Extn., New Delhi, and for a decree ofpermanent injunction.

2. The aforesaid suit was registered on 01.09.2009 and summonseswere issued returnable on 27.11.2009. Appearance was entered on behalfof the defendants and written statement came to be filed on 18.11.2009,whereafter replication to the written statement of the defendant No.1 wasfiled by the plaintiff in February, 2010. After the pleadings were completed,the present application came to be filed by the defendant No.1 on11.07.2011. Alongwith the present application, the defendant No.1 hadfiled another application under Order VIII Rule 1(A) read with Section151 CPC, registered as I.A. No.10888/2011, whereunder he had soughtpermission to place some additional documents on record.

3. In the present application, the defendant No.1 has soughtamendment to the written statement by incorporating the brief facts priorto the preliminary objections taken in the written statement. The saidbrief facts run into 20 paras and have been set out in para 9.1 of theapplication. Apart from the aforesaid amendment, the defendant No.1also seeks to amend the averments made on merits in paras 2 and 5 ofthe written statement and the verification clause as set out in paras 9.2,9.3 and 9.4 (wrongly typed as para 9.3) of the application. It is averredin the application that the amendments sought to be incorporated are onlyto buttress the defence already taken by the defendant No.1 in the writtenstatement, which is to the effect that the subject property was acquiredby him through a gift deed executed by his father, Shri Gurdial Singh in

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his favour and duly registered with the Sub-Registrar, Delhi. It is statedby the counsel for the defendant No.1 that the amendments sought in thewritten statement are only to explain the manner in which late ShriGurdial Singh came to acquire the title in the subject premises and thatthe defendant No.1 does not propose to rescind from or alter the standtaken by him in the written statement.

4. Secondly, it is submitted by the counsel for the defendant No.1that the present application was accompanied by another application filedunder Order VIII Rule 1(A) read with Section 151 CPC, registered asI.A. No.10888/2011, whereunder the defendant No.1 had sought to placeon record certain additional documents on the ground that the same werein his custody in Canada and he had brought them to Delhi on 05.07.2011and then had sought leave to place them on record. Learned counselstates that the relief prayed for in the aforesaid application had not beenopposed by the plaintiff as is apparent from a perusal of the order dated14.07.2011 passed by the Joint Registrar and upon payment of costs ofRs. 3,000/-, the additional documents filed by the defendant No.1 weretaken on record, whereafter admission and denial of documents had alsobeen carried out. He contends that all the documents that have beenbrought on record only substantiate the submissions that have been madein the proposed amendments as mentioned in the present application forpurposes of completing the chain to establish the manner in which thetitle of the subject premises came in the hands of late Shri Gurdial Singh.

5. In support of his submission that the Court ought to be liberalin granting the prayer for amendment of pleadings unless serious injusticeor irreparable loss is caused to the other side or the prayer for amendmentwas not a bona fide one and further that the approach of the Court inallowing the amendment of the written statement ought to be a liberalapproach as compared to the approach towards the plaintiff to seekamendment in the plaint, learned counsel for the defendant No.1 reliesupon the following judgments:-

(i) Usha Balashaheb Swami & Ors. vs. Kiran AppasoSwami & Ors. (2007) 5 SCC 602

(ii) Surender Kumar Sharma vs. Makhan Singh (2009)10 SCC 626

6. Counsel for the defendant No.1 further states that although in thepresent case, the defendant No.1 has not taken a plea which is inconsistentwith the earlier plea taken by him in the written statement, it is settledlaw that while amending the written statement, raising of mutuallyinconsistent pleas by the defendant is permissible and such amendmentscan be permitted at any stage. To urge this ground, reliance is placed onthe judgment in the case of Arundhati Mishra vs. Sri Ram CharitraPandey reported as (1994) 2 SCC 29.

7. Per contra, the present application is opposed by the counsel forthe plaintiff, who submits that by seeking to amend the written statementas filed originally, the defendant No.1 is attempting to alter and changehis stand as taken in the written statement. He submits that the presentamendment application came to be filed by the defendant No.1 only afterthe plaintiff had filed an application under Section 340 Cr.PC, registeredas I.A. No.3053/2010, wherein the plaintiff had categorically stated thata collaboration agreement was entered into on behalf of the father of theparties, i.e., late Shri Gurdial Singh on one hand and Shri Hardial Singh,defendant No.2 on the other hand and on the basis thereof, the partieshad agreed to divide the subject premises in a particular manner and thatit was agreed that the premises was ancestral but formal mutation thereofhad been carried out in the name of Shri Gurdial Singh.

8. This Court has heard the counsels for the parties and consideredtheir respective stands.

9. It is a settled law that while considering an application filed bythe defendant seeking amendment of the written statement, the principlesto be applied by the Court should be much more liberal as compared tothe principles relating to amendment of a plaint. In other words, amendmentto the written statement stands on a different footing from the amendmentto the plaint. Though amendment to pleadings cannot be permitted so asto materially alter the substantial cause of action in a plaint, there is nosuch principle that can be applied to amendment in the written statement.Therefore, it is permissible for the defendant to take inconsistent pleas,mutually contrary pleas or to substitute the original plea taken in thewritten statement.

10. It is also relevant to note that the present application came to

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be filed by the defendant No.1 when admission and denial of documentshad yet to take place. Furthermore, the defendant No.1 had filed anotherapplication alongwith the present application, whereunder a number ofdocuments were sought to be placed on record. As the aforesaid requestwas not opposed by the plaintiff, the said application was allowed by theJoint Registrar vide order dated 14.07.2011. Thereafter, admission anddenial of the documents that were filed by the defendant No.1 was alsoconducted by the parties, while the present application remained pending.

11. A perusal of the proposed amendments sought to be incorporatedby the defendant No.1 in the original written statement shows that it isnot a case of withdrawal of any admissions made by him in the originalwritten statement or of altering the stand taken by him, which is to theeffect that the title of the subject premises had passed in his hands onthe basis of a registered gift deed executed by late Shri Gurdial Singh inhis favour. The defendant only seeks to bring on record a different setof facts that culminated in the title of the premises coming in the handsof late Shri Gurdial Singh.

12. Lastly, it is relevant to note that if the amendments sought tobe incorporated by the defendant No.1 are not permitted, then it is notlikely that the real controversy between the parties would be ultimatelyresolved, which is an additional reason for permitting the amendmentssought to be incorporated by the defendant No.1 in his written statement.Moreover, the application cannot be treated as a belated one as it wasfiled immediately after the pleadings were completed.

13. In view of the aforesaid facts and circumstances and havingregard to the fact that no prejudice shall be caused to the plaintiff if thedefendant is permitted to amend the written statement, it is deemedappropriate to allow the present application so as to do full and completejustice between the parties. However, the application is allowed subjectto payment of costs of Rs. 5,000/- to the plaintiff. The amended writtenstatement shall be filed within two weeks alongwith proof of payment ofcosts with advance copy to the counsel for the plaintiff, who may filethe replication within two weeks thereafter.

14. The application is disposed of.

ILR (2012) 6 DELHI 114CRL

BHAGWAN DASS & ORS. ….PETITIONERS

VERSUS

STATE ….RESPONDENT

(MUKT A GUPTA, J.)

CRL. REV. P. : 550/2009 & DATE OF DECISION: 17.7.2012CRL. M.A. : 11846/2009 (STAY)

Indian Penal Code, 1860—Section 288/304A/338/337/427—Petitioners charged for committing offencespunishable u/s 288/304A/338/337/427 of the Code—They challenged the order urging that they were simplymembers of Managing Committee which wanted templeto be constructed for welfare of general public—Managing Committee had taken services of threecontractors to raise construction and petitioners hadno role in the commission of offence, also no specificallegations were made against them—Held:—At thestage of charge the learned T rial Court is only requiredto look into the basic material/evidence before it andform an opinion that prima facie case is made outagainst the accused persons.

The negligence of using inferior quality cement andconstructing the lanter without any support is sufficientlyproved/stated by the labourer Shri Ram. Despite givingthem warning the Petitioners ignored the fact and askedthem to continue with the work. The aspect of determiningthe very nature of degree of the inferior quality material andthe extent of involvement of the Petitioners in the offencecommitted is a matter of fact which is to be looked intoduring the trial. (Para 8)

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Important Issue Involved: At the stage of charge thelearned Trial Court is only required to look into the basicmaterial/evidence before it and form an opinion that primafacie case is made out against the accused persons.

[Sh Ka]

APPEARANCES:

FOR THE PETITIONERS : Mr. Anuj Soni, Adv.

FOR THE RESPONDENT : Mr. Mukesh Gupta, APP with ASIRam Gopal PS Mukherjee Nagar.

CASE REFERRED TO:

1. Ataur Rehman vs. State, 2010 (1) JCC 214.

RESULT: Petition dismissed.

MUKTA GUPTA, J.

1. By the present petition the Petitioners seek setting aside of theorder dated 11th August, 2009 whereby the learned Metropolitan Magistratehas framed charges against the Petitioners for offences punishable underSections 288/304A/338/337/427 IPC.

2. Learned counsel for the Petitioners contends that the impugnedorder of framing charges against the Petitioners is bad in law as well ason facts. The Petitioners herein were simply the members of the ManagingCommittee who wanted the temple to be constructed for the welfare ofgeneral public. It is stated that the Managing Committee of Hari Mandirhad taken the services of Ram Naresh, Thekedar and had entered into anagreement with him to construct the temple in question. All the membersof the Managing Committee are laymen and were simply serving thetemple. It is further stated that the allegation against the Petitioners thatthey had malice in providing low grade material is not justified. There areno specific allegations against the Petitioners and no role has been attributedto any one of them. It is further stated that it was either for the contractor,architect or for the labour themselves to decide as to how the supportwas to be provided to the lanter. If at all the lanter and the roof of thetemple have come down, it cannot be due to the rash and negligent act

of the Managing Committee to which the Petitioners are members. Relianceis placed on Ataur Rehman vs. State, 2010 (1) JCC 214 to contendthat in the absence of any criminal intention of which there was nowhisper in the statement of the Complainant, it cannot be said that thedeath of the victim was by rash and negligent act of the Petitioners. Thusthe impugned order framing charges against the Petitioners is bad in lawand liable to be set aside.

3. Per contra learned APP for the State contends that there arespecific allegations against the present Petitioners and their role has beenclearly specified. Learned Trial Court after considering all the relevantaspects and material available before it, has correctly invoked the provisionsof IPC against them. There is a strong prima facie case against thePetitioners being the members of the Committee. There is no illegality inthe impugned order framing charges. The present petition has no meritand is labile to be dismissed.

4. I have heard learned counsel for the parties and perused therecord.

5. Briefly the prosecution case are that on 27th July, 1999 a lanteron the first floor of one Hari Mandir, Outram Line, Burari Road wasbeing laid. Accused Ram Naresh and Ragunath were contractors. Atabout 6.20 P.M. DD No. 5A was recorded at PS Mukherjee Nagar inregard to falling of the roof of Hari Mandir. The SHO reached at spotwhere SI Rajneesh Kumar, SI Praveen Kumar and ASI Tek Chand werepresent along with other police officials. The ambulance was called andthe injured labourers and other persons were sent to HR Hospital. Statementof Shri Ram, a labourer was recorded who stated that he used to livewith his family in Jhuggi No. 109, Indira Vikas Colony and used to workas a labourer. Contractor Ram Naresh and his partner Raghunathapproached him and at his instance he along with his friend Raj Bahadurwho used to live in neighbourhood came to Hari Mandir, Outram Line,Burari Road, where the First Floor of Hari Mandir was being constructedand lanter was to be constructed. For construction of the lanter fourmachines had been brought. On each machine 50-60 labours wereworking. He has stated that when they reached there in the morning forthe job, he and Raj Bahadur pointed out to contractor Ram Naresh and

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Raghunath that shuttering was weak and lanter should not be put becausethere was no support in the middle of the lanter and the roof can fall.But contractor said that shuttering was OK and that they should do theirjob and rest should be left on him. He has also stated that many labourersobjected to this but contractor did not agree and machines started andwork of lanter started. In the middle of the work he and Babu Lal pointedout towards the condition of the roof but nobody listened to them. Theywere told to continue the work. Other labourers met the President ShriJagjit Rai Malik and other executive members who were present there butthey all supported the contractor and said that the work should be continuedand finished quickly. At about 3.00 p.m. when he was working alongwith other labourers, the roof came down on many laboureres and peoplegot injuries. Somebody called the PCR and the labourers were removedto hospital. Raj Bahadur could not run and died on the spot. He learnt thislater in the hospital. It is stated that to construct the lanter of the templethe mixture which was being prepared was not properly mixed with thecement and the ratio of badarpur was more than the ratio of cement. Thelanter of the temple was constructed with inferior material by contractorRam Naresh, Raghunath, President of the Temple and other executivemembers who had given sub-standard material and played with the lifeof labourers. On the basis of this statement of Shri Ram FIR No. 178/1999 was registered under Section 304/427/337/288/34 IPC against thePetitioners.

6. Petitioner No. 1 Bhagwan Dass has expired during the pendencyof the petition. It is stated/admitted that the Petitioner No. 2, PetitionerNo. 3 are the members of the Managing Committee. Petitioner No. 4Jagjit Rai Malik is stated to be the President of the Temple and his nameis specifically mentioned in the statement of Shri Ram on the basis ofwhich FIR has been registered. It is stated that the president and theother executive members of the temple were informed and had knowledgeof the fact that the lanter was being constructed with inferior qualityproducts as there was no support in middle of the lanter the roof of themandir had collapsed.

7. Learned Metropolitan Magistrate after hearing the arguments ofthe parties on point of charge has charged the Petitioners under Sections288/304A/338/337/427 IPC. It is relevant to note that the negligence

under Section 304A has to be construed keeping in mind all the surroundingcircumstances. The act committed by the accused persons must begrossly and rashly negligent. The death/injury caused must be the directconsequence of the rash and negligent act committed by the accused. Inthe present case while shuttering the lanter of the mandir the labourershad clearly pointed out to the Petitioners as well as the contractor thatthe lanter was weak and the same should not be laid without any support.Ignoring the word of caution given by the labourers, the members ofmanagement and the president along with the thekedars instructed themto continue the work and finish the same quickly. This act of the accusedpersons/Petitioners clearly shows that they were negligent and theirnegligence was gross in ignoring concern of the labourers. Relianceplaced by learned counsel for the Petitioners on Ataur Rehman (supra)is misconceived as the facts of the said case are completely differentfrom the one in hand. In the present case the Complainant has clearlystated that the president along with the other executive members of thecommittee were informed about the weakness of the lanter but theysupported the contractors and asked them to continue working. Due tothe weak lanter with no support and use of sub-standard inferior qualitymaterial the roof collapsed. Further the contention of the learned counselfor the Petitioners that the Thekedars were experts and Petitioners hadno knowledge holds no ground and is liable to be dismissed. The workers/labourer had cautioned all of them about the weak lanter but their warningwas ignored resulting in the mis-happening taking away the life of innocentlabourer and injuring many others.

8. At the stage of charge the learned Trial Court is only requiredto look into the basic material/evidence before it and form an opinion thatprima facie case is made out against the accused persons. In the presentcase the negligence of using inferior quality cement and constructing thelanter without any support is sufficiently proved/stated by the labourerShri Ram. Despite giving them warning the Petitioners ignored the factand asked them to continue with the work. The aspect of determiningthe very nature of degree of the inferior quality material and the extentof involvement of the Petitioners in the offence committed is a matter offact which is to be looked into during the trial. At this stage I find noreason to interfere with the order of the learned Metropolitan Magistrate.

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Thus the petition and the application are dismissed being devoid ofmerits.

ILR (2012) 6 DELHI 119MAC

LALIT A PARASHAR & ANR. ….APPELLANT

VERSUS

RANJEET SINGH NEGI & ORS. ….RESPONDENTS

(G.P. MITT AL, J.)

MAC. APP : 523/2011 DATE OF DECISION: 17.07.2012

Motor Vehicles Act, 1988—Section 168—Awardchallenged inter alia on the ground that whileconsidering the income of the deceased amount paidby the deceased employer towards medical, L TA basket,Provident Fund and medi-claim premium, was not takeninto consideration—Deceased was working with a multinational company—Held, deceased was getting a flexibasket of Rs. 11,539/- per month, besides salary—Inmulti national companies normally choice is given toan employee as to how the employee wants to takethe package to give advantage of deduction in incomeTax Act—The deceased gave the choice to get theamount of Rs. 11,539/- as reimbursent towardsconveyance, petrol, mobile phone usage chargesetc.—If some facilities are provided are provided bythe employer for the benefit of employee or his family,the same are relevant for the purpose of computationof income of the deceased—Thus, apart from dearnessallowance, other allowances, payable for the benefit

of family, are to be considered in computing theannual income.

The deceased was getting a salary of Rs.3,31,126/- perannum which included of flexi basket of Rs.11,539/- permonth. The deceased was an unmarried girl aged 33 yearsand was working in a renowned multi-national company. Ithas to be borne in mind that the multi-national companiesnormally give choice to an employee as to how he/she wantsto take the package to give advantage of deduction underthe Income Tax Act. The deceased had a choice to get theamount of Rs.11,539/- as reimbursement towards theconveyance, towards petrol, towards mobile phone usagecharges, etc. etc. This aspect of the compensation packagebeing offered by the multi-national companies was highlightedby the Supreme Court in National Insurance Co. Ltd. v.Indira Srivastava & Ors., 2008 (2) SCC 763. Para 10 ofthe report is extracted hereunder:-

“10. Section 168 of the Act uses the word “justcompensation” which, in our opinion, should beassigned a broad meaning. We cannot, in determiningthe issue involved in the matter, lose sight of the factthat the private sector companies in place of introducinga pension scheme takes recourse to payment ofcontributory Provident Fund, gratuity and other perksto attract the people who are efficient and hard-working. Different offers made to an officer by theemployer, same may be either for the benefit of theemployee himself or for the benefit of the entirefamily. If some facilities are being provided wherebythe entire family stands to benefit, the same, in ouropinion, must be held to be relevant for the purposeof computation of total income on the basis whereofthe amount of compensation payable for the death ofthe kith and kin of the applicants is required to bedetermined........” (Para 9)

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In Raj Rani v. Oriental Insurance Co. Ltd. (2009) 13 SCC654; while relying on Indira Srivastava (supra)+ theSupreme Court reiterated that apart from dearness allowanceother allowances payable for the benefit of the family, haveto be considered for the computation of the annual income.

(Para 10)

Important Issue Involved: For computing the annualincome of the deceased apart from his basic salary anddearness allowance other allowances payable for the benefitof the family are also to be considered.

[La Ga]

APPEARANCES:

FOR THE APPELLANT : Mr. O.P. Mannie, Advocate.

FOR THE RESPONDENT : Ms. Suman Bagga, Adv. for R-3.

CASES REFERRED TO:

1. Amrit Bhanu Shali & Ors. vs. National Insurance CompanyLtd. & Ors. (2012) 6 SCALE 1.

2. P.S.Somanathan & Ors. vs. District Insurance Officer &Ors. (2011) 3 SCC 566.

3. Raj Rani vs. Oriental Insurance Co. Ltd. (2009) 13 SCC654.

4. National Insurance Co. Ltd. vs. Indira Srivastava & Ors.,2008 (2) SCC 763.

5. New India Assurance Company Ltd. vs. Shanti Pathak(Smt.) & Ors., (2007) 10 SCC 1.

6. U.P. SRTC vs. Trilok Chandara, (1996) 4 SCC 362.

7. General Manager, Kerala State Road TransportCorporation, Trivandrum vs. Susamma Thomas (Mrs.) andOrs. (1994) 2 SCC 176.

8. General Manager, Kerala State Road Transport, vs.Susamma Thomas: (1994) 2 SCC 176.

9. Pushpabai Purshottam Udeshi vs. Ranjit Ginning &Pressing Co. (P) Ltd., (1977) 2 SCC 745.

G.P. MITTAL, J. (ORAL)

1. The Appeal is for enhancement of compensation ofRs.4,60,920/- awarded in favour of the Appellants for the death of Ms.Neeraja Parashar who died in a motor vehicle accident which occurredon 01.08.2008.

2. On appreciation of evidence, Motor Accident Claims Tribunal(the Claims Tribunal) found that the accident was caused on account ofrash and negligent driving of a DTC bus No.DL-1PB-7657 which struckagainst the two wheeler, on which the deceased was travelling as a pillionrider.

3. The finding on negligence has not been challenged by the driver,owner or the Insurance Company and thus, the same has become finalbetween the parties.

4. On quantum of compensation, the Appellants proved a SalaryCertificate Ex.PW-3/3 to show that the deceased was getting an annualsalary of Rs.3,31,126/-. The Claims Tribunal, however, did not take intoconsideration the amount paid by the deceased’s employer towards themedical, LTA basket, Provident Fund and medi-claim premium. TheClaims Tribunal thus took the deceased’s income to be Rs. 11,539/- onlyi.e. the basic salary and HRA to award the loss of dependency.

5. Following contentions are raised on behalf of the Appellants:-

(i) The Claims Tribunal applied the multiplier of ‘7’ as perthe age of deceased’s mother it should have been appliedas per the age of the deceased. Reliance is placed onP.S.Somanathan & Ors. v. District Insurance Officer& Ors. (2011) 3 SCC 566 and Amrit Bhanu Shali &Ors. v. National Insurance Company Ltd. & Ors.(2012) 6 SCALE 1.

(ii) The Claims Tribunal erred in assuming the deceased incometo be Rs.11,539/ per month. Her income should havebeen treated as Rs.3,31,126/- per annum as was reflected

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in the Salary Certificate Ex.PW-3/3.

(iii) Deceased was a young girl of 33 years. She had goodfuture prospects. The Claims Tribunal ought to havegranted addition of 50% in the deceased’s income towardsthe future prospects.

MULTIPLIER:-

6. It is true that in P.S.Somanathan (supra) and Amrit BhanuShali (supra) the multiplier was taken as per the age of the deceased.However, a reference may be made to a three Judge Bench decision ofthe Supreme Court in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC362; where the Supreme Court relied on General Manager, KeralaState Road Transport Corporation, Trivandrum v. Susamma Thomas(Mrs.) and Ors. (1994) 2 SCC 176; and reiterated that the choice of themultiplier is determined by the age of the deceased or that of the claimantswhichever is more. Para 12 of the report is extracted hereunder:-

“12. For concluding the analysis it is necessary now to refer tothe judgment of this Court in the case of General Manager,Kerala State Road Transport, v. Susamma Thomas: (1994)2 SCC 176. In that case this Court culled out the basic principlesgoverning the assessment of compensation emerging from thelegal authorities cited above and reiterated that the multipliermethod is the sound method of assessing compensation. TheCourt observed:

“The multiplier method involves the ascertainment of theloss of dependency or the multiplicand having regard tothe circumstances of the case and capitalizing themultiplicand by an appropriate multiplier. The choice ofthe multiplier is determined by the age of the deceased (orthat of the claimants, whichever is higher) and by thecalculation as to what capital sum, if invested at a rate ofinterest appropriate to a stable economy, would yield themultiplicand by way of annual interest. In ascertainingthis, regard should also be had to the fact that ultimatelythe capital sum should also be consumed-up over theperiod for which the dependency is expected to last.

The principle was explained and illustrated by a mathematicalexample:

“The multiplier represents the number of Years’ purchaseon which the loss of dependency is capitalised. Take forinstance a case where annual loss of dependency is Rs.10,000. If a sum of Rs.1,00,000 is invested at 10% annualinterest, the interest will take care of the dependency,perpetually. The multiplier in this case works out to 10.If the rate of interest is 5% per annum and not 10% thenthe multiplier needed to capitalise the loss of the annualdependency at Rs.10,000 would be 20. Then the multiplieri.e., the number of Years’ purchase of 20 will yield theannual dependency perpetually. Then allowance to scaledown the multiplier would have to be made taking intoaccount the uncertainties of the future, the allowances forimmediate lump sum payment, the period over which thedependency is to last being shorter and the capital feedalso to be spent away over the period of dependency isto last etc. Usually in English Courts the operative multiplierrarely exceeds 16 as maximum. This will come downaccordingly as the age of the deceased person (or that ofthe dependents, whichever is higher) goes up.”

7. There is another three Judge Bench decision of the SupremeCourt in New India Assurance Company Ltd. v. Shanti Pathak (Smt.)& Ors., (2007) 10 SCC 1, where in the case of death of a bachelor, whowas aged only 25 years, the multiplier of 5 was applied according to theage of the mother of the deceased, who was about 65 years at the timeof the accident. Para 6 of the report is extracted hereunder:-

“6. Considering the income that was taken, the foundation forworking out the compensation cannot be faulted. The monthlycontribution was fixed at Rs.3,500/-. In the normal course wewould have remitted the matter to the High Court for considerationon the materials placed before it. But considering the fact thatthe matter is pending since long, it would be appropriate to takethe multiplier of 5 considering the fact that the mother of thedeceased is about 65 years at the time of the accident and age

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of the father is more than 65 years. Taking into account themonthly contribution at Rs.3,500/- as held by the Tribunal andthe High Court, the entitlement of the claim would be Rs.2,10,000/-. The same shall bear interest @ 7.5% p.a. from the date of theapplication for compensation. Payment already made shall beadjusted from the amount due.”

8. In view of the decision in Trilok Chandara (supra) and ShantiPathak (supra) the multiplier has to be as per the age of the deceasedor the age of the Claimant whichever is higher. The Claims Tribunal was,therefore, right in applying the multiplier of ‘7’ according to the age ofthe deceased’s mother.

MULTIPLICANT

9. The deceased was getting a salary of Rs.3,31,126/- per annumwhich included of flexi basket of Rs.11,539/- per month. The deceasedwas an unmarried girl aged 33 years and was working in a renownedmulti-national company. It has to be borne in mind that the multi-nationalcompanies normally give choice to an employee as to how he/she wantsto take the package to give advantage of deduction under the Income TaxAct. The deceased had a choice to get the amount of Rs.11,539/- asreimbursement towards the conveyance, towards petrol, towards mobilephone usage charges, etc. etc. This aspect of the compensation packagebeing offered by the multi-national companies was highlighted by theSupreme Court in National Insurance Co. Ltd. v. Indira Srivastava& Ors., 2008 (2) SCC 763. Para 10 of the report is extracted hereunder:-

“10. Section 168 of the Act uses the word “just compensation”which, in our opinion, should be assigned a broad meaning. Wecannot, in determining the issue involved in the matter, lose sightof the fact that the private sector companies in place of introducinga pension scheme takes recourse to payment of contributoryProvident Fund, gratuity and other perks to attract the peoplewho are efficient and hard-working. Different offers made to anofficer by the employer, same may be either for the benefit ofthe employee himself or for the benefit of the entire family. Ifsome facilities are being provided whereby the entire family standsto benefit, the same, in our opinion, must be held to be relevant

for the purpose of computation of total income on the basiswhereof the amount of compensation payable for the death ofthe kith and kin of the applicants is required to bedetermined........”

10. In Raj Rani v. Oriental Insurance Co. Ltd. (2009) 13 SCC654; while relying on Indira Srivastava (supra)+ the Supreme Courtreiterated that apart from dearness allowance other allowances payablefor the benefit of the family, have to be considered for the computationof the annual income.

11. In Pushpabai Purshottam Udeshi v. Ranjit Ginning &Pressing Co. (P) Ltd., (1977) 2 SCC 745, it was held that dearnessallowance, conveyance allowance and other allowances are to be treatedas part of the deceased’s income.

12. It is important to note that in case of a bachelor, 50% deductionis made towards the personal and living expenses and, therefore also nofurther deduction was required to be made towards any of the allowancespayable to the deceased.

FUTURE PROSPECTS

13. The deceased was appointed with NIIT Technology Ltd. by anappointment letter dated 04.12.2007. She was on probation for a periodof one year which could be extended at the discretion of her employer.In the circumstances and in the absence of any evidence as to the futureprospects, the Appellants are not entitled to any addition in the deceased’sincome for computation of loss of dependency.

14. There was liability of about Rs.15,000/- towards the paymentof income tax on package of Rs.3,31,126/-.

15. The loss of dependency thus works out as Rs.11,06,441/-(3,31,126/- - 15,000/- x 1/2 x 7).

16. I would further make a provision of Rs.25,000/- towards lossof love and affection, Rs. 10,000/- each towards funeral expenses andloss to estate.

17. The overall compensation comes to Rs.11,51,441/-.

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18. The enhanced compensation of Rs. 6,90,521/- shall carry interest@ 7.5 % per annum from the date of filing of the Petition till its payment,which shall be disbursed equally between the Appellants.

19. Respondent No.3 ICICI Lombard General Insurance CompanyLimited is directed to deposit the enhanced compensation along withinterest with the Claims Tribunal within six weeks.

20. 50% of the enhanced compensation shall be held in fixed depositfor a period of two years. Rest shall be released on to the Appellants ondeposit.

21. The Appeal is allowed in above terms.

22. Pending Applications also stand disposed of.

ILR (2012) 6 DELHI 127TEST

PROF. B.R. GROVER ….PETITIONER

VERSUS

THE STATE ….RESPONDENT

(VALMIKI J. MEHT A, J.)

TEST CASE NO. : 41/1995 DATE OF DECISION: 23.07.2012

Hindu Succession Act, 1956—Probate—T estament arycase of late Smt. Lajwanti Grover seeking probate ofwill filed—Three sets of objections filed—One set ofobjection was filed by son of first wife of deceasedhusband of late Smt. Lajwanti Grover Second set ofobjection was filed by legal heirs of pre—deceasedson of deceased husband and third set of objectionwas filed by other two sons of deceased husband—

Third set of objections challenged ownership of lateSmt. Lajwanti Grover, second wife of deceased husbandqua property in East Patel Nagar, New Delhi allegingthat she was not owner of property and therefore, shecould not bequeath the same Held:—A Probate Courtdoes not go into the title of the properties—It onlyexamines the validity of will i.e. essential execution ofthe will, attestation of the will and the sound disposingmind of the testator (which will include the aspect ofany surrounding circumstances qua the will).

Coming to the objections of Sh.Om Prakash Grover (whoargued his case in person) and Sh.Sudarshan Kumar Grover(who is now deceased and was represented through hiswidow Smt. Manju Grover during the final arguments) suchobjections as argued before me, were primarily on theground that Smt. Lajwanti Grover was not the owner of theproperty bearing No.33/12, East Patel Nagar, New Delhi andtherefore she could not bequeath the same. These argumentsraised on behalf of Sh.Om Prakash Grover and the legalheirs of Sh. Sudarshan Kumar Grover are liable to bedismissed on the ground that a Probate Court does not gointo the title of the properties. A Probate Court only examinesthe validity of the Will, i.e. essentially execution of the Will,attestation of the Will, and the sound disposing mind of thetestator (which will include the aspect of any surroundingcircumstances qua the Will which may show lack of sounddisposing mind of the executor). Therefore, I reject theobjections filed on behalf of Sh. Om Prakash Grover andSh. Sudarshan Kumar Grover inasmuch as the only pointurged before me is with regard to the title of the East PatelNagar property, and which aspect cannot be examined in aprobate petition. I am informed that there is already apartition suit which is pending where not only the legal heirsof Smt. Lajwanti Grover are parties, but in such suit the legalheirs from the first marriage of Sh. Haveli Ram Grover arealso parties. These issues of title to this property as to

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whether Smt. Lajwanti Grover did own or did not own theEast Patel Nagar property or whether the said propertybelonged to larger HUF would be heard and disposed of inthat suit. I make no pronouncement on such issues whichare subject matter of that partition suit inasmuch as a Courthearing a testamentary case has only to see the validity ofthe Will of Smt. Lajwanti Grover. (Para 6)

Important Issue Involved: A Probate Court does not gointo the title of the properties. It only examines the validityof will i.e. essential execution of the will, attestation of thewill and the sound disposing mind of the testator (whichwill include the aspect of any surrounding circumstancesqua the will).

[Sh Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. N. Safaya. Adv.

FOR THE RESPONDENT : Mr. S.K. Chachra with Ms.Gaganpreet Chawla, Advs, for R-10& 11

CASE REFERRED TO:

1. Smt. Kamla Kunwar vs. Ratan Lal & Ors., AIR 1971Allhabad 304.

RESULT: Petition allowed.

VALMIKI J. MEHTA, J (ORAL)

1. This Testamentary Case was filed seeking probate of the Willdated 22.7.1994 of late Smt. Lajwanti Grover, wife of late Sh. HaveliRam Grover. The petition was originally filed by the named executor-Mr.B.R.Grover, a son and a beneficiary under the Will. On the death ofSh.B.R.Grover during the pendency of the case, he was substituted byBrigadier Surinder Kumar Grover, another son of deceased Smt. LajwantiGrover, and also one of the beneficiary under the Will dated 22.7.1994.

The probate petition therefore will become a petition for grant of lettersof administration with the Will annexed inasmuch as the executor of theWill is no longer alive.

2. Sh.Haveli Ram Grover married twice. The first wife (hereinafterreferred to as the ‘first wife’ inasmuch as none of the counsel coulddisclose the name of the first wife nor the name appears in the judicialrecord) died sometime in 1918. There were three children from the firstmarriage of Haveli Ram Grover namely Smt. Leela Devi Dua (daughter),Smt. Vidyawati (daughter) and Sh.Roshan Lal Grover (son). Smt. LajwantiGrover was the second wife of late Sh. Haveli Ram Grover. From thissecond marriage of Sh.Haveli Ram Grover with Smt. Lajwanti Grover,seven children were born i.e. five sons and two daughters. The elder sonwas Sh.Darbari Lal Grover who expired before the death of Smt. LajwantiGrover. Sh.Darbari Lal Grover died sometime around in August, 1979leaving behind his widow-Smt. Santosh Grover and three daughters namelySmt. Anju Choudhary, Smt. Kiran Chaddha and Smt. Neelam Manchanda.The other four sons of Smt. Lajwanti Grover who were alive on the dateof death of Smt. Lajwanti Grover on 18.6.1995 were Sh. Baldev RajGrover (erstwhile petitioner), Sh. Om Prakash Grover (one of theobjector), Sh. Sudarshan Kumar Grover (another objector) and Sh.Surinder Kumar Grover (the present petitioner who was substituted forSh. Baldev Raj Grover the original petitioner). The two daughters areKumari Amrita Grover and Kumari Shakuntala Grover.

3. I have given extensive details of the family inasmuch as it willhave to be understood as to who are in law entitled to file objections tothe Will. Objections have been filed by three persons/sets of persons.Objections firstly are filed by Sh. Roshan Lal Grover, who is the son ofthe first wife of late Sh. Haveli Ram Grover. The second set of objectionshave been filed by the legal heirs of the pre-deceased son Sh. Darbari LalGrover namely Sh. Santosh Grover (widow of Darbari Lal Grover) andSmt. Kiran Chhadha and Smt. Neelam Manchanda, two daughters ofSh.Darbari Lal Grover. One daughter of Sh.Darbari Lal Grover, Smt.Anju Choudhary has given her no-objection to the grant of the probateinasmuch as she is a beneficiary under the Will. Third set of objectionsare filed by Sh. Om Prakash Grover and Sh.Sudarshan Kumar Grover.Though objections have been separately filed by these two sons of late

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Smt. Lajwanti Grover, however I am taking objections filed by boththese persons, Sh. Om Prakash Grover and Sh.Sudarshan Kumar Grovertogether inasmuch as objections filed by them are near identical. Sh.Sudharshan Kumar Grover expired during the pendency of the petitionand he is represented by his legal heirs including his widow-Smt. ManjuGrover.

4. So far as the objections which have been filed by Sh. RoshanLal Grover who is the son of the first wife of late Sh. Haveli RamGrover, these objections have to be dismissed in limine/forthwith inasmuchas Sh. Roshal Lal Grover has no locus standi to file any objections to theWill of Smt. Lajwanti Grover. This I say so because objections are filedeither by the legal heirs or others who inherit properties of the deceasedunder the applicable law of succession or any other person including thelegal heirs, who claimed to inherit the property through a different Willor by any other method legally provided. Sh.Roshan Lal Grover does notclaim any Will to be executed in his favour, and since as per the Scheduleto the Hindu Succession Act, 1956 there are preferential class heirs beingthe children of Smt. Lajwanti Grover who are alive, Sh. Roshan LalGrover is not a legal heir and thus has no locus standi to file anyobjections. Any and every person (except who would be entitled to theestate of the deceased), cannot file objections to the Will. I thereforereject the objections filed by Sh.Roshan Lal Grover.

5. So far as the objections which are filed by Smt. Santosh Groveralongwith Smt.Kiran Chhadha and Smt. Neelam Manchanda, the legalheirs of Sh. Darbari Lal Grover, these objections in my opinion have alsoto be necessarily dismissed inasmuch as none of these persons havestepped into the witness box to prove their case whereas on behalf ofthe petitioner sufficient evidence has been led to prove the due executionof the Will of Smt. Lajwanti Grover. Of course, I would for the sake offormality, discuss the arguments which have been advanced by theAdvocate-Mr. Chachra who appears for these legal heirs and for whichdiscussion in this judgment it is assumed that those objections survive inspite of no evidence having been led by the objectors who are legal heirsof Sh. Darbari Lal Grover.

6. Coming to the objections of Sh.Om Prakash Grover (who argued

his case in person) and Sh.Sudarshan Kumar Grover (who is now deceasedand was represented through his widow Smt. Manju Grover during thefinal arguments) such objections as argued before me, were primarily onthe ground that Smt. Lajwanti Grover was not the owner of the propertybearing No.33/12, East Patel Nagar, New Delhi and therefore she couldnot bequeath the same. These arguments raised on behalf of Sh.OmPrakash Grover and the legal heirs of Sh. Sudarshan Kumar Grover areliable to be dismissed on the ground that a Probate Court does not go intothe title of the properties. A Probate Court only examines the validity ofthe Will, i.e. essentially execution of the Will, attestation of the Will, andthe sound disposing mind of the testator (which will include the aspectof any surrounding circumstances qua the Will which may show lack ofsound disposing mind of the executor). Therefore, I reject the objectionsfiled on behalf of Sh. Om Prakash Grover and Sh. Sudarshan KumarGrover inasmuch as the only point urged before me is with regard to thetitle of the East Patel Nagar property, and which aspect cannot be examinedin a probate petition. I am informed that there is already a partition suitwhich is pending where not only the legal heirs of Smt. Lajwanti Groverare parties, but in such suit the legal heirs from the first marriage of Sh.Haveli Ram Grover are also parties. These issues of title to this propertyas to whether Smt. Lajwanti Grover did own or did not own the EastPatel Nagar property or whether the said property belonged to largerHUF would be heard and disposed of in that suit. I make no pronouncementon such issues which are subject matter of that partition suit inasmuchas a Court hearing a testamentary case has only to see the validity of theWill of Smt. Lajwanti Grover.

7. Therefore, in reality there are no objections at all before thisCourt because so far as the objections of Sh. Roshan Lal to the Will ofLajwanti Grover are concerned they stand dismissed on the ground oflack of locus standi, so far as the objections of the legal heirs of Sh.DarbariLal Grover are concerned they would stand dismissed inasmuch as noevidence has been led on their behalf, and so far as the objections onbehalf of Sh.Om Prakash Grover and late Sh. Sudarshan Kumar Groverare concerned they would stand dismissed inasmuch as the only issueurged was with respect to title of the property at East Patel Nagar andwhich cannot be an issue in a probate petition.

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8. Independently of the fact that there are no objections, let menow examine as to whether the Will of late Smt. Lajwanti Grover hasbeen proved to have been executed by late Smt. Lajwanti Grover, attestedas per law and, whether Smt. Lajwanti Grover was in a sound disposingmind, hastening to add that this has to be considered in the light of thefact that there is no evidence to the contrary led on behalf of thoseobjectors who matter or if led by Om Prakash Grover, no argumentshave been addressed except on the aspect of lack of title of Smt. LajwantiGrover to the East Patel Nagar property.

9. The Will in question dated 22.7.1994 was scribed by an Advocate-Dr. S.P. Sharma. It is not disputed, evidence having been led to thiseffect, that Dr. S.P. Sharma had been representing late Smt. LajwantiGrover in various litigations. Therefore, Dr. S.P. Sharma is not a strangerand it is natural for a person to have a Will executed by a lawyer knownto that person i.e. Smt. Lajwanti Grover in this case. Dr. S.P.Sharma hasentered the witness box and affirmed the factum with regard to hisscribing the Will as per the instructions of late Smt. Lajwanti Grover. Dr.S.P. Sharma has also proved and exhibited the rough notes made by himas Ex.PW4/A, and which rough notes were taken on the directions ofSmt. Lajwanti Grover and pursuant to which he thereafter got the Willprepared. Dr. S.P. Sharma has also deposed with regard to the Willhaving been executed in his presence by Smt. Lajwanti Grover andattested in his presence by both the witnesses. Dr. S.P. Sharma has alsodeposed as to the sound deposing mind of the deceased testator.

10. The petitioner has also led the evidence of the attesting witness,one Sh. Surinder Kumar Sharma who was the clerk of Dr.S.P. Sharma.This clerk has deposed with regard to the Will having executed in hispresence and he having attested the Will in the presence of testator. Hehas also deposed that both the attesting witnesses signed the Will in thepresence of Smt. Lajwanti Grover and that Smt. Lajwanti Grover executedthe Will in the presence of both the attesting witnesses. He has alsodeposed with respect to the sound disposing mind of Smt. LajwantiGrover.

11. Since no affirmative evidence at all has been led on behalf ofthose objectors who are the legal heirs as per Hindu Succession Act,

1956 of late Smt. Lajwanti Grover as to lack of any sound disposingcapacity of Smt. Lajwanti Grover to execute the Will, I have to believethe affirmative depositions made by the witnesses on behalf of thepetitioners. Merely because the testator was of an old age of 89 years,in my opinion, the same in itself cannot mean that she was not of asound disposing mind because not only there is no affirmative evidenceled on behalf of the relevant objectors to show lack of sound disposingmind, there is a positive evidence led on behalf of the petitioner to showthat Smt.Lajwanti Grover was in a fit mental state to execute the Will.I may only add that on behalf of Sh.Om Praksh Grover, the only pleaurged during final arguments was with regard to the lack of allegedownership of late Smt. Lajwanti Grover of the property of East PatelNagar, New Delhi and no arguments have been addressed with respectto lack of soundness of mind of Smt. Lajwanti Grover at the time ofexecution of the Will.

12. The upshot of the discussion is that the Will of Smt. LajwantiGrover, Ex.PW2/A has been duly proved to have been executed by lateSmt. Lajwanti Grover in the presence of attesting witnesses, the attestingwitnesses signed in her presence, and, Smt. Lajwanti Grover was ofsound disposing mind. I may also add that there is sufficient explanationgiven on behalf of the petitioner, by leading evidence to the effect of boththe attesting witnesses; as well as scribing of the Will, that since thehands of Smt. Lajwanti Grover were shaking therefore Smt. LajwantiGrover put her thumb impression on the Will instead of signing the same.

13. On the aspect of the validity of the Will I must add that thereare no suspicious circumstances surrounding the Will. This I say sobecause the legal heirs of the first wife of Sh. Haveli Ram Grover weredisinherited by the Will inasmuch as Smt. Lajwanti Grover had her ownprogeny through late Sh. Haveli Ram Grover. In such circumstances itis surely not unnatural to discard the children of the first wife. FurtherSh. Darbari Lal Grover has been proved on record, and in fact admittedin more or less terms, to have separated from the family long back andthat he was living separately. There is also some evidence on record ofSh. Darbari Lal Grover having been given a particular property in Delhiby the father Sh. Haveli Ram Grover. In my opinion aforesaid facts aretherefore sufficient reasons even to disinherit the branch of Sh. Darbari

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heirs of Sh. Darbari Lal Grover namely respondents no. 10 and 11 andwho are the daughters of late Sh. Darbari Lal Grover. As already statedabove these arguments are purely in deference to the arguments urgedby Mr. Chachra before me because I have already observed above, thatin the absence of these objectors having stepped into the witness box toprove their case I have no reason to disbelieve affirmative testimonies onbehalf of the witnesses of the petitioner.

15. One objection which was raised by Mr. Chachra, Advocate wasthat the affidavit filed in support of the probate on first date was defectiveinasmuch as the affidavit contains the date of Will as 27.7.1994 insteadof 22.7.1994. Similar arguments were also urged on behalf of Sh. OmPrakash Grover. In my opinion, this argument is really of no substanceinasmuch as surely this is nothing but a typographical error inasmuch asit is not disputed that original Will itself was filed at the time of filing ofthe probate petition. Once original Will was filed there was no reasonwhy in the affidavit the date of the Will would have been written as27.7.1994 and not 22.7.1994, except of course because of a typographicalerror. I thus reject this argument urged on behalf of Mr. Chachra andalso raised by Om Prakash Grover.

The second main head of argument was that on account of allegedlack of due attestation of the Will dated 22.7.1994. This lack of dueattestation as argued exists on an alleged inconsistency that the attestingwitness Sh. Surinder Kumar Sharma at one place said that he signed theWill first (although he was at serial no.2 in the attesting witnesses portion)and at another place he had said the he first signed the Will and thereafterthe other attesting witness Smt. V.B.Chanana signed the Will. Surely,minor inconsistencies always crop up in a civil case, however what hasto be seen is totality of circumstances alongwith the facts of each case.Taken at the best even assuming Sh. Surinder Kumar Sharma could havelied as to the serial-wise attestation of the Will, however it is settled lawthat doctrine of Falsus in Uno Falsus in Omnibus has no application inIndia i.e. merely because the witness lies on one point his total testimonyhas not to be discarded. Of course, in my opinion, I do not think thatthe witness Sh. Surinder Kumar Sharma can be said to be lying as onehas to consider the fact that as many as 8 years had passed from theexecution of Will by Smt. Lajwanti Grover and its attestation by Sh.

Lal Grover generally. I am using the expression “generally” deliberatelyinasmuch as in the Will, Smt. Lajwanti Grover has made a provision forbequeathing that share which came to her through Sh. Darbari Lal Groverin the two properties at Himachal Pradesh and Delhi, to the daughter ofSh. Darbari Lal Grover namely Smt. Anju Choudhary. In reality thereforeSmt. Lajwanti Grover has acted fairly because whatever she derivedfrom the branch of her son Sh. Darbari Lal Grover on account of herbeing the legal heir of the son, she has bequeathed that inheritance of hereffectively to that very branch of Sh. Darbari Lal Grover by bequeathingthe same to one of the legal heirs (namely the daughter) of Sh. DarbariLal Grover, Smt. Anju Chaudhary. With regard to the immovable propertiesexisting at East Patel Nagar, Smt. Lajwanti Grover has bequeathed thesame to her three sons namely Sh. Om Prakash Grover, Sh. SudarshanKumar Grover and Sh. Surinder Kumar Grover and two daughters namelySmt. Amrita Grover and Smt. Shakuntla in equal shares. Sh. Baldev RajGrover was a bachelor, and therefore, Smt Lajwanti Grover thought itfit not to bequeath anything in the East Patel Nagar property to the saidSh. Baldev Raj Grover, and Sh. Baldev Raj Grover was given share ofthe property in Himachal Pradesh. In any case, Sh. Baldev Raj Groverhimself had originally filed this probate petition and therefore, he has noobjection to the Will. I must observe that I am indeed surprised at theso-called objections which have been filed on behalf of Sh. Om PrakashGrover and late Sh. Sudarshan Kumar Grover because by objecting tothe Will they will get a lesser share in the East Patel Nagar property,however, for whatever reason they have chosen to file objections ofcourse which were limited to challenge of the ownership of late LajwantiGrover to this East Patel Nagar property. I have already observed abovethat a Court hearing probate case does not go into the title of the property.Therefore, the Will executed by Smt. Lajwanti Grover cannot be said inany way to be unnatural inasmuch as she has given valid reasons in theWill to give her different properties/shares therein to her different persons/legal heirs and details of which have been given above. I therefore holdthat there is nothing unnatural in Smt. Lajwanti Grover having executedthe Will dated 22.7.1994.

14. Now let me for the sake of formality discuss the argumentswhich have been raised by Mr. Chachra, Advocate on behalf of the legal

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impression was a left hand thumb impression or right hand thumbimpression would make any difference especially as the clients of Mr.Chachra, Advocate (as respondents no. 10 and 11) have not supportedtheir own case because they have not even bothered to step into thewitness box. A person who has no courage to face the test of cross-examination, has to, in my opinion, necessarily fail. I therefore evenreject this argument urged on behalf of respondents no.10 & 11.

16. In view of the above, I hold that Will dated 22.7.1994 of lateSmt. Lajwanti Grover stands proved as it has been duly executed andattested, and Smt. Lajwanti Grover was in sound disposing mind at thetime of execution of the Will. I hold that this Will, Ex.PW2/A stands dulyproved. The issues no. 1 and 2 in this case are accordingly decidedholding the Will dated 22.7.1994 of Smt. Lajwanti Grover duly proved.

17. Accordingly, let letters of administration issue in favour of thepresent petitioner, Sh. Surinder Kumar Grover in accordance with law onSh.Surinder Kumar Grover filing the necessary administration/surety bond.Court fees will be paid as per law before drawing up of the letters ofadministration by the Registry. The probate petition is thereof allowed byissuing of letters of administration in favour of Sh. Surinder KumarGrover with respect to the Will, Ex.PW2/A, of Smt. Lajwanti Groverdated 22.7.1994.

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Surinder Kumar Sharma and the deposition in this Court. I wouldaccordingly like to attach no weight to this argument and which isaccordingly rejected.

Another argument urged on behalf of Mr. Chachra was that therough notes, Ex.PW4/A, do not tally with the Will which is executedinasmuch as the Rajender Nagar property was already sold at the timeof making of the Will, and the notes refer to the share of Smt. LajwantiGrover in this property, showing that there are suspicious circumstancesin making of the Will. Surely, rough notes which are prepared are basicallyto indicate the substance of the Will to be made, and rough notes neednot exactly have the language of the Will itself. A reference to the shareof Smt. Lajwanti Grover in the Rajender Nagar property when in therough notes is stated as the share in this property, this aspect has beenclarified in the Will to be the share of the property in terms of the moniesavailable on the sale of the property. Once again therefore this argumentof any alleged inconsistency in just one line of the rough notes whichruns into over three pages, is hardly a circumstance to disbelieve theWill.

The final argument urged on behalf of Mr. Chachra was that wherethe thumb impression of Smt. Lajwanti Grover is put, it is not writtenwhether it is a left thumb impression or right thumb impression. Mr.Chachra also sought to rely upon judgment in the case of Smt. KamlaKunwar vs. Ratan Lal & Ors., AIR 1971 Allhabad 304 to argue thatif there is no mention of which thumb is the thumb impression, Courtsmust examine the Will more carefully because then there would besuspicious circumstances. Besides the fact that in my opinion, it is ofonly little relevance to write that whether it was a left thumb impressionor right thumb impression, the facts of the Kamla Kunwar (supra) caseare different inasmuch as in the said case there were various otherdocuments to compare the thumb impressions of the deceased with thethumb impression on the Will. It was in such circumstances that it wasfound that once there are various documents, the aspect of the mentioningof the RTI (Right Thumb Impression) became relevant in Kamla Kunwar(supra) case. Therefore, besides the issue of facts of Kamla Kunwar(supra) being different, I for one do not think that in the facts of thepresent case non-mentioning of the factum as to whether the thumb

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possession of an alternate shop in a commercial areaessentially makes it a case of requirement of additionalaccommodation. It is settled legal position that in such casesleave to defend must ordinarily be granted to the tenant. InSantosh Devi vs Chand Kiran 2001(8) Scale 346, it hasbeen held by the Hon’ble Apex Court that it is a case foradditional accommodation and looking to the facts andcircumstances, especially in the light of the additionalaccommodation which is subsequently made available to therespondent as mentioned by the appellant, the question ofthe respondent’s need was required to be thrashed onmerits by a full fledged trial. In S.M. Mehra vs D.D. Mallik2001 (1) SCC 255, the Hon’ble Apex Court has held thatthere is no need to take a summery procedure since it is acase of additional accommodation. (Para 12)

Important Issue Involved: Factum of the landlord beingin possession of alternate premises essentially makes it acase of requirement of additional accommodation and insuch cases leave to defend must ordinarily be granted.

[Gi Ka]

APPEARANCES:

FOR THE PETITIONERS : Mr. Ramdhir Jain with Mr.Dhananjani Jain and Ms. RuchikaJain, Advocates.

FOR THE RESPONDENT : Mr. Gautam Gupta, Advocates.

CASES REFERRED TO:

1. Santosh Devi vs. Chand Kiran 2001(8) Scale 346.

2. Inderjeeet Kaur vs. Nirpal Singh (2001) 1 SCC 706.

3. S.M. Mehra vs. D.D. Mallik 2001 (1) SCC 255.

4. Santosh Devi Soni vs.Chand Kiran JT 2000(3) SC 397.

5. Hasmat Rai and Anr. vs. Raghunath Prasad AIR 1981

ILR (2012) 6 DELHI 139R.C

S.K. SETH & SONS ….PETITIONER

VERSUS

VIJA Y BHALLA ….RESPONDENT

(M.L. MEHT A, J.)

R.C. REV. NO. : 268/2012 DATE OF DECISION: 25.07.2012

Delhi Rent Control Act, 1958—Section 14 (1)(e)—Petitioner tenant sought leave to contest evictionpetition on the grounds that the respondent landlorddid not have bona fide requirement of the demisedpremises, as respondent was in possession of a shopon ground floor of the suit property, which makes it tobe a case of requirement of additional accommodationand that being so, petitioner tenant was entitled toleave to defend—Additional Rent Controller dismissedthe leave to defend application and passed evictionorder—Revision—Held, as per record, the respondentlandlord concealed the fact of being in possession ofa shop on the ground floor and this fact was admittedby respondent only on being confronted before thetrial court, as such the trial court erred in summarilyrejecting a substantial triable issue—Also held, thefactum of the respondent being in possession ofalternate shop in a commercial area, essentially makesit a case of requirement of additional accommodationand in such cases leave to defend must ordinarily begranted.

Thus, the petitioner was entitled to leave to contest as animportant triable issue was established by the petitioner.Furthermore, the factum of the respondent being in

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SC 1711.

6. Nanalal Goverdhandhas and Co. vs. Samratbhai LilachandShah (AIR 1981 Bom 1).

RESULT: Petition allowed.

M.L. MEHTA, J.

1. Order impugned before this Court is the judgment of AdditionalRent Controller (ARC) dated 11.01.2012 whereby the application forleave to defend to contest the eviction petition moved by the respondentwas dismissed and an order of eviction was passed against the petitioner.

2. In the eviction petition filed by the respondent against the petitionerunder Section 14(1) (e) of the Delhi Rent Control Act (herein afterreferred to as ‘DRCA’), it was submitted that the respondent ownsproperty no. 43(suit property), Bhalla Building, G.B. Road, Delhi.Admittedly, the basement of the said property is under the tenancy of thepetitioner at a monthly rent of Rs. 1163.33. It was further submitted thatthe respondent carries on the business of generators from a differentpremises bearing no. 47 G.B. Road, Delhi , taken on a monthly rent ofRs. 18,000/-. It was averred that the respondent has two sons carryingon the business of generators and cutting tools in the above mentionedrented premises and it was becoming increasingly difficult for therespondent and his sons to accommodate their ever growing customersin the tenanted shop. Hence, pleading bonafide requirement, the evictionpetition was filed by the respondent.

3. The petitioner-tenant sought leave to contest the eviction petitionby filing the application under Section 25-B (4 & 5) of DRCA contestingthe claim of bonafide requirement made by the respondent. It was averredby the petitioner that the eviction petition cannot be tried by summaryprocedure as it was not in accordance with the provisions of Section 25-B because site plan of the suit premises was not filed by the respondent.It was further submitted that the lease deed of the tenanted shop inpossession of the respondent was also not placed on record and nodetails were furnished by the respondent regarding the business carriedon by the respondent and his sons and hence the requirement of the suitpremises by the respondent was not established. It was further argued

that the respondent did not mention in the eviction petition that his sonsare in any way dependent on him for accommodation and, hence thepetition lacked the necessary ingredients of Section 14 (1) (e) of DRCA.It was further averred by the petitioner that in the year 2002, therespondent sold one of his shops on the ground floor of the buildingowned by him to M/s. Sardar Mill Store and in the year 2007, he soldthe portion of first floor of the building to Ashoka Bearing Enterprises,which shows that there was no bonafide requirement of the respondentand the eviction petition was filed with the ulterior intent of selling theproperty at high prices. It was further contented that the respondent hasconcealed the fact that he filed an eviction petition against Sh. NirmalSingh and Taranpreet Singh in respect of shop situated on the groundfloor of the suit premises, wherein eviction order was passed on12.07.2011 and hence the requirement of the respondent now standsfulfilled.

4. The averments made by the petitioner were refuted by therespondent in the reply to the application for leave to defend filed by him.The site plan of the suit premises and lease deed of the shop in possessionof the landlord was placed before the Court. After consideration of thematerial on record, the ARC passed the impugned order, observing thatno triable issue was made out by the petitioner and the respondent wasable to establish the fact of bonafide requirement of the suit property forexpanding the business with his sons and accordingly decreed the evictionorder. The petitioner filed application for review of the order dated11.01.2012 which ended with the same results.

5. The learned counsel for the petitioner has submitted before thisCourt that the petitioner had raised several triable issues in their leave todefend application but the ARC had exceeded his limited jurisdictionvested in him under Section 25-B of the DRCA by dismissing theapplication. It has been submitted that the ld. ARC erred by overlookingthe fact that the respondent was in possession of a shop on the groundfloor of the suit premises, essentially making it a case of requirement ofadditional accommodation. It has been urged that when the question isof additional accommodation required by the landlord, then it is settledlegal position that leave to defend must ordinarily be granted. Reliancehas been placed on Santosh Devi Soni vs.Chand Kiran JT 2000(3) SC

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397. It has been further averred that if a subsequent development whichis likely to have a crucial impact on the eviction proceedings, is broughtbefore the trial Court, then such a development must be duly noted bythe Court while disposing the petition.

6. On the other hand, the learned counsel for the respondent hassubmitted that the eviction decree was rightly passed by the ARC as thepleas taken up by the petition were without any merit and there was notriable issue established by the petitioner, which would permit the grantof leave to defend application filed by the petitioner. It has been furthersubmitted that the shop in possession of the respondent does not meethis requirement as it is situated on the ground floor of the suit premises,whereas the respondent’s requirement is of the shop in the basement andhence the plea of the petitioner regarding alternate property being availablewith the respondent, ought to be rejected.

7. I have heard the rival submissions and perused the record.

8. At the stage of granting leave to defend the real test should bewhether the facts disclosed in the affidavit filed seeking leave to defendprima facie shows that the landlord would be disentitled from obtainingan eviction order, and not whether at the end the defence may fail. If theapplication filed under Section 25-B discloses some substantial triableissues, then it would be grave injustice to brush them outrightly withouttesting the veracity of the claims made by the tenant/applicant.

9. In Inderjeeet Kaur vs. Nirpal Singh (2001) 1 SCC 706 theApex Court has held that

“13.We are of the considered view that at a stage when thetenant seeks leave to defend, it is enough if he prima facie makesout a case by disclosing such facts as would disentitle the landlordfrom obtaining an order of eviction. It would not be a rightapproach to say that unless the tenant at that stage itself establishesa strong case as would non-suit the landlord, leave to defendshould not be granted when it is not the requirement of Section25B(5). A leave to defend sought for cannot also be granted formere asking or in a routine manner which will defeat the veryobject of the special provisions contained in Chapter IIIA of the

Act. Leave to defend cannot be refused where an eviction petitionis filed on a mere design or desire of a landlord to recoverpossession of the premises from a tenant under clause (e) of theproviso to sub-section (1) of Section 14, when as a matter offact the requirement may not be bona fide. Refusing to grantleave in such a case leads to eviction of a tenant summarilyresulting in great hardship to him and his family members, ifany, although he could establish if only leave is granted that alandlord would be disentitled for an order of eviction. At thestage of granting leave to defend parties rely on affidavits insupport of the rival contentions. Assertions and counter assertionsmade in affidavits may not afford safe and acceptable evidenceso as to arrive at an affirmative conclusion one way or the otherunless there is a strong and acceptable evidence available toshow that the facts disclosed in the application filed by thetenant seeking leave to defend were either frivolous, untenable ormost unreasonable. Take a case when a possession is sought onthe ground of personal requirement, a landlord has to establishhis need and not his mere desire. The ground under clause (e)of the proviso to sub-section (1) of Section 14 enables a landlordto recover possession of the tenanted premises on the ground ofhis bona fide requirement. This being an enabling provision,essentially the burden is on the landlord to establish his caseaffirmatively. In short and substance wholly frivolous and totallyuntenable defence may not entitle a tenant to leave to defend butwhen a triable issue is raised a duty is placed on the RentController by the statute itself to grant leave.....”

10. It is necessary to bear in mind that when leave to defend isrefused, the party seeking leave is denied an opportunity to test the truthof the averments of the opposite party by cross- examination and rivalaffidavits may not furnish reliable evidence for concluding the point oneway or the other. Leave to defend must not be granted on mere asking,but it is equally improper to refuse to grant leave when triable issues areraised and the controversy can be properly adjudicated after ascertainmentof truth through cross-examination of witnesses who have filed theiraffidavits.

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11. In the present case, the petitioner has urged that the respondenthas concealed the fact of being in possession of a shop on the groundfloor of the suit premises. From the perusal of record, it is evident thatthis fact bears no mention either in the eviction petition or reply to theleave to defend application filed by the respondent. This fact was admittedby the respondent only when he was confronted by the petitioner in thisregard before the trial Court. While recognizing the right of landlord withrespect to choosing the best suitable accommodation for meeting hisrequirement, it is certainly a triable issue that whether the shop availablewith the landlord is sufficient to meet his requirement or not. Clearly, theld. trial Court erred in summarily rejecting a substantial triable issue.Mere averment that the accommodation which is available is not suitablefor the landlord, is not sufficient to establish his bonafide. This is aquestion which needs to be properly looked into by the trail Court. InNanalal Goverdhandhas and Co. vs. Samratbhai Lilachand Shah(AIR 1981 Bom 1), it has been observed thus :

“22.......The bona fide requirement is in the first place a state ofmind though it may be something more. It must, therefore, bedeposed to by the person who is requiring the premises underSection 13(1)(g) namely, the landlord. If the landlord does notstep into the witness-box to bring before the Court legal evidencefor proving his requirement, then it cannot be said that hereasonably and bona fide requires the premises as mentioned inSection 13(1)(g) .....”

12. Thus, the petitioner was entitled to leave to contest as animportant triable issue was established by the petitioner. Furthermore, thefactum of the respondent being in possession of an alternate shop in acommercial area essentially makes it a case of requirement of additionalaccommodation. It is settled legal position that in such cases leave todefend must ordinarily be granted to the tenant. In Santosh Devi vsChand Kiran 2001(8) Scale 346, it has been held by the Hon’ble ApexCourt that it is a case for additional accommodation and looking to thefacts and circumstances, especially in the light of the additionalaccommodation which is subsequently made available to the respondentas mentioned by the appellant, the question of the respondent’s need wasrequired to be thrashed on merits by a full fledged trial. In S.M. Mehra

vs D.D. Mallik 2001 (1) SCC 255, the Hon’ble Apex Court has held thatthere is no need to take a summery procedure since it is a case ofadditional accommodation.

13. Since it was not disclosed by the respondent that he has filedan eviction petition in respect of a shop on the ground floor of the suitpremises and had eventually succeeded, the petitioner was constrained tobring this fact to the notice of the trial Court. However, this issue wasunceremoniously rejected by the ld. trial Court by noting that the saidshop was not suited for meeting the respondent’s requirements. To mymind, such an approach was uncalled for and contrary to the settled lawon this aspect. In Hasmat Rai and Anr. Vs. Raghunath Prasad AIR1981 SC 1711, it has been held as under:

“When an action is brought by the landlord under Rent RestrictionAct for eviction on the ground of personal requirement, his needmust not only be shown to exist at the date of the suit, but mustexist on the date of the appellate decree, or the date when ahigher court deals with the matter. During the progress andpassage of proceeding from court to court if subsequent eventsoccur which if noticed would non suit the plaintiff, the court hasto examine and evaluate the same and mould the decreeaccordingly.”

14. In view of the foregoing discussion, it is evident that jurisdictionalerror has been committed by the ld. ARC, which calls for interference.The petitioner raised an important triable issue and the ARC could not besatisfied about its veracity at that stage of the lis, without calling foradditional evidence.

15. Consequently, the impugned order is set aside and leave todefend is granted to the petitioner. The parties are directed to appearbefore the ARC on 7.8.2012. The petition stands disposed off in theseterms.

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ILR (2012) 6 DELHI 147W.P.

S.C. BHAGAT & ANR. ….PETITIONERS

VERSUS

UOI & ANR. ….RESPONDENTS

(A.K. SIKRI, ACJ. & RAJIV SAHAI ENDLA W, J.)

W.P (C) NO. : 7911-12/2004 DATE OF DECISION: 26.07.2012

Service Law—Administrative Law—ConsequentialBenefits—Issue involved, whether the direction givenby the Central Administrative T ribunal holding thatpetitioners would be entitled to all consequentialbenefits from the date of regularization would includepayment of arrears of pay, after fixation of pay in theregular pay scale, from the Hon’ble Supreme Court inthe case of Commissioner of Hon’ble Housing Board vsC. Muddaiah, AIR 2007 SC 3100, the answer has to bein affirmative and consequential benefits would includepast wages as well.

The issue is as to whether the direction given by the CATin the judgment dated 06.02.1998 holding that petitionerswould be entitled to ‘all consequential benefits from the dateof regularization’ would include payment of arrears of pay,after fixation of the pay in the regular pay scale from thedate of regularization. (Para 6)

This issue is no more res integra. The Supreme Court inCommissioner, Karnataka Housing Board Vs. C.Muddaiah AIR 2007 SC 3100 has answered and explainedthat consequential benefits would include past wages aswell. It was also a case where the respondent had deniedthe salary for the past period on the ground of ‘no work no

pay’ which is the defence taken by the respondents in theinstant case as well. The Supreme Court negatived thecontention of the respondents and held that onceconsequential benefits were given this would include paymentof back wages as well. Para 24 of the judgment containingdiscussion on this aspect is reproduced below:

“24. We are unable to uphold the argument. In ourjudgment, the submission of the learned Counsel forthe writ petitioner is well founded that in the instantcase also, express and unequivocal direction wasissued by the Court to grant to the writ petitioner“such other consequential benefits that he might getconsequent upon the revision of ranking”. It was alsoobserved that such benefits should be paid to him byDecember 30, 1997 as the writ petitioner was to retirein February, 1998. The said decision, to reiterate, hasbecome final and binding. It is, therefore, not open tothe appellant – Board to contend that the respondentis not entitled to such benefits under 1973 Act andhence no such direction could have been issued bythe Court.” (Para 6)

[Gi Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. I.C. Kumar, Advocates

FOR THE RESPONDENTS : Mr. Jatan Singh, Advocates.

CASES REFERRED TO:

1. J.K. Synthetics Ltd. vs. K.P. Agrawal 2007 III AD (S.C.)52.

2. Commissioner, Karnataka Housing Board vs. C. MuddaiahAIR 2007 SC 3100.

RESULT: Petition allowed.

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Indian Law Reports (Delhi) ILR (2012) 6 Delhi149 150S.C. Bhagat & Anr. v. UOI & Anr. (A.K. Sikri, ACJ.)

A.K. SIKRI, ACTING CHIEF JUSTICE

1. The facts in this case are not in dispute and the issue is in a verynarrow canvas. Having regard to the nature of issue which has arisen forconsideration, it is not necessary to state the facts in detail and takingnote of some relevant facts which are necessary for deciding the issuewould suffice.

2. The petitioners herein had filed O.A. No.2303/1991 seeking to becontinued officiating in the grade of Exhibition Assistant and which O.A.was allowed by the Central Administrative Tribunal (CAT) vide orderdated 06.02.1998. Operative part of the said order reads as under:

“With this, the O.A. is allowed with the direction that therespondents shall hold a review D.P.C. and regularize the servicesof the petitioners in accordance with the unamended rules priorto 1986 as it has been done in pursuance of the decision ofLucknow Bench of this Tribunal. The petitioners will be entitledto all consequential benefits from the date of regularization andno order as to costs.”

3. It is clear from the above that the respondents were directed tohold review DPC and regularize the services of the petitioners inaccordance with the un-amended Rules as existed prior to 1986. At thesame time, direction was also given to give the petitioners ‘all consequentialbenefits from the date of regularization’. The respondents held ReviewDPC and issued order dated 17.02.2000 appointing the petitioners asExhibition Assistant on regular basis with effect from 10.08.1984 and16.08.1984 respectively. In further compliance of the order, they were,vide order dated 10.01.2001, w.e.f. 28.11.1986 appointed in the JuniorGrade of Indian Information Service Group B in the pay scale of Rs.1400-40-1600-50-2300-EB-60-2600. Further promotions have also beenaccorded. However they were not given arrears w.e.f. 28.11.1986.

4. Thus the dispute which arises on the basis of the order appointingthe petitioners as Exhibition Assistant on regular basis was denial ofarrears of pay for the intervening period after fixation of pay as mentionedabove. The case of the petitioners was that since the Central AdministrativeTribunal (CAT) had vide judgment dated 06.02.1998 held that the petitioners

would be entitled to all consequential benefits from the date ofregularization, it included payment of salary in the regular scale as wellfrom the date of regularization i.e. 28.11.1986. According to petitioners,the order was not fully implemented and accordingly they filed ContemptPetition No.438/2002. This petition was dismissed by the CAT vide orderdated 17.01.2003 stating that the respondents had made substantialcompliance of the directions contained in the judgment dated 06.02.1998and in case the petitioners were still aggrieved with the manner thedirections had been complied with, contempt was not the remedy andseparate remedy to raise the grievance in accordance with law wasprovided to the petitioners.

5. In these circumstances, petitioners filed M.A. No.861/2003 inO.A. No. 2303/1991 for compliance of the judgment dated 06.02.1998.This M.A. No.861/2003 has been dismissed vide impugned order dated28.08.2003 holding that the said M.A. would not fall within the scope ofRule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987i.e. to grant the petitioners back wages when the order of the CAT itselfdoes not refer to it. Challenging this order, present petition is filed.

6. The issue is as to whether the direction given by the CAT in thejudgment dated 06.02.1998 holding that petitioners would be entitled to‘all consequential benefits from the date of regularization’ would includepayment of arrears of pay, after fixation of the pay in the regular payscale from the date of regularization.

7. This issue is no more res integra. The Supreme Court inCommissioner, Karnataka Housing Board Vs. C. Muddaiah AIR2007 SC 3100 has answered and explained that consequential benefitswould include past wages as well. It was also a case where the respondenthad denied the salary for the past period on the ground of ‘no work nopay’ which is the defence taken by the respondents in the instant caseas well. The Supreme Court negatived the contention of the respondentsand held that once consequential benefits were given this would includepayment of back wages as well. Para 24 of the judgment containingdiscussion on this aspect is reproduced below:

“24. We are unable to uphold the argument. In our judgment, thesubmission of the learned Counsel for the writ petitioner is well

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a direct judgment of the Supreme Court touching this aspect in the caseof Commissioner, Karnataka Housing Board (supra).

10. We accordingly hold that the petitioners are entitled to arrearsof pay with effect from 28.11.1986 when their services were regularized.The impugned order of the Tribunal is set aside and the respondents aredirected to calculate the arrears of salary payable for the interveningperiod and pay the same to the petitioners within eight weeks.

ILR (2012) 6 DELHI 152TEST CAS

ANAND BURMAN ….PETITIONER

VERSUS

STATE ….RESPONDENT

(V.K. JAIN, J.)

TEST CAS NO. : 25/2010 DATE OF DECISION: 27.07.2012

Indian Succession Act, 1925—Section 57, 67, 276 readwith 227—Deceased, mother petitioners, died afterexecuting a Will—she was survived by two legal heirsnamely her husband, who died during pendency ofProbate petition and her son, i.e., petitioner who isonly surviving petitioner—Disposition of her propertiesby deceased was in favour of petitioner and his wifealso—Petitioner was also one of attesting witnesses—Both attesting witnesses of Will have been produced—Execution of Will thus, stood duly proved—There areno suspicious circumstances surrounding executionof Will in question—One question of law which arosewas as to whether Will, having been attested bypetitioner, bequest to extent it is in his favour, would

founded that in the instant case also, express and unequivocaldirection was issued by the Court to grant to the writ petitioner“such other consequential benefits that he might get consequentupon the revision of ranking”. It was also observed that suchbenefits should be paid to him by December 30, 1997 as the writpetitioner was to retire in February, 1998. The said decision, toreiterate, has become final and binding. It is, therefore, not opento the appellant – Board to contend that the respondent is notentitled to such benefits under 1973 Act and hence no suchdirection could have been issued by the Court.”

8. Mr. Jatan Singh, learned counsel appearing for the respondentssubmitted that the term ‘consequential benefit’ would be different fromthe ‘award of back wages’ and unless there is direction for awarding ofwages for the past period, the petitioners cannot be held entitled to thisrelief more particularly when they have not worked during that periodand the principle of ‘no work no pay’ will apply. In support of thisargument, he has referred to the judgment of the Supreme Court in J.K.Synthetics Ltd. Vs. K.P. Agrawal 2007 III AD (S.C.) 52.

9. We are afraid that judgment is of no assistance to the respondents.That was a case under the U.P. Industrial Disputes Act, 1947 and theCourt described the powers of the Labour Court / Industrial Tribunalsunder the said Act insofar as issue of grant of relief comes up forconsideration after the termination is held to be illegal and unjustified. Theentire judgment proceeds to discuss this aspect and in that context, theSupreme Court clarified that even when the termination is held to beillegal reinstatement does not follow as a matter of routine and woulddependent upon various other circumstances; likewise even whenreinstatement is directed, it is not necessary that same would be coupledwith continuity of service or consequential benefit or award of backwages and that would again depend upon various other factors which areexplained by the Apex Court in the said judgment in detail. Merely becausethe expression ‘consequential benefit’ is used separately from ‘back wages’would not mean that ‘consequential benefit’ would not include ‘backwages’. Such an inference cannot be drawn from this judgment whichneither discusses nor explains what the term ‘consequential’ would meannor was there any case. On the other hand, as mentioned above, we have

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Indian Law Reports (Delhi) ILR (2012) 6 Delhi153 154Anand Burman v. State (V.K. Jain. J.)

be void or not—Held, bequest made to attestingwitnesses of Will, executed by a Hindu, is not voidunder Section 67 of said Act—Therefore, bequestmade to petitioner is not void—As regards hiscompetence as an attesting witness, Section 68specifically provides that no person, by reason ofinterest in, or of his being an executor of, a Will shallbe disqualified as a witness to prove execution of Willor to prove the validity or invalidity thereof—Therefore,petitioner was a competent witness to prove executionof will executed by deceased.

The learned counsel for the petitioner, however, points outthat Section 67 of the Indian Succession Act is placed inPart-VI of the said Act and Section 57 of the Act, whichdeals with applicability of the said part, to the extent it isrelevant, specifically provides that only those provisions ofthe said part which are set out in Schedule-III shall, subjectto the restriction and modification specified therein, apply tothe Will and Codicils made by any Hindu, Buddhist, Sikh orJain made on or before 1.1.1927. He further points out thatChapter-III of the said Act does not refer to Section 67 of theAct which clearly shows that the aforesaid provisions do notapply to the Will in question. He further pointed out thatSection 58 of the Act clearly provides that provisions ofPart-VI shall not apply to testamentary succession to theproperty of any Hindu, Buddhist, Sikh or Jain save andexcept as provided in Section 57 of the Act. The net effectof these provisions, when read together, is that the bequestmade to the attesting witnesses of the Will, executed by aHindu, is not void under Section 67 of the said Act. Therefore,the bequest made to the petitioner is not void. As regardshis competence as an attesting witness, Section 68 of thesaid Act specifically provides that no person, by reason ofinterest in, or of his being an executor of, a Will shall bedisqualified as a witness to prove the execution of the Willor to prove the validity or invalidity thereof. Therefore, Shri

Ashok Chand Burman was a competent witness to proveexecution of the Will executed by late Smt. Sudha Burman.

(Para 7)

Important Issue Involved: Section 67 of the IndianSuccession Act, 1925 deals with effect of gift to attestingwitness. The Section is not applicable to Wills of Hindus byvirtue of section 57 read with Schedule III of the IndianSuccession Act and as such legates under the Will of suchpersons do not forfeit their legacy on becoming attestingwitnesses.

[Ta Si]

APPEARANCES:

FOR THE PETITIONERS : Mr. Sudhir K. Makkar, Advocates.

FOR THE RESPONDENT : None.

CASE REFERRED TO:

1. Jose s/o Immatty Anthony vs. Ouseph & Ors. AIR 2007Kerala 77.

RESULT: Allowed.

V.K. JAIN, J.

1. This is a petition under Sections 276 read with 227 of the IndianSuccession Act, 1925 for grant of probate in respect of a Will executedby late Smt. Sudha Burman on 26.12.2008.

2. It is alleged in the petition that late Smt. Sudha Burman, motherof petitioner herein, died at New Delhi on 07.03.2009. She was 75 yearsold at that time. It is alleged that late Smt. Sudha Burman was survivedby two legal heirs namely her husband late Shri Ashok Chand Burman,who died during the pendency of this petition and her son Dr. Anand C.Burman who is the only surviving petitioner.

The disposition of her properties by late Smt. Sudha Burman wasin the following manner:

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155 156Anand Burman v. State (V.K. Jain. J.)

a. Out of her estate a sum of Rs.5 crores or mutual funds worthRs.2 crores be paid to her daughter in law Ms. Minnie Burman,w/o Dr. Anand Burman.

b. A sum of Rs.5 crores be paid to her son Dr. Anand Burman.

c. A sum of Rs.2 crores be paid to her granddaughter in law Ms.Shivani Burman w/o Shri Aditya Burman.

d. A sum of Rs.2 crores be kept in trust with her son Dr. AnandBurman for the benefit of Mr. Aditya Burman which would bepaid by Dr. Anand Burman in his discretion at an appropriatetime either to Mr. Aditya Burman or to any other person, companyor entity wherein. Mr. Aditya Burman has an interest as may beconsidered appropriate by Dr. Anand Burman.

e. A sum of Rs.2 crores be paid to her granddaughter Ms.Anisha Burman.

f. A sum of Rs.20 in lac be paid in cash to her sister in lawsMs. Asha Burman w/o Late G.C. Burman, Mrs. Indu Burman w/o Sidharth Burman and Mrs. Monika Burman w/o Sh. V.C.Burman.

g. A sum of Rs.1 lac be paid to her assistant Sh. Anil Duggaland 7 gold ginnies in favour of his wife.

h. Entire jewellery lying in the lockers or at home be entrustedto my daughter in law Mrs. Minnie Burman.

i. Jewellery worth Rs.1 crore be given to her granddaughter Ms.Anisha Burman.

j. Jewellery worth Rs.1 crore be given to her granddaughter inlaw Ms. Shivani Burman.

k. Mrs. Minnie shall be given jewellery worth Rs.25 lac to Mrs.Natasha Kapur w/o Sh. Sanjay Kapur. Remaining jewellery willbelong to Mrs. Minnie Burman.

l. Equity share holdings held by the deceased in M/s PuranAssociates Pvt. Ltd. were bequeathed 50% in favour of herhusband Mr. Ashok Chand Burman and remaining 50% to herdaughter in law Mrs. Minnie Burman.

3. The Will dated 26.12.2008 purports to be attested by twowitnesses namely petitioner Dr. Anand C. Burman and one Mr. AjayMarwah. In his affidavit by way of evidence, Mr. Ajay Marwah hasstated that the Will dated 26.12.2008 was executed by late Smt. SudhaBurman wife of Mr. Ashok Chand Burman resident of 2, Rajesh PilotRoad, New Delhi in his presence. He identified signatures of late Smt.Sudha Burman. He also identified his own signatures on the Will Ex.PW1/1, at Point ‘C’.

4. Petitioner Dr. Anand C. Burman is the other attesting witness tothe Will dated 26.12.2008. In his affidavit by way of evidence, he hasstated that he was one of the witnesses to the execution of the said Willand had signed on the last page of the Will as a witness. He further statedthat late Smt. Sudha Burman died on 7.3.2009 and her death certificatewas Ex.PW1/2.

5. The execution of an unprivileged Will is governed by Section 63of Indian Succession Act which, to the extent it is relevant, provides thatthe Will shall be attested by two or more witnesses, each of whom hasseen the Testator sign or affix his mark to the Will or has seen someother person sign the Will, in the presence and by the direction of theTestator, or has received from the Testator a personal acknowledgmentof his signature or mark, or of the signature of such other person; andeach of the witnesses shall sign the Will in the presence of the Testator,but it shall not be necessary that more than one witness be present at thesame time, and no particular form of attestation shall be necessary.Section 68 of Evidence Act, to the extent, it is relevant, provides that ifa document is required by law to be attested, it shall not be used asevidence until at least one attesting witness has been called for thepurpose of proving its execution if there be an attesting witness alive, andsubject to the process of the Court and capable of giving evidence. Sincethe Will is a document required by law to be attested by at least twowitnesses, the petitioner could have proved it by producing one of theattesting witnesses of the Will. However, in the present case, both theattesting witnesses of the Will have been produced. The execution of theWill thus stands duly proved. There are no suspicious circumstancessurrounding execution of Will in question. The deceased had only onechild, and the bequest was to her husband, son and family of the son.

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Indian Law Reports (Delhi) ILR (2012) 6 Delhi157 158Anand Burman v. State (V.K. Jain. J.)

This disposition cannot be said to be unnatural.

6. One question of law which arose during the course of argumentsin this case was as to whether the Will, having been attested by Dr.Anand C. Burman the bequest to the extent it is in his favour, would bevoid or not. Section 67 of the Indian Succession Act provides that a Willshall not be deemed to be insufficiently attested by reason of any benefitthereby given either by way of bequest or by way of appointment to anyperson attesting it, or to his or her wife or husband; but the bequest orappointment shall be void so far as it concerns the person so attesting,or the wife or husband of such person, or any person claiming undereither of them.

7. The learned counsel for the petitioner, however, points out thatSection 67 of the Indian Succession Act is placed in Part-VI of the saidAct and Section 57 of the Act, which deals with applicability of the saidpart, to the extent it is relevant, specifically provides that only thoseprovisions of the said part which are set out in Schedule-III shall, subjectto the restriction and modification specified therein, apply to the Will andCodicils made by any Hindu, Buddhist, Sikh or Jain made on or before1.1.1927. He further points out that Chapter-III of the said Act does notrefer to Section 67 of the Act which clearly shows that the aforesaidprovisions do not apply to the Will in question. He further pointed outthat Section 58 of the Act clearly provides that provisions of Part-VIshall not apply to testamentary succession to the property of any Hindu,Buddhist, Sikh or Jain save and except as provided in Section 57 of theAct. The net effect of these provisions, when read together, is that thebequest made to the attesting witnesses of the Will, executed by a Hindu,is not void under Section 67 of the said Act. Therefore, the bequest madeto the petitioner is not void. As regards his competence as an attestingwitness, Section 68 of the said Act specifically provides that no person,by reason of interest in, or of his being an executor of, a Will shall bedisqualified as a witness to prove the execution of the Will or to provethe validity or invalidity thereof. Therefore, Shri Ashok Chand Burmanwas a competent witness to prove execution of the Will executed by lateSmt. Sudha Burman.

8. In Jose s/o Immatty Anthony v. Ouseph & Ors. AIR 2007

Kerala 77, the defendant in the suit had contended that the bequest as faras the plaintiff is concerned was void since he had also attested the Will.Rejecting the contention, the High Court, inter alia, held as under:-

“7. Section 67 of the Indian Succession Act, 1925 deals with theeffect of gift to attesting witness. This Section is not applicableto Wills of Hindus by virtue of Section 57 read with ScheduleIII of the Indian Succession Act and as such legatees under theWill of such persons do not forfeit their legacy on becomingattesting witnesses...”

9. For the reasons stated hereinabove, it is directed that a probatein respect of the Will dated 26.12.2008 executed by late Smt. SudhaBurman, with copy of the Will annexed to it, be issued to the petitioneras per rules.

The petition stands disposed of.

ILR (2012) 6 DELHI 158CRL.

JANAK RAJ ….PETITIONER

VERSUS

STATE NCT OF DELHI & ORS. ….RESPONDENT

(MANMOHAN, J.)

CRL. M.C. NO. : 312/2012 & DATE OF DECISION: 03.08.2012CRL. M.A. NO. : 1125/2012

Delhi Public Act, 1978—Section 28/112—Code ofCriminal Procedure 1973—Section 482—Petitionerwhose prosecutions is sought to be initiated underSections 28/112 was working only as a manager ofIndian Coffee House—Allegation against petitioner is

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that he failed to produce a license for running aneating house and accordingly, a Kalandara underSections 28 and 112 was lodged against him—Held, ittranspires that petitioner was only a manager and hewas neither owner nor proprietor of premises inquestion consequently, proceedings arising underSection 28 and 112 as well as any other proceedingsarising therefrom against petitioner are quashed.

This Court in S.A.S. Pahwa held as under: (DLT, Pg.198). Inrelation to offence under Section 112, it is contended that aservant or agent is not supposed to obtain a licence inordinary course, and it does not appear plausible to say thata servant or an agent would fall within the term whoevernotwithstanding the fact that the term whoever is much widerthan the terms owner or proprietor. The term whoever inSub-section (1) of Section 112 has to be read in properprospective. This Court would not assume that the legislaturecould be indulging in legislative absurdity by asking aservant or agent to obtain licence for his master or theemployer or principal, for servant or agent shall always failin obtaining a licence for lack of authority to do so from hisemployer or principal and fulfilling other requirements forgrant of licence. Moreover, if Section 111 is read in thiscontext with Section 112 as well as with the provisions ofSection 17 of the Prevention of Food Adulteration Act alongwith similar other provisions coupled with absence of anyprovision excepting Section 111 in Delhi Police Act, make itevident that even a servant or agent in charge andresponsible for doing business in a place of publicentertainment, could not be prosecuted for offence underSection 112 of the Act ordinarily.” (Para 6)

Important Issue Involved: A servant or agent in chargeand responsible for doing business in a place of publicentertainment, could not prosecuted for offence underSection 112 of the Delhi Police Act, 1978.

[Ta Si]

APPEARANCES:

FOR THE PETITIONER : Mr. Ganesh Kumar, Advocates.

FOR THE RESPONDENT : Ms. Jasbir Kaur, App for State SIGyam Prakash PS Connaught Place.

CASES REFERRED TO:

1. Avnish Sharma vs. State, Crl. M.C. 1034/2005.

2. S.A.S Pahwa vs. State, 2000(3) CC Cases HC 323.

RESULT: Allowed.

MANMOHAN, J : (ORAL)

1. Present petition has been filed under Section 482 Cr. P.C. seekingquashing of DD No. 57B dated 7th January, 2011 under Section 28/112of Delhi Police Act, 1978 (for short ‘Act’).

2. The relevant facts of the present case are that the petitionerwhose prosecution is sought to be initiated under Sections 28/112 of theAct was working only as a manager of Indian Coffee House, MohanSingh Palace Branch, Connaught Place, New Delhi. It is pertinent tomention that Indian Coffee House, Mohan Singh Palace Branch, ConnaughtPlace is run under the aegis of Indian Coffee Workers Cooperative Societyhaving its Head Office at 38, Banglow Road, Delhi-07.

3. The allegation against the petitioner is that on 7th January, 2011he failed to produce a licence for running an eating house and accordingly,a Kalandara under Sections 28 and 112 of the Act was lodged againsthim.

4. Learned counsel for the petitioner states that the police officialshave registered the aforesaid case against the petitioner despite knowingthat the petitioner was working only in the capacity of a manager and itwas well established law that ordinarily a servant or agent or in-chargeof a place of the public entertainment could not be prosecuted underSection 112 of the Act.

5. This Court in S.A.S Pahwa Vs. State, 2000(3) CC Cases HC

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323 has held as under:

“8. In relation to offence under Section 112, it is contended thata servant or agent is not supposed to obtain a licence in ordinarycourse, and it does not appear plausible to say that a servant oran agent would fall within the term “whoever” notwithstandingthe fact that the term “whoever” is much wider than the terms“owner” or “proprietor”. The term “whoever” in Sub-section (1)of Section 112 has to be read in proper perspective. This Courtwould not assume that the legislature could be indulging inlegislative absurdity by asking a servant or agent to obtain licencefor his master or the employer or principal, for servant or agentshall always in obtaining a licence for lack of authority to do sofrom his employer or principal and fulfilling other requirementsfor grant of licence......”

6. In Avnish Sharma Vs. State, Crl.M.C. 1034/2005 decided on24th January, 2008 another learned Single Judge of this Court has heldas under:

“4. The principal contention of the Petitioner is that the prosecutionunder Sections 28/112 of the DP Act can be maintained onlyagainst the owner/license holder in respect of the premises inquestion and not an employee of such owner. Reliance has beenplaced in the judgment of this Court in S.A.S. Pahwa v. State88 (2000) DLT 194 where under the similar circumstances theproceedings were quashed.

xxxx xxxx xxxx xxxx

6. This Court in S.A.S. Pahwa held as under: (DLT, Pg.198). Inrelation to offence under Section 112, it is contended that aservant or agent is not supposed to obtain a licence in ordinarycourse, and it does not appear plausible to say that a servant oran agent would fall within the term whoever notwithstanding thefact that the term whoever is much wider than the terms owneror proprietor. The term whoever in Sub-section (1) of Section112 has to be read in proper prospective. This Court would notassume that the legislature could be indulging in legislative

absurdity by asking a servant or agent to obtain licence for hismaster or the employer or principal, for servant or agent shallalways fail in obtaining a licence for lack of authority to do sofrom his employer or principal and fulfilling other requirementsfor grant of licence. Moreover, if Section 111 is read in thiscontext with Section 112 as well as with the provisions of Section17 of the Prevention of Food Adulteration Act along with similarother provisions coupled with absence of any provision exceptingSection 111 in Delhi Police Act, make it evident that even aservant or agent in charge and responsible for doing business ina place of public entertainment, could not be prosecuted foroffence under Section 112 of the Act ordinarily.”

7. Having heard the parties and having perused the paper book ittranspires that the petitioner was only a manager and he was neitherowner nor proprietor of the premises in question. Consequently, keepingin view the aforesaid law, DD No. 57B dated 7th November, 2011 underSections 28 and 112 of the Act as well as any other proceedings arisingtherefrom against the petitioner are quashed.

8. Accordingly, the petition and applications are disposed of.

Order dasti.

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163 164 Shree Rishabh Vihar Coop. House Build Society. Ltd. v. Salil Richariya (Vipin Sanghi, J.)

ILR (2012) 6 DELHI 163W.P.

SHREE RISHABH VIHAR ….PETITIONERCOOPERATIVE HOUSEBUILDING SOCIETY LTD.

VERSUS

SALIL RICHARIY A & ORS. ….RESPONDENT

(SANJAY KISHAN KAUL & VIPIN SANGHI, JJ.)

W.P. (C) NO. : 10508/2009 DATE OF DECISION: 08.08.2012

Delhi Cooperative Societies Act, 1972—Section, 55,59(1) and 80—Delhi Cooperative Societies Rules, 1973—Rules 24(2)—Competition Act, 2002—Section 26 (1)—On various complaints being made to Registrar ofCooperative Societies (RCS), enquiry ordered undersection 55 of Act—EO made his report pointing outvarious irregularities in affairs of petitioner society—On basis of aforesaid enquiry report, Registrarconstituted another enquiry under section 59 of Act—EO gave report that Respondent No. 4 usurped powerof duly elected Managing Committee and fabricatedand forged records—Against first enquiry report undersection 55 of Act and against second enquiry reportunder Section 59(1) of Act, Respondent No. 4 preferredtwo revision petitions under sections 80 of Act—Financial Commissioner (FC) allowed revision petitionsholding that enquiry report prepared under Sections55 of Act was vitiated on account of breach of principlesof natural justice—Since enquiry report under section55 of Act was set aside, which is precursor to initiationof proceedings under Sections 59(1) of Act, same toowas set aside—Order challenged before High Court—Held—At stage of enquiry under Section 55 (1) of Act,

there is no need for EO to issue notice to any specificindividual or office bearer of cooperative society asit is general and preliminary enquiry—It is only whenRegistrar decides to proceed against a particularindividual, member of office bearer or person entrustedwith organization or management of society undersection 59 that a notice would be required to beissued to that person—Pertinently, conduct of enquiryunder Section 55(1) of Act and preparation of reportthereunder by itself does not result in any civil orcriminal consequence or fall out for any reason—Evenif enquiry report prepared under sections 55 (1) of Actwere to suggest wrong doing by a particular personor officer of a society, Registrar may or may not acceptreport and may or may not proceed further underSection 59 of Act—Principles of natural justice do notapply to enquiry conducted under Section 55 of Act—FC had no competence to make observations onmerits of case. Since he was dealing with revisionpetition under Section 80 of Act, primarily on groundthat report under Section 55 of Act was prepared inbreach of principles of natural justice—Impugned orderpassed by FC quashed and petition allowed.

When an enquiry under Section 55 of the Act is held, itcould result in a variety of situations. The enquiry officermay find everything in order in respect of the cooperativesociety in his report, in which case the Registrar may decideto accept the report and put the matter to rest. TheRegistrar may, in spite of a clear report, still decide toproceed in the matter under Section 59(1) for good reasons.It could be that after the report is made, the Registrar primafacie feels that one or more officers, or members of thecooperative society, or persons entrusted with theorganization or management of the society have indulged inconduct referred to in Section 59(1) of the Act. It is in suchcases that the Registrar would proceed further to order an

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enquiry under Section 59(1) of the Act. Of course, theenquiry under Section 59(1) of the Act could be initiated onaccount of the apparent discovery of defalcation, ormisappropriation, or willful negligence during the course ofan audit, inspection or winding up of a cooperative societyas well. (Para 20)

Important Issue Involved: (A) At the stage of an enquiryunder Section 55(1) of the Delhi Cooperative Act, 1972,there s no need for the enquiry officer to issue notice to anyspecific individual or office bearer of the cooperative society,as it is a general and preliminary enquiry. It is only whenthe Registrar decides to proceed against a particular individual,member or office bearer or person entrusted with theorganization or management of the society under Section59, that a notice would be required to be issued to thatperson.

(B) Financial Commissioner has no competence to makeobservations on the merits of the case, when he is dealingwith a revision petition under Section 80 of the DelhiCooperative Societies Act, 1972 primarily on the groundthat the report under section 55 of the Act was prepared inbreach of the principles of natural justice.

[Ar Bh]

APPEARANCES:

FOR THE PETITIONER : Mr. Ankur Arora, Advocates.

FOR THE RESPONDENT : Mr. Anil Amrit, Adv. For R-1 Mr.K.C. Mittal, Mr. Sanjay Kumar andMs. Anjali Nehra, Advs. For R-2.Mr. Sanjeev Sachdeva, Sr. Adv. WithMr. Pranav Mishra, Mr. B.K. Pandeyand Ms. Priyam Mehta, Adv. For R-3 Mr. V.K. Tandon, Adv. For R-5.

CASES REFERRED TO:

1. Competition Commission of India vs. Steel Authority ofIndia Ltd. & Anr., (2010) 10 SCC 744.

2. A. Bhattacharya vs. Registrar of Co-operative Societies& Ors., W.P(C) No.5160/1999.

3. Manohar Lal Jain vs. The Registrar Cooperative Societies& Ors., W.P.(C.) No.5003/1993.

4. Azienda Colori Nazionali (ACNA) S.P.A. vs. Commissionof the European Communities: (1972) ECR 0933.

RESULT: Allowed.

VIPIN SANGHI, J.

1. The petitioner society assails the order dated 14.11.2008 passedby the learned Financial Commissioner in Case Nos.81/2006-CA and 260/2006-CA being revision proceedings under Section 80 of the DelhiCooperative Societies Act, 1972 (the Act), preferred by late Sh. KushiramJain, original respondent no.4 in the present proceedings to assail theenquiry reports dated 18.01.2006 (prepared under Section 55 of the Act)and the enquiry report dated 02.08.2006 (prepared under Section 59(1)of the Act).

2. By the impugned order, the said revision petitions have beenallowed by the Financial Commissioner by holding that the enquiry reportprepared under Section 55 of the Act was vitiated on account of breachof the principles of natural justice. Since the enquiry report under Section55 of the Act has been set aside, which is a precursor to initiation ofproceedings under Section 59(1) of the Act, the same too has been setaside.

3. We may, at the outset, notice a few background facts in whichthe present petition has come to be filed. The petitioner society, afterallotment of plots to all its members, was left with three additionalunallotted residential plots, as there were three vacancies of members inthe society. While the original respondent no.4, Sh. Kushiram Jain wasthe Hony. Secretary of the petitioner society, undisputedly, anadvertisement was issued in the English newspaper on 20.06.2001 inviting

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was placed before the managing committee and respondent no.4 acted asthe whole and sole in charge of the affairs of the petitioner society.

7. We may also note that, according to the petitioner, the newlyenrolled members were required to pay for the plots allotted to them @Rs.120 per sq. mtr. in the year 2001-02, which was the rate at whichthe original members had been allotted plots in the 1970s. According tothe petitioner, the prevailing rate of plots during the year 2001-02, as perthe Land and Building Department, was Rs.2500/- per sq. mtr. and themarket values of these plots were running into crores.

8. According to the petitioner even the paltry amounts were neverreceived by the petitioner society. The petitioners state that the electionsto the managing committee of the society were held on 17.03.2002,when Sh. Kushiram Jain respondent No.4 ceased to hold the position ofthe Hony. Secretary. Despite this being the position, respondent no.4continued to hold himself out as the Hony. Secretary of the society andgot the sub-lease deeds executed in respect of these allottees, i.e. respondentnos.1 to 3, of the three allotted plots in the office of the Sub Registraron 05.04.2002. According to the petitioner, in spite of vacating the officeof the Hony. Secretary, respondent no.4 continued to hold the recordsof the society which led to police complaints being made against him inMay, August, October and November 2002. Only after an order beingpassed by the SDM, Gandhi Nagar directing the SHO, Anand Vihar tosearch all the official records of the petitioner society, the record wasseized from respondent no.4 on 27.04.2003 and handed over to thepetitioner vide seizure memo dated 27.04.2003. According to the petitioner,this record was also not complete.

9. The petitioner submits that on various complaints being made tothe Registrar of Cooperative Societies (RCS), he ordered the conduct anenquiry under Section 55 of the Act. The enquiry officer Mr. T.O.Thomas, after examining the records of the society, made his reportdated 18.01.2006 pointing out various irregularities in the affairs of thepetitioner society.

10. During the said enquiry proceedings, the enquiry officer madea spot visit to the society. The records/documents made available by thesociety were verified in the society’s office. Respondent no.4, Sh.

application to fill up the membership of the society. The interested personswere required to apply latest by 22.06.2001, i.e. within two days of theissuance of the advertisement. The allegation of the petitioner societythat the said advertisement was issued by respondent no.4 on his ownappears to have been established. The said advertisement is revealing, notonly of what it concealed, but of the modus operandi adopted for invitingthe applications for membership and is, therefore, reproduced hereinbelow:

“MISCELLANEOUS

Applications are invited by a Delhi bas Coop. Housing Societyfor its vacant membership latest by 22/3/2001. Box 9405-CA,Hindustan Times, New Delhi-110001.”

4. From the aforesaid, it would be seen that there was no disclosureof the name of the petitioner society; no disclosure about the nature ofthe society i.e. whether it is a house building society (which entitlesmembers to allotment of residential plots), or a group housing society(which entitles its members to allotment of built up flats); the numberof vacancies; the location of the society; the names of the office bearersof the society, the size of the plot/flats available, and; its contact details.

5. The interested persons were expected to respond latest by22.03.2001 i.e. within two days by posting their applications at a BoxNo. provided by the advertiser Hindustan Times. The respondent nos.1to 3 are claimed to have responded to the said advertisement (apart froma few others) and within a space of ten days from the date of issuanceof the said advertisement, they were shown to have been enrolled asmembers on 28.06.2001, and entries in their respect were made in themembership register which, according to the petitioner, allegedly was onaccount of forgery and fudging of the records of the society by respondentno.4. As to how they were chosen over others (allegedly there wereseven appellants) who allegedly applied, is not known. The procedure ofconducting the draw of lots, as prescribed by Rule 24(2) of the DelhiCo-operative Societies Rules, 1973 was not adopted.

6. According to the petitioner, neither prior to issuance of theadvertisement nor at the time of enrollment of these members, the matter

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Kushiram Jain, ex-secretary also submitted a statement and copies ofletters sent by him to the RCS alongwith photocopies of correspondenceexchanged between him, the office of the RCS and the society. The saidcorrespondence was annexed with the enquiry report as Enclosure-3.

11. The enquiry officer made his report dated 18.01.2006 pointingout the various irregularities which appeared to have taken place in theprocess of enrollment of three members, to whom allotment of the threevacant plots was made, i.e. respondent nos.1 to 3.

12. Consequently, on the basis of the aforesaid enquiry report dated18.01.2006, the Registrar constituted another enquiry- this time underSection 59 of the Act, for which purpose Mr. N.J. Thomas, UnderSecretary, Ministry of Home Affairs was appointed as the enquiry officer.Respondent no.4 was served with summons dated 14.03.2006 in thisenquiry, a copy whereof has been placed on record at page 67. A copyof the enquiry report prepared by Sh. N.J.Thomas, enquiry officer hasbeen placed on record. A perusal of the same shows that respondentno.4 actively participated in this enquiry and was ably assisted by advocatesas well. Respondent no.4 in these proceedings was termed as the defendant.The procedure adopted in the said enquiry under Section 59 of the Act,as recorded in the enquiry report itself, inter alia, reads:

“3. ..... ..... .....Accordingly, a notice was issued to the Defendantas well as to the President/Secretary of the Rishabh JainCooprative House Building Society Ltd. (hereinafter called “theSociety”) on 14.03.06 directing them to present their cases beforeme on 25.03.06 at 9.30 A.M. The Defendant submitted anapplication dated 18.03.06 stating that he was not in receipt ofthe Inquiry Report submitted by Shri T.O. Thomas and, therefore,requested that a copy of the same may be made available to himto enable him to take appropriate action. He also submitted thathe was not afforded any opportunity to present his case in theInquiry conducted by Shri T.O. Thomas under Rule 55 of theDCS Act, 1972 and that the Inquiry Report of Shri T.O. Thomaswas delivered in violation of the principles of natural justice. He,however, mentioned that on getting to know about the inquiry,he, on his own, submitted a representation to Shri T.O. Thomas

explaining the facts relating to the complaint ... ... ....

4. In the hearing of the case on 25.03.2006, the Society wasrepresented by Shri R.K. Jain, Shri D.K. Jain, Shri S.C. Jain andShri Atul Jain. They submitted written replies dated 24.03.2006and 25.03.06 explaining the case of the Society. On the requestof the Defendant, the representatives of the Society were directedto provide him the copies of the Society’s written statementsdated 24.03.06 and 25.03.06 along with copies of all documentscontained therein, to which the representatives of the Societyagreed. The Defendant agreed to accept these documents fromthe representatives of the Society directly in order to save timein delivery of the same through mail.

5. xx xx xx xx xx xx xx xx xx

6. xx xx xx xx xx xx x x x x x x

7. xx xx xx xx xx xx xx xx xx

8. xx xx xx xx xx xx xx xx xx

9. It appeared that the Defendant was avoiding submission of hiswritten defence on the findings by Shri T.O.Thomas and createdobstacles in the smooth and speedy conduct of the present enquiryin spite of all opportunities afforded to him. It further appearedthat the purpose of sending various communications to me bythe Defendant was to buy time to challenge the findings of ShriT.O.Thomas before the Financial Commissioner, NCT of Delhi,the appellate authority and that in spite of every effort made bythe Society representatives to provide the Defendant the copiesof the documents he was unwilling to receive them......

xx xx xx xx xx xx xx xx xx xx

10. xx xx xx xx xx xx xx xx xx”

13. After discussing the case set up by the petitioner society as alsothe defence set up by respondent no.4, in detail, the enquiry officeranalysed the chronology of events and the evidence. The observationsmade in this enquiry report are revealing, and read as follows:

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Society. It transpires that the composition of the new ManagingCommittee elected on 17.02.02 did not go well with the Defendant,in spite of the fact that the elections were notified by him underhis own signature. It further transpires that the election of26.02.02 were challenged by the Defendant as well as otherbefore the Registrar of Cooperative Societies, besides therefusal of the Defendant to hand over charge of the recordof the society to the new Managing Committee obviouslyfor the reason that the Defendant found himself to be anordinary member of the MC, devoid of any power, as a newSecretary was elected in the meeting of the new ManagingCommittee held on 02.04.02. He still tried to usurp the powersof the duly appointed Secretary claiming that the ManagingCommittee elected on 17.03.02 was illegal.

(vi) Notwithstanding the formation of the new ManagingCommittee, the Defendant continued to function as Secretaryof the Society and presented himself before the Registrar ofCooperative Societies as well as before the DDA in thatcapacity. ..... ..... ..... .....

(vii) In any case, the Defendant is seen to have committedfraud on the Society in the matter of allotment of threeplots (i.e. plots 12, 46 and 99) forming part of the landallotted and developed by the Society in as much as (a) thedecision to advertise in the newspapers inviting applicationswas done by the Defendant on his own without approvalfrom the Managing Committee and after fabricating minutesof the Managing Committee meetings to give legal sanctityto his action. (b) the advertisement was made in a hushhush manner without giving the general public enough timeto respond and without giving the full particulars of theSociety inviting the applications and the number of vacanciesavailable (had the advertisement explained that the Societyin question was a house building society having plots insteadof flats, it would have been likely that more applicationswould have been received); (c) the applicants were enrolledas members of the Society on 28.06.01, i.e. within eight

“(iv) All evidence adduced during the course of enquirypointed out the fact that the Defendant came to singlehandedly manage the affairs of the Society during the period1998-2002, as he did not brook any opposition and opinionsfrom the other office bearers and members of the ManagingCommittee. The alleged autocratic and highhanded naturecoupled with abusive and aggressive behavior on the part of theDefendant ensured to keep the other office bearers and membersof the Managing Committee away from attending the meetings ofthe Committee in the initial period, leading to a single man showby the Defendant, while the MC remained a passive body. Heeven discharged the functions of the Treasurer and also tookover the responsibility of control of funds, which are normallyotherwise discharged by the Transfer through the office staff.In order to satisfy the legal requirements contained in theDSC Act, 1972 and the DCS Rules, 1973 and to prevent anyadverse notice and interference by the Office of the Registrarof Cooperative Societies, the Defendant apparently fabricatedrecords relating to meetings on the MC, etc. This is evidentfrom the form, language and content of the minutes of theMC allegedly held on 11.05.2001, 28.06.2001 and 31.7.2001and the variation in the signatures of the other memberswith their actual signatures.

.... ..... ......

(v) .... ..... ..... The actions taken by the Defendant duringthe period 18.06.2001 to 16.03.2002 in the matter ofenrollment of new members, allotment of plots, executionof perpetual sub lease deeds at the back of the ManagingCommittee clearly lead to the conclusion that thepostponement of the election was at the instance of theDefendant to enable him complete the legal enrollment ofthe three new members and to facilitate allotment of plotsto them with the approval of the Office of the Registrar ofthe Cooperative Societies and the DDA. This was definitelya hush-hush affair perpetrated by the Defendant at theback of the Managing Committee/General Body of the

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days of placing the advertisement and six days from thedate of closure of applications, after fabricating minutes ofthe meeting of the Managing Committee which were neverheld; (d) the applicants were requested to pay cost of land@ Rs.120/- per sq. meter only which was the rate prevalentat the time of initial allotment of plots to its originalmembers in the 1970, and was much below the DDA approvedland rates in 2002. (e) in order to compensate for the costescalation over time and to match the rise in land cost, theSociety could have charged a higher land rate from theapplicants to equalize the cost of land, giving financial gainto the Society. All these facts give evidence to the possibilitythat the whole exercise was a farce and there was a tacitarrangement between the Defendant and the applicants todefraud the Society of funds which would have accrued tothe Society, had higher rates been demanded from them.The possibility of illegal gratifications having obtained bythe Defendant in this exercise also cannot be ruled outconsidering the manner in which he manipulated theenrollment of the three applicants as new members andallotment of the plots to them in a hurry, before the newManaging Committee was elected”. (Emphasis supplied)

14. The findings returned in this enquiry by the enquiry officerreads as follows:

“(i) That the Defendant allotted plots bearing no.12, 46 and99 belonging to the Rishab Jain House Building Society andlocated within the area of Rishab Vihar to S/Shri SallilRichharya, Vir ender Jain and Sanjay Tiwari without authorityand by usurping the power of the duly elected ManagingCommittee. He fabricated and forged records relating to theproceedings of the Managing Committee to satisfy the Officeof Registrar of Cooperative Societies in clearing the namesof these new members and recommending their names tothe DDA for allotment of plots.

(ii) That the Defendant acted against the interests of the

Society in as much as he demanded from the new allotteesof the three plots in question land cost at a very discountedrate much below the land cost at the DDA approved ratesprevailing in 2003, thereby defrauding the society of funds.

(iii) That the Defendant violated the provisions of the bye-laws 24 to 35 of the Society while managing the affairs ofthe Society during his tenure as the Secretary of the Society.

(iv) The Managing Committee elected in 1998 also wasblameworthy in as much as its failure to discharge its duties andfailure to rein in the Defendant created the situation congenial forhim to usurp the powers and duties of the Managing Committeeand act against the interests of the Society”. (Emphasis supplied)

15. It is against the first enquiry report under Section 55 of the Actdated 18.01.2006, and the second enquiry report under Section 59(1) ofthe Act dated 02.08.2006 that the respondent no.4 preferred two revisionpetitions under Section 80 of the Act before the Financial Commissioner,which, as aforesaid, have been allowed.

16. The above extract from the enquiry report prepared by Mr. N.J.Thomas, Under Secretary, Ministry of Home Affairs dated 02.08.2006,makes it abundantly clear that respondent no.4 was served with thesummons; he was absolutely clear about the purpose and scope of thesaid enquiry-as it was premised on the earlier enquiry report dated18.01.2006 made by Mr. T.O.Thomas under Section 55 of the Act;respondent no.4 participated wholeheartedly in the enquiry proceedingsbefore Mr. N.J. Thomas and was represented through able counsel. Healso filed his detailed replies and was granted a hearing by the enquiryofficer; the enquiry officer considered the defence of respondent no.4and, only thereafter, he prepared the report under Section 59(1) dated02.08.2006 setting out not only the procedure adopted by him, but alsothe facts and evidence marshalled by him and the conclusion drawn byhim.

17. So far as the enquiry under Section 59(1) is concerned, therepossibly could not have been any grievance raised with regard to respondentno.4 not being noticed; not being granted sufficient opportunity of

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representation, and; not being heard before the preparation of the enquiryreport dated 02.08.2006. Even a perusal of the impugned order showsthat the same proceeds on the premise that the respondent no.4 was notissued a notice during the conduct of the enquiry proceedings underSection 55 of the Act by the enquiry officer Mr. T.O.Thomas. Since theenquiry report prepared by Mr. T.O. Thomas is stated to be the basis ofthe further enquiry conducted under Section 59(1) of the Act, the financialcommissioner has set aside the subsequent enquiry under Section 59(1)of the Act on the ground that the first enquiry was not conducted inaccordance with the principles of natural justice.

18. Section 55 of the Act reads as follows:

“55. Inquiry by Registrar

(1) The Registrar may of his own motion or on the applicationof the majority of the committee or of not less than one-third ofthe members, hold an inquiry or direct some person authorizedby him or by order in writing in this behalf to hold an inquiryinto the constitution, working and financial condition of acooperative society.

(2) The Registrar or the person authorized by him under sub-section (1) shall have the following powers, namely:-

(a) he shall at all times have, for purpose of examinationfree access to the books, accounts, cash and otherproperties belonging to or in the custody of the societyand may summon any person in possession or responsiblefor the custody of any such books, accounts, documents,securities cash or other properties to produce the same atany place specified by him;

(b) he may, notwithstanding any rule or bye-law specifyingthe period of notice for a general meeting of the society,require the officers of the society to call a general meetingat such time and place at the headquarters of the societyto consider such matter as may be directed by him; andwhere the officer of the society refuse or fail to call sucha meeting he shall have power to call it himself;

(c) he may summon any person who is reasonably believedby him to have any knowledge of the affairs of the societyto appear before him at any place at the headquarters ofthe society or any branch thereof and may examine suchperson on oath.

(3) xxx xxx xxx xxx .

(4) The Registrar shall communicate a brief summary of thereport of the inquiry to the society, the financing institution, ifany, to which the society is affiliated and to the person orauthority, if any, at whose instance the inquiry is made.”

19. The enquiry conducted under Section 55 of the Act is for thepurpose of enquiring into “the constitution, working and financial conditionor a cooperative society”. A plain reading of Section 55(1) shows thatthe enquiry thereunder is not directed against any particular individual.The purpose of this enquiry is not to fasten the guilt or any liability onany particular individual for any wrong doings in the society. It is ageneral enquiry, inter alia, into the working and financial condition of acooperative society. For conduct of the said enquiry, the enquiry officeri.e. the Registrar or the person authorized by him, is empowered to haveaccess to and look into the books, accounts, cash and other propertiesbelonging to or in the custody of the society. The enquiry officer maysummon any person, to produce the same before him. He may alsosummon any person who is reasonably believed by him to have anyknowledge of the affairs of the society, to appear before him and toexamine such person on oath. It is, therefore, clear that the enquiryunder Section 55 of the Act is in the nature of a preliminary investigationor enquiry. It is inquisitorial in nature. It is not a quasi-judicial exerciseaimed at determining the rights or liabilities of any particular or specificperson. The purpose appears to be only to collect facts and materialswhich may, in future, become the foundation of an enquiry under Sections59(1) and (2).

20. When an enquiry under Section 55 of the Act is held, it couldresult in a variety of situations. The enquiry officer may find everythingin order in respect of the cooperative society in his report, in which casethe Registrar may decide to accept the report and put the matter to rest.

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The Registrar may, in spite of a clear report, still decide to proceed inthe matter under Section 59(1) for good reasons. It could be that afterthe report is made, the Registrar prima facie feels that one or moreofficers, or members of the cooperative society, or persons entrustedwith the organization or management of the society have indulged inconduct referred to in Section 59(1) of the Act. It is in such cases thatthe Registrar would proceed further to order an enquiry under Section59(1) of the Act. Of course, the enquiry under Section 59(1) of the Actcould be initiated on account of the apparent discovery of defalcation, ormisappropriation, or willful negligence during the course of an audit,inspection or winding up of a cooperative society as well.

21. The Supreme Court in Competition Commission of India v.Steel Authority of India Ltd. & Anr., (2010) 10 SCC 744 dealt witha similar situation arising under the Competition Act. Section 26 of theCompetition Act, insofar as it is relevant, reads as follows:

“26. Procedure for inquiry under section 19. - (1) On receipt ofa reference from the Central Government or a State Governmentor a statutory authority or on its own knowledge or informationreceived under section 19, if the Commission is of the opinionthat there exists a prima facie case, it shall direct the DirectorGeneral to cause an investigation to be made into the matter”.

22. The issue raised before the Supreme Court was whether theparties, including the informant or the affected party are entitled to noticeor hearing as a matter of right at the preliminary stage of formulating anopinion as to the existence of a prima facie case, and whether it wasobligatory for the commission to record the reasons for formation of aprima facie opinion in terms of Section 26(1) of the Competition Act.

23. The Supreme Court while discussing the scope of Section 26of the Competition Act held as follows:

“86. We may also notice that the scope of duty cast uponthe authority or a body and the nature of the function to beperformed cannot be rendered nugatory by imposition ofunnecessary directions or impediments which are notpostulated in the plain language of the section itself. ‘Natural

justice’ is a term, which may have different connotation anddimension depending upon the facts of the case, while keepingin view, the provisions of the law applicable. It is not a codifiedconcept, but are well defined principles enunciated by the Courts.Every quasi-judicial order would require the concerned authorityto act in conformity with these principles as well as ensure thatthe indicated legislative object is achieved. Exercise of powershould be fair and free of arbitrariness.

87. Now, let us examine what kind of function theCommission is called upon to discharge while forming anopinion under Section 26(1) of the Act. At the face of it,this is an inquisitorial and regulatory power. A ConstitutionBench of this Court in the case of Krishna Swami v. Unionof India: (1992) 4 SCC 605 explained the expression‘inquisitorial’. The Court held that the investigating powergranted to the administrative agencies normally isinquisitorial in nature. The scope of such investigation hasto be examined with reference to the statutory powers. Inthat case the Court found that the proceedings, before theHigh Power Judicial Committee constituted, were neithercivil nor criminal but sui generis.

88. Referring to the investigation under criminal jurisprudence aswell as scope of inquiry under service jurisprudence, the Courtheld as under: (Krishna Swami case (Supra), SCC P 646, Para61)

61. The problem could be broached through a differentperspective as well. In normal parlance, in a criminalcase, investigation connotes discovery and collection ofevidence before charge-sheet is filed and based thereondefinite charges are framed. Inquiry by a Magistrate isstopped when the trial begins. The trial is a culminatingprocess to convict or acquit an accused. In ServiceJurisprudence, departmental inquiry against a delinquentemployee, bears similar insignia to impose penalty. At theinvestigation stage the accused or the charged officerhas no say in the matter nor is he entitled to any

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opportunity. The disciplinary authority or inquiryofficer, if appointed, on finding that the evidencediscloses prima facie ground to proceed against thedelinquent officer, the inquiry would be conducted.The criminal court frames charges after supplying therecord of investigation relied on. Equally, the disciplinaryauthority/inquiry officer would frame definite charge orcharges and would communicate the same together witha statement of the facts in support thereof sought to berelied on and would call upon the delinquent officer tosubmit his explanation or written statement of defenceetc. At the trial/inquiry the person is entitled to reasonableopportunity to defend himself”.

89. The exceptions to the doctrine of audi alteram partem are notunknown either to civil or criminal jurisprudence in our countrywhere under the Code of Civil Procedure ex-parte injunctionorders can be passed by the court of competent jurisdictionwhile the courts exercising criminal jurisdiction can takecognizance of an offence in absence of the accused and issuesummons for his appearance. Not only this, the Courts evenrecord pre-charge evidence in complaint cases in absence of theaccused under the provisions of the Code of Criminal Procedure.Similar approach is adopted under different systems in differentcountries.

90. Reference in this regard can be made to the case of AziendaColori Nazionali (ACNA) S.P.A. v. Commission of theEuropean Communities: (1972) ECR 0933, where the argumentwas raised that the Commission had infringed the administrativeprocedure laid down in Regulation No. 17/62 of the EuropeanCouncil Regulation. In that case the Commission of the EuropeanCommunities sent the notice of the objections to the applicant atthe time of informing the applicant about the decision to initiateprocedure to establish infringement of rules on competition. TheEuropean Court of Justice while holding that sending notificationof the above mentioned decision simultaneously with the noticeof objections cannot affect the rights of the defence, stated as

under:

“10. Neither the provisions in force nor the generalprinciples of law require notice of the Decision to initiatethe procedure to establish an infringement to be givenprior to notification of the objections adopted against theinterested parties in the context of such proceedings.

11. It is the notice of objections alone and not the Decisionto commence proceedings which is the measure statingthe final attitude of the Commission concerningundertakings against which proceedings for infringementof the rules on competition have been commenced”.

91. The jurisdiction of the Commission, to act under thisprovision, does not contemplate any adjudicatory function.The Commission is not expected to give notice to the parties,i.e. the informant or the affected parties and hear them atlength, before forming its opinion. The function is of a verypreliminary nature and in fact, in common parlance, it is adepartmental function. At that stage, it does not condemnany person and therefore, application of audi alteram partemis not called for. Formation of a prima facie opiniondepartmentally (the Director General, being appointed bythe Central Government to assist the Commission, is oneof the wings of the Commission itself) does not amount toan adjudicatory function but is merely of administrativenature. At best, it can direct the investigation to be conductedand report to be submitted to the Commission itself or closethe case in terms of Section 26(2) of the Act, which orderitself is appealable before the Tribunal and only after thisstage, there is a specific right of notice and hearing availableto the aggrieved/affected party. Thus, keeping in mind thenature of the functions required to be performed by theCommission in terms of Section 26(1), we are of theconsidered view that the right of notice of hearing is notcontemplated under the provisions of Section 26(1) of theAct”. (emphasis supplied).

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24. The conclusion drawn by the Supreme Court in answer to theaforesaid queries were as follows:

“(2) Neither any statutory duty is cast on the Commission toissue notice or grant hearing, nor can any party claim, as amatter of right, notice and/or hearing at the stage of formationof opinion by the Commission, in terms of Section 26(1) of theAct that a prima facie case exists for issuance of a direction tothe Director General to cause an investigation to be made intothe matter.

However, the Commission, being a statutory body exercising,inter alia, regulatory jurisdiction, even at that stage, in its discretionand in appropriate cases may call upon the concerned party(s)to render required assistance or produce requisite information, asper its directive. The Commission is expected to form suchprima facie view without entering upon any adjudicatory ordeterminative process. The Commission is entitled to form itsopinion without any assistance from any quarter or even withassistance of experts or others. The Commission has the powerin terms of Regulation 17(2) of the Regulations to invite not onlythe information provider but even ‘such other person’ whichwould include all persons, even the affected parties, as it maydeem necessary. In that event it shall be ‘preliminary conference’,for whose conduct of business the Commission is entitled toevolve its own procedure”.

“(5) In consonance with the settled principles of administrativejurisprudence, the Commission is expected to record at leastsome reason even while forming a prima facie view. However,while passing directions and orders dealing with the rights of theparties in its adjudicatory and determinative capacity, it is requiredof the Commission to pass speaking orders, upon due applicationof mind, responding to all the contentions raised before it by therival parties”.

25. Section 55 and 59 of the Act fall in Chapter VII, which dealswith “audit, enquiry, inspection and sur charge”. 26. Before we proceedfurther, it would be useful to set out Section 59 of the Act. The same

reads as follows:

“59. Surcharge.

(1) If in the course of an audit, inquiry, inspection or the windingup of a co-operative society, it is found that any person who isor with entrusted with the organization or management of suchsociety or who is or has at any time been an officer or anemployee of the society had made any payment contrary to thisAct, the rules or the bye-laws or has caused any deficiency inthe assets of the society by breach of trust or willful negligenceor has misappropriated or retained any money or other propertybelonging to such society the Registrar may, of his own motionor on the application of the committee, liquidator or any creditor,inquire himself or direct any person authorized by him, by anorder in writing in his behalf, to inquire into the conduct of suchperson:

Provided that no such inquiry shall be held after the expiry ofsix years from the date of any act or omission referred to in thissub-section.

(2) Where an inquiry is made under sub-section (1) the Registrarmay, after giving the person concerned an opportunity of beingheard, make an order, requiring him to repay or restore themoney or property or any part thereof with interest at such rate,or to pay contribution and cost or compensation to such extent,as the Registrar may consider just and equitable”.

27. Section 59(1) provides that even if, in the course of an audit,enquiry, inspection or winding up of a cooperative society, any person,who is entrusted with the organization or management of a cooperativesociety, or who is or has been at anytime, any officer or an employeeof the society, is found to have defalcated or misappropriated the fundsand assets of the society due to breach of trust, or willful negligence, ormisappropriation, or fraudulent retention, the Registrar may enquire himselfor direct any person authorized by him, to enquire into the conduct ofsuch person either suo moto, or on the application of the managingcommittee of the society, the liquidator or any creditor of the society.

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may not proceed further under Section 59 of the Act.

31. In the present case, admittedly, respondent no.4 voluntarilyparticipated in the enquiry conducted under Section 55 of the Act by theenquiry officer. He submitted a statement, documents andcorrespondences before the enquiry officer. It appears from the enquiryreport prepared under Section 55 of the Act that he made his submissionsbefore the enquiry officer, whereafter the enquiry report was made.Therefore, even though, there was no requirement in law to grant anyopportunity or hearing to any particular officer or person, while conductingan enquiry under Section 55 of the Act, the enquiry officer looked intothe records of the society, including the documents produced by respondentno.4. In any event, therefore, there was ample compliance with theprinciples of natural justice, even if it were to be assumed for the sakeof argument, that the enquiry officer was obliged to follow the saidprinciples while conducting the enquiry.

32. For the aforesaid reasons, the impugned order, insofar as itholds that the enquiry conducted under Section 55 of the Act was inbreach of the principles of natural justice certainly cannot be sustained.We hold that the enquiry conducted under Section 55 of the Act was nothit by breach of principles of natural justice, as the said principles did notapply to such an enquiry. Consequently, the impugned order, insofar itset aside the enquiry reports prepared under Section 55 and Section 59of the Act, is quashed.

33. We also find that the learned Financial Commissioner hasproceeded to make observations on the facts/merits of the case, whichwas the subject matter of the enquiry under Section 59(1) of the Act.The learned Financial Commissioner has sought to pick holes in the caseof the petitioners society by placing reliance on the managing committeeresolutions relied upon by respondent no.4. The fact that the laconicadvertisement, as aforesaid, was issued by respondent no.4 of his ownaccord, giving only two days to respond thereto, and that the three freshmembers were inducted into the society within about ten days of theissuance of the advertisement has completely been overlooked by theFinancial Commissioner, as also the fact that not a farthing was depositedinto the accounts of the society for allotment of the said plots. The

28. The opening words of Section 59(1), i.e. “If in the course ofan audit, enquiry, inspection or winding up of a cooperative society, itis found .... .... ....”, clearly suggest that the audit, enquiry or inspection-which is a precursor to the launch of an enquiry under Section 59(1) ofthe Act, was not directed against any particular person. Rather it wasduring such audit, enquiry, inspection or winding up process in respectof a cooperative society, that the involvement of a person in a wrongdoinggets exposed. When Section 59 is read in juxtaposition with Section 55,it becomes clear that they together form a scheme.

29. The purpose of enactment of Section 59(1) of the Act is toempower the Registrar to order a more focused and specific inquiry intothe role played by the person, whose conduct appears to be doubtful onthe basis of, inter alia, the inquiry or inspection conducted in respect ofa cooperative society. Furthermore, an inquiry report under Section 59(1)is also of a preliminary nature, and not final and binding. [See order dated15.01.2010 of a Division Bench of this Court in A. Bhattacharya V.Registrar of Co-operative Societies & Ors., W.P(C) No.5160/1999].Section 59(2) provides that where an inquiry is ordered under Section59(1) of the Act, the concerned person against whom the inquiry islaunched, is given an opportunity of being heard before requiring thatperson to repay or restore the money or property, with interest, to thesociety or to compensate the society as the Registrar may consider justand equitable.

30. We are, therefore, of the view that at the stage of an enquiryunder Section 55(1) of the Act, there is no need for the enquiry officerto issue notice to any specific individual or office bearer of the cooperativesociety, as it is a general and preliminary enquiry. It is only when theRegistrar decides to proceed against a particular individual, member oroffice bearer or person entrusted with the organization or managementof the society under Section 59, that a notice would be required to beissued to that person. Pertinently, the conduct of the enquiry underSection 55(1) of the Act, and the preparation of the report thereunder byitself does not result in any civil or criminal consequence or fall out forany person. Even if the enquiry report prepared under Section 55(1) ofthe Act were to suggest wrongdoing by a particular person or officer ofa society, the Registrar may or may not accept the report, and may or

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conduct of respondent no.4 in continuing to act on behalf of the societydespite his relinquishing the office of Hon. Secretary and in that capacityexecuting the registered deeds in favour of the three newly registeredmembers has also been overlooked. The stand of the petitioner that theself serving resolutions were fabricated by respondent no.4, who wascontrolling and managing the record of the society has also not beenadequately dealt with, even though it had come on record that the societiesrecords were retained by respondent no.4 despite his vacating the officeof the Hon. Secretary and that the records had to be retrieved throughpolice aid.

34. In our view, the Financial Commissioner had no competence tomake observations on the merits of the case, since he was dealing witha revision petition under Section 80 of the Act, primarily on the groundthat the report under Section 55 of the Act was prepared in breach ofthe principles of natural justice.

35. The decision of a Division Bench of this Court in Manohar LalJain v. The Registrar Cooperative Societies & Ors., W.P.(C.) No.5003/1993 decided on 20.07.2009 relied upon by the respondents, in our view,is of no avail. That was a case dealing with an enquiry under Section 59of the Act and not one under Section 55 of the Act. As we have alreadyobserved above, there can be no quarrel with the proposition that in theconduct of an enquiry under Section 59 of the Act, the person/officerconcerned is bound to be put to notice by the enquiry officer.

36. For the aforesaid reasons, we allow the present petition andquash the impugned order passed by the Financial Commissioner dated14.11.2008 passed in Case No.81/2006 and Case No.260/2006.

37. Parties are left to bear their respective costs.

ILR (2012) 6 DELHI 186CS (OS)

SUSHIL JAIN ….PLAINTIFF

VERSUS

MEHARBAN SINGH & ORS. ….DEFENDANTS

(VALMIKI J. MEHT A, J.)

CS (OS) NO : 1735/1997 DATE OF DECISION: 08.08.2012

Specific Relief Act, 1963—Section 12—Plaintiff filedsuit for specific performance qua receipt-cum-agreement of plot in Pritampura, Delhi—As per plaintiff,suit property was owned by brothers i.e. defendantno. 1 & 2—Defendant no. 1 entered into receipt-cum-agreement with plaintiff and agreed to sell not onlyhis half portion of property, but also half portionbelonging to defendant no. 2—Defendant no. 1 hadassured to obtain consent of defendant no. 2 for saleof property—However, defendant no. 1 failed to fulfillterms of agreement and plaintiff preferred suit allegingdefendants committed breach of contract and refusedto sell suit property—On other hand, defendant no. 1pleaded that plaintiff was guilty of breach of contractas he failed to arrange money for balance saleconsideration—Moreover, agreement to sell stoodfrustrated because defendant no. 2 did not agree tosell his portion to plaintiff. Held—Specific performancecan be granted of a part of the contract in terms ofsub-sections (2) to (4) of Section 12, if plaintiff give uphis claim with respect to that portion of the agreementto sell which cannot be performed.

As already stated above, the plaintiff has not given up hisclaim for specific performance with respect to the half

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portion belonging to the defendant no.2 and on the contraryis claiming the sale of the entire property in his favour. Sinceadmittedly there is no agreement of defendant no.2 with theplaintiff, and the plaintiff seeks specific performance of theagreement to sell as a whole; Section 12(1) is a completebar to the grant of the relief of specific performance.

(Para 9)

Important Issue Involved: Specific performance can begranted of a part of the contract in terms of sub—Sections(2) to (4) of Section 12, if plaintiff gives up his claim withrespect to that portion of the agreement to sell which cannotbe performed.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFF : Mr. R.S. Tomar, Adv.

FOR THE DEFENDANTS : Mr. J.P. Sengh,, Sr. Adv. with Mr.Ankit Jain, Mr. Sumeet Batra & Ms.Ankita Gupta, Advs, for D-1. Mr.Rohit Gandhi, Adv. for D-2.

CASES REFERRED TO:

1. Ramrameshwari Devi and Others vs. Nirmala Devi andOthers, (2011) 8 SCC 249.

2. Saradamani Kandappan vs. Mrs. S. Rajalakshmi, 2011(12) SCC 18.

3. Laxmi Devi vs. Mahavir Singh being RFA No. 556/2011.

4. Swaran Singh vs. State of Punjab (2000) 5 SCC 668.

5. Shri Jinesh Kumar Jain vs. Smt. Iris Paintal & Ors.being CS(OS) No.1154/1989.

RESULT: Suit dismissed.

VALMIKI J. MEHTA, J. (ORAL)

1. This suit for specific performance has been filed with respect toproperty being Plot No. QP-57, Maurya Enclave, Pitampura, Delhi-34measuring approximately 150 sq.yds. The plot is built upon and it has atwo and a half storey structure on the same.

2. The plaintiff admits that the suit property belongs to the twobrothers-defendants no. 1 and 2. It is pleaded that the defendant no.1entered into a receipt-cum-agreement with the plaintiff on 21.11.1995(Ex.P1/Ex.PW1/1) whereby the defendant no.1 was said to have agreedto sell not only his half portion, but also the half portion belonging to thedefendant no.2. It is the case of the pla intiff that the defendant no.1agreed to get the consent of defendant no.2 to sell his other half portionto the plaintiff. Total sale consideration was fixed at Rs.29 lacs and ofwhich the plaintiff paid the defendant no.1 a sum of Rs. 1,00,000/- on21.11.1995. The plaintiff is said to have made a further payment ofRs.2,50,000/- on 26.11.1995 when another receipt-cum-agreement (Ex.P2/Ex.PW1/2) was signed, again only between plaintiff and defendant no.1.The plaintiff thereafter states that the parties entered into another agreementdated 31.1.1996 (Ex.P3/Ex.PW1/3) and in which time for payment wasextended to 9.2.1996 and the defendant no. 1 once again undertook toget the defendant no.2 to agree for executing the sale documents qua hishalf share in favour of the plaintiff. The plaintiff has pleaded that thedefendants committed breach of contract and refused to sell the suitproperty. Plaintiff also alleges breach of contract on the part of thedefendant no.1 in not getting the permission from the defendant no.2 tosell the half portion belonging to the defendant no.2 to the plaintiff. Theplaint thereafter makes reference to a legal notice dated 29.01.1996 callingupon the defendants to obtain sale permission, Income Tax Returns,NOC, etc from the competent authority. The plaint also makes referenceto a suit filed by the defendant no.2 against the plaintiff whereby thedefendant no.2 had prayed that he should not be forced to sell his halfportion to the plaintiff inasmuch as there is no agreement with the plaintiff.I need not dwell much on this aspect inasmuch as admittedly there is noagreement to sell entered into by the defendant no.2 with the plaintiff.The above referred suit filed by the defendant no.2 is admitted by theparties to be adjourned sine die awaiting the decision of the present suit.

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The subject suit for specific performance came to be filed as the plaintiffpleaded that the defendants have refused to perform their part ofperformance of selling the suit property to the plaintiff.

3. Written statements have been filed by defendant no.1 and alsodefendants no. 2 and 3 i.e. one is the written statement of defendant no.1and second is the written statement of defendants no. 2 and 3 jointly.Defendant no.3 who is the father of defendant no.2 was neither a necessarynor a proper party. He has expired during the pendency of the suit andhe is now represented by the defendants no. 1 and 2 who are the sons.

4. The defendant no.1 in the written statement did not disputeentering into the receipt-cum-agreements on 21.11.1995 and 26.11.1995and the receipt of the sum of Rs. 3,50,000/-, however, entering into ofthe agreement dated 31.1.1996 was disputed as having been signed onaccount of coercion in the Police Station. It is pleaded that within 3 daysafter the agreement dated 31.1.1996 was entered into in the Police Stationon account of force and coercion, a suit was filed by the defendant no.2that the agreement dated 31.1.1996 is not binding upon the defendantno.2. The defendant no.1 in his written statement has alleged that it wasthe plaintiff who was guilty of breach of contract. Though he said thathe was agreeable to sell his portion, however, it was simultaneouslypleaded that the plaintiff was guilty of breach of contract because he hadfailed to arrange the monies for balance sale consideration. Dismissal ofthe suit was also sought on the ground that the plaintiff is not entitledto the discretionary relief of specific performance. It is also pleaded inthe written statement of defendant no.1 that the agreement to sell stoodfrustrated because the defendant no.2 did not agree to sell his portion tothe plaintiff. The defendant no.1 has also denied that the defendants hadassured the plaintiff that they would complete the formalities and informthe plaintiff of the date and time of the execution of the necessarydocuments. It was pleaded that the agreement to sell/undertaking dated31.1.1996 was procured under coercion and threat and is hence illegaland void. The defendant no.1 thus prayed for dismissal of the suit. 5. Inthe written statement filed by the defendant no.2, alongwith the defendantno.3, the defence is that there was never any agreement with the defendantno.2 to sell his half portion of the suit property to the plaintiff, andtherefore, the plaintiff is not entitled to decree with respect to specific

performance of the agreements to sell dated 21.11.1995, 26.11.1995 and31.1.1996. In the written statement the defendants no. 2 and 3 have alsotaken their stand that defendant no.1 was not authorized to enter intoagreements with respect to half portion of the defendant no.2 with theplaintiff.

6. Issues in this suit were framed on 31.8.2005 and they read asunder:-

“1. Whether the plaintiff is entitled for specific performanceof agreement to sell dated November 21, 1995, November26, 1995 and November 31, 1996? OPP

2. Whether the suit has been properly valued for the purposeof court fee and jurisdiction ? OPP

3. Whether the plaintiff has always been ready and willing toperform his part of agreement? OPP

4. Whether the agreement to sell and undertaking datedJanuary 31, 1996 were obtained from defendant no. 1 andhis father, defendant no. 3 by force, coercion and undueinfluence by the plaintiff ? If so, to what effect? OPD

5. Whether the suit is bad for mis-joinder of parties? OPD

6. Relief.”

7. So far as the issue no. 2 is concerned, the defendants did notoppose this issue and therefore issue is decided in favour of the plaintiff.

Issues No.1, 3, 4 & 5

8. Issue nos. 1, 3, 4 and 5 can be dealt with together and areaccordingly being disposed of together. The first aspect will be as towhether the plaintiff is entitled to specific performance of the agreementsdated 21.11.1995, 26.11.1995 and 31.1.1996. Included in this aspect willbe the issue no. 4 as to whether the agreement to sell/undertaking dated31.1.1996 was obtained from the defendant no.1 and defendant no.3 byforce, coercion and undue influence. Within the discussion on this subjectit will also have to be decided as to who is guilty of breach of contractassuming that there existed all the three agreements.

9. So far as the agreements to sell dated 21.11.1995 and 26.11.1995

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are concerned, there is no dispute that they were entered into. However,it is also undisputed that the defendant no.2 is not a signatory to any ofthese agreements with respect to his half ownership share in the suitproperty. Therefore, obviously there cannot be granted to the plaintiffspecific performance of the agreement to sell with respect to half portionof the defendant no.2. In fact, no specific performance of even the halfportion belonging to the defendant no.1 can be granted to the plaintiffinasmuch as admittedly in the suit the plaintiff seeks specific performancewith respect to the entire property and not only the half portion of thedefendant no.1. As per the provision of Section 12(1) of the SpecificReliefs Act, 1963, a Court cannot grant specific performance of a partof the contract. Specific performance can be granted of a part of thecontract in terms of the sub-Sections (2) to (4) of Section 12 if theplaintiff gives up his claim with respect to that portion of the agreementto sell which cannot be performed. As already stated above, the plaintiffhas not given up his claim for specific performance with respect to thehalf portion belonging to the defendant no.2 and on the contrary isclaiming the sale of the entire property in his favour. Since admittedlythere is no agreement of defendant no.2 with the plaintiff, and the plaintiffseeks specific performance of the agreement to sell as a whole; Section12(1) is a complete bar to the grant of the relief of specific performance.Therefore, the suit has necessarily to fail on this ground itself.

10. Now let me take up the position that the suit is not liable to failbecause of Section 12(1) of the Specific Reliefs Act, 1963. I have nowto see whether it is the plaintiff who is guilty of breach of contract orit is the defendant no.1 who is guilty of breach of contract. When welook at the two so-called receipt-cum-agreements to sell dated 21.11.1995and 26.11.1995, these documents are basically two paragraph documentsand they do not contain any terms with respect to any obligation uponthe defendant no.1. All that these receipts basically provide for is therecording of giving of the amounts of Rs. 1,00,000/- and Rs. 2,50,000/- respectively and of forfeiture on behalf of the seller/defendant no.1 incase the plaintiff/buyer fails to give balance consideration and for theplaintiff/buyer to receive double the bayana amount in case of seller/defendant no.1 fails to sell the suit property. So far as the agreementdated 31.1.1996 is concerned; though the defendant no.1 has set up a

case and led evidence and has also put suggestions in the cross-examinationto the witnesses of the plaintiff that the agreement dated 31.1.1996 hasbeen entered into on account of fraud and coercion; considering thebalance of probabilities, I would take that the agreement dated 31.1.1996was in fact executed by the defendant no.1. This agreement containedtwo important terms. The first was the undertaking on behalf of thedefendant no.1 to get the defendant no.2 to sell the portion of the defendantno.2 to the plaintiff, and, the second term was that the time for paymentwas extended upto 9.2.1996. I have already dwelt upon above that thedefendant no.2 never agreed to sell his share, and surely, even if thedefendant no.1 gave such an undertaking, it was the plaintiff’s look outas to why he took such an undertaking from the defendant no.1, knowingvery well that the defendant no. 1 need not have necessarily persuadedthe defendant no.2 to sell his half portion of the property to the plaintiff.As already concluded above, the fact that the plaintiff still pursues for asale deed with respect to the entire property, shows that the suit has tonecessarily fail because once the defendant no.1 failed to persuade thedefendant no.2 to sell the property, there could not be specific performanceof the agreement as a whole.

So far as the second aspect of the breach of contract on the partof the plaintiff on account of having failed to arrange the monies forpayment of the balance sale consideration by 9.2.1996, this is an issueI will take up with the issue of readiness and willingness on the part ofthe plaintiff, the subject matter of issue no.3 as dealt with immediatelyhereinafter.

11. Section 16(c) of the Specific Reliefs Act, 1963 requires everyplaintiff in a suit for specific performance to aver and prove readinessand willingness to perform his part of the contract. Readiness meansexistence of financial capacity and willingness means intention to goahead with the transaction. Admittedly, there is not a single document onrecord which shows the financial capacity of the plaintiff right fromNovember, 1995 till the filing of the suit and even thereafter till thepresent stage of final arguments. Plaintiff has not filed any bank accountstatement to show that he had monies with him during the entire periodfrom November, 1995; January, 1996; and thereafter till date. Plaintiffhas also not filed his Income Tax Returns. Plaintiff has also not filed any

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document whatsoever to show that he had the financial capacity duringthis period to make payment of the balance consideration. Of course aperson may not have ready liquid funds, however surely he must showhis financial capacity that he has necessary assets or other wherewithalto make payment of balance consideration An important point to be notedis that plaintiff has led no evidence as to his station in life, his education,his business, his status etc etc. What the plaintiff is and what he doesis therefore a mystery. As already stated above nothing whatsoever hasbeen filed on behalf of the plaintiff with respect to his financial capacityand therefore I hold that it is the plaintiff who committed breach ofcontract inasmuch as he did not have monies to make payment of balancesale consideration by 9.2.1996, the extended date as per the agreementdated 31.1.1996. In fact I must at this stage also observe that from thefact that the date of payment was extended to 9.2.1996 under the agreementdated 31.1.1996 is also an indication that the plaintiff did not have withhim funds till 31.1.1996 to make the payment of the balance saleconsideration of Rs.25,50,000/-. The plaintiff also is therefore held notto be ready and willing to perform his part of the contract. Since therequirement of Section 16(c) has not been satisfied, I hold issue no. 3in favour of the defendants and against the plaintiff and hold that theplaintiff was not ready and willing to perform his part of contract andtherefore he is not entitled to the relief of specific performance.

12. I have recently had an occasion to consider the issue of readinessand willingness in facts which are very similar to the facts of the presentcase, in the case of Shri Jinesh Kumar Jain vs. Smt. Iris Paintal &Ors. being CS(OS) No.1154/1989 decided on 10.7.2012. Paras 10, 11and 12 of this judgment are relevant and they read as under:-

“10. On the aspect as to who is guilty of breach of contract, onething is clear that the agreement to sell does provide for thenecessary permissions to be obtained by the defendants. Thedefendants have not proved on record that they ever applied tothe Income Tax Authority or appropriate authority under the1972 Act for permission to transfer the land. Of course, I havealready stated above that the appropriate authority under the1972 Act would never have given permission because there is anabsolute bar under Section 3 of the Act where the land has

already been acquired, however, so far as the permission of theIncome Tax Authority is concerned, I do not find any documentplaced on record whereby the defendants have applied forpermission. In my opinion, however, this is not the end of thematter because the defendant no.1 sent a notice dated 2.12.1988(Ex.P2), and in which notice there is an allegation against theplaintiff of having committed breach of contract in not completingthe transaction within 45 days as provided under the agreementto sell. Reference in this notice, Ex.P2 therefore is clearly to thelack of availability of finances with the plaintiff for completingthe transaction of sale. Though this aspect will also be dealt withby me while dealing with the issue of readiness and willingness,it is clear in the facts of the present case, that the plaintiff is alsoguilty of breach of contract inasmuch as the plaintiff has notfiled even a single document of any substance whatsoever of hishaving financial capacity from 26.9.1988 to the period of 45days after entering into agreement to sell, and thereafter till filingof the suit. No doubt, plaintiff may want to say that he was liableto have the moneys ready only after the defendants had obtainedthe necessary permissions, however, one cannot overlook thefact that considering the period of performance to be a shortperiod of 45 days, the plaintiff cannot presume that thepermissions will not be applied for; nor obtained, and therefore,he need not be ready to perform his part of the bargain byhaving the balance sale consideration of Rs.44,00,000/- in the 45days period. I do not think that it is open for the plaintiff to urgethat he need not have established on record his financial capacityduring this period of 45 days after entering into the agreementto sell. I must hasten to add that where no period of performanceis provided for or where there is a very long period to enable theproposed buyer for completion of his obligations the positionpossibly may have been different than in this case where theperiod is only of 45 days. I therefore hold that both the partieswere guilty of breach of their respective obligations to beperformed under the agreement dated 26.9.1988.

11. Now on to the related crucial issue no.4 framed on 11.4.1991

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with respect to readiness and willingness on the part of theplaintiff to perform his obligation under the agreement to sell. Itake up this issue for disposal. Section 16(c) of the SpecificRelief Act, 1963 requires that the plaintiff in a suit for specificperformance must aver and prove that he has always been readyand willing and continues to be ready and willing to perform hispart of the contract. The Courts have interpreted the expression“readiness” under Section 16(c) to mean capacity to perform i.e.financial capacity of a purchaser to pay the balance consideration.Willingness is the intention to go ahead with the agreement tosell.

12. The undisputed position which emerges on record is that theplaintiff has miserably failed to prove his readiness and willingnessi.e. his financial capacity with respect to making available thebalance sale consideration of Rs. 44,00,000/-. No Income TaxReturns of the plaintiff have been filed for any of the yearsincluding post the filing of the suit. The plaintiff has similarlyfailed to file his bank accounts to show availability with him ofamounts to pay balance consideration of Rs.44,00,000/-. Theplaintiff has in fact not even filed details of his assets in anyform to show his financial capacity to pay the balanceconsideration of ‘44,00,000/-. In my opinion, merely stating inlegal notices or replies that the plaintiff is ready to perform hispart of the contract is neither here nor there inasmuch as theissue of readiness is a crucial aspect which requires that byclear-cut evidence, which can be believed by the Court, theplaintiff proves his financial capacity. The plaintiff has whollyfailed to do so in the present case. I therefore hold that theplaintiff has totally failed to prove the financial capacity to paythe balance consideration and, hence it cannot be said that theplaintiff was and continued to be ready and willing to performhis part of the obligation under the agreement to sell at all pointsof time i.e. for the period of 45 days after entering into theagreement to sell, after the period of 45 days till the filing of thesuit, and even thereafter when evidence was led. I therefore holdthat the plaintiff has failed to comply with the requirement of

Section 16(c) of the Specific Relief Act, 1963, and therefore, theplaintiff is not entitled to the relief of specific performance.”(underlining added)

13. I therefore hold that the plaintiff is not entitled to discretionaryrelief and is guilty of breach of contract and he was not ready and willingto perform his part of contract and therefore, the suit is liable to bedismissed on this ground alone.

14. This finding takes me to the aspect whether the plaintiff isentitled to the discretionary relief of specific performance, and which isone of the aspects under issue no.1. Before dealing with this aspect, Iwould again seek to refer to certain paragraphs in the case of ShriJinesh Kumar Jain (supra) which have dealt with this aspect extensively.The relevant paras in that judgment are paras 13 to 18 of the saidjudgment and which read as under:-

“13. Now let us assume that the agreement to sell dated 26.9.1988was not hit by the 1972 Act; the defendants were guilty ofbreach of their obligation to perform their part of contract; andthat the plaintiff was ready and willing to perform his part; eventhen, can it be said that the plaintiff is yet entitled to thediscretionary relief of specific performance. It will be appropriateat this stage to refer to Section 20 of the Specific Relief Act,1963, and more particularly sub-Section 3 thereof. Section 20reads as under:-

20. Discretion as to decreeing specific performance.-

(1) The jurisdiction to decree specific performance isdiscretionary, and the court is not bound to grant suchrelief merely because it is lawful to do so; but the discretionof the court is not arbitrary but sound and reasonable,guided by judicial principles and capably of correction bya court of appeal.

(2) The following are cases in which the court mayproperly exercise discretion not to decree specificperformance:-

(a) where the terms of the contract or the conduct of

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the parties at the time of entering into the contract or theother circumstances under which the contract wasentered into are such that the contract, though notvoidable, gives the plaintiff an unfair advantage over thedefendant; or

(b) where the performance of the contract would involvesome hardship on the defendant which he did not foresee,whereas its non-performance would involve no suchhardship on the plaintiff; or

(C) where the defendant entered into the contract undercircumstances which though not rendering the contractvoidable, makes it inequitable to enforce specificperformance.

(3) The court may properly exercise discretion to decreespecific performance in any case where the plaintiff hasdone substantial acts or suffered losses in consequence ofa contract capable of specific performance.

(4) The court shall not refuse to any party specificperformance of a contract merely on the ground that thecontract is not enforceable at the instance of the party.”

14. Sub-Section 3 makes it clear that Courts decree specificperformance where the plaintiff has done substantial acts inconsequence of a contract/agreement to sell. Substantial actsobviously would mean and include payment of substantial amountsof money. Plaintiff may have paid 50% or more of theconsideration or having paid a lesser consideration he could bein possession pursuant to the agreement to sell or otherwise isin the possession of the subject property or other substantial actshave been performed by the plaintiff, and acts which can be saidto be substantial acts under Section 20(3). However, where theacts are not substantial i.e. merely 5% or 10% etc of theconsideration is paid i.e. less than substantial consideration ispaid, (and for which a rough benchmark can be taken as 50%of the consideration), and/or plaintiff is not in possession of thesubject land, I do not think that the plaintiff is entitled to the

discretionary relief of specific performance.

15. The Supreme Court in the recent judgment of SaradamaniKandappan vs. Mrs. S. Rajalakshmi, 2011 (12) SCC 18 hashad an occasion to consider the aspect of payment of a nominaladvance price by the plaintiff and its effect on the discretion ofthe Court in granting the discretionary relief of specificperformance. Though in the facts of the case before the SupremeCourt, it was the buyer who was found guilty of breach ofcontract, however, in my opinion, the observations of the SupremeCourt in the said case are relevant not only because I have foundin this case the plaintiff/ buyer guilty of breach of contract, butalso because even assuming the plaintiff/buyer is not guilty ofbreach of contract, yet, Section 20 sub-Section 3 of the SpecificRelief Act, 1963 as reproduced above clearly requires substantialacts on behalf of the plaintiff/proposed purchaser i.e. payment ofsubstantial consideration. Paras 37 and 43 of the judgment in thecase of Saradamani Kandappan (supra) are relevant and theyread as under:

“37. The reality arising from this economic change cannotcontinue to be ignored in deciding cases relating to specificperformance. The steep increase in prices is acircumstance which makes it inequitable to grant the reliefof specific performance where the purchaser does nottake steps to complete the sale within the agreed period,and the vendor has not been responsible for any delay ornon-performance. A purchaser can no longer take shelterunder the principle that time is not of essence inperformance of contracts relating to immovable property,to cover his delays, laches, breaches and “non-readiness”.The precedents from an era, when high inflation wasunknown, holding that time is not of the essence of thecontract in regard to immovable properties, may no longerapply, not because the principle laid down therein isunsound or erroneous, but the circumstances that existedwhen the said principle was evolved, no longer exist. Inthese days of galloping increases in prices of immovable

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properties, to hold that a vendor who took an earnestmoney of say about 10% of the sale price and agreed forthree months or four months as the period forperformance, did not intend that time should be theessence, will be a cruel joke on him, and will result ininjustice. Adding to the misery is the delay in disposalof cases relating to specific performance, as suits andappeals therefrom routinely take two to three decadesto attain finality. As a result, an owner agreeing tosell a property for rupees one lakh and received rupeesten thousand as advance may be required to executea sale deed a quarter century later by receiving theremaining rupees ninety thousand, when the propertyvalue has risen to a crore of rupees.

xxxxxx xxxxxxx xxxxxxx

43. Till the issue is considered in an appropriate case, wecan only reiterate what has been suggested in K.S.Vidyanandam.

(i) The courts, while exercising discretion in suits forspecific performance, should bear in mind that when theparties prescribe a time/period, for taking certain steps orfor completion of the transaction, that must have somesignificance and therefore time/period prescribed cannotbe ignored.

(ii) The courts will apply greater scrutiny and strictnesswhen considering whether the purchaser was “readyand willing” to perform his part of the contract.

(iii) Every suit for specific performance need not be decreedmerely because it is filed within the period of limitation byignoring the time-limits stipulated in the agreement. Thecourts will also “frown” upon suits which are not filedimmediately after the breach/refusal. The fact that limitationis three years does not mean that a purchaser can wait for1 or 2 years to file a suit and obtain specific performance.The three-year period is intended to assist the purchasers

in special cases, as for example, where the major part ofthe consideration has been paid to the vendor andpossession has been delivered in part-performance, whereequity shifts in favour of the purchaser.”

(emphasis is mine)

16. A reading of the aforesaid paras shows that Courts have abounden duty to take notice of galloping prices. Surely it cannotbe disputed that the balance of convenience i.e. equity in thepresent case is more in favour of the defendants who have onlyreceived 10% of the consideration. If the hammer has to fall inthe facts of the present case, in my opinion, it should fall moreon the plaintiff than on the defendants inasmuch as today thedefendants cannot on receiving of the balance consideration ofRs.4,00,000/-, and even if exorbitant rate of interest is receivedthereon, purchase any equivalent property for this amount.Correspondingly, the plaintiff has had benefit of 90% of saleconsideration remaining with him (assuming he has any) andwhich he could have utilized for purchase of assets including animmovable property. In specific performance suits a buyer neednot have ready cash all the time and his financial capacity has tobe seen and thus plaintiff can be said to have taken benefit of the90% balance with him. It is well to be remembered at this stagethat in a way that part of Specific Relief Act dealing with specificperformance is in the nature of exception to Section 73 of theContract Act, 1872 i.e. the normal rule with respect to the breachof a contract under Section 73 of the Contract Act, 1872 is ofdamages, and, the Specific Relief Act, 1963 only provides thealternative discretionary remedy that instead of damages, thecontract in fact should be specifically enforced. Thus for breachof contract the remedy of damages is always there and it is notthat the buyer is remediless. However, for getting specific relief,the Specific Relief Act, 1963 while providing for provisions ofspecific performance of the agreement (i.e. performance insteadof damages) for breach, requires discretion to be exercised bythe Court as to whether specific performance should or shouldnot be granted in the facts of each case or that the plaintiff

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should be held entitled to the ordinary relief of damages orcompensation.

17. I have recently in the case titled as Laxmi Devi vs. MahavirSingh being RFA No. 556/2011 decided on 1.5.2012 declinedspecific performance, one of the ground being payment of onlynominal consideration under the agreement to sell. Para 11 of thesaid judgment reads as under:-

“11. Besides the fact that respondent/plaintiff was guiltyof breach of contract and was not ready and willing toperform his part of the contract lacking in financial capacityto pay the balance consideration, in my opinion, the factsof the present case also disentitle the respondent/plaintiffto the discretionary relief of specific performance. Thereare two reasons for declining the discretionary relief ofspecific performance. The first reason is that the SupremeCourt has now on repeated occasions held that unlesssubstantial consideration is paid out of the total amount ofconsideration, the Courts would lean against granting thespecific performance inasmuch as by the loss of time, thebalance sale consideration which is granted at a muchlater date, is not sufficient to enable the proposed seller tobuy an equivalent property which could have been boughtfrom the balance sale consideration if the same was paidon the due date. In the present case, out of the total saleconsideration of Rs.5,60,000/-, only a sum of Rs.1 lakhhas been paid i.e. the sale consideration which is paid isonly around 17% or so. In my opinion, by mere paymentof 17% of the sale consideration, it cannot be said that therespondent/plaintiff has made out a case for grant ofdiscretionary relief or specific performance...............”

18. Therefore, whether we look from the point of view of Section20 sub-Section 3 of the Specific Relief Act, 1963 or the ratio ofthe judgment of the Supreme Court in the case of SaradamaniKandappan (supra) or even on first principle with respect toequity because 10% of the sale consideration alongwith the interestwill not result in the defendants even remotely being able to

purchase an equivalent property than the suit property specificperformance cannot be granted. In fact, on a rough estimation,the property prices would have galloped to at least between 30to 50 times from 1988 till date. I take judicial notice of this thatin the capital of our country, like in all other megapolis, onaccount of the increase in population and rapid urbanization,there is a phenomenal increase in the prices of urban immovableproperty.” (underlining added)

15. The facts of the case of Shri Jinesh Kumar Jain (supra) arestrikingly similar not only with respect to the breach of contract and thelack of readiness and willingness when compared with the facts of thepresent case, but they are also strikingly similar with respect todisentitlement of the plaintiff to the discretionary relief for specificperformance. The plaintiff in this present case has only paid a sum ofRs.3,50,000/- out of Rs.29 lacs i.e. roughly about 13% of the saleconsideration. Admittedly the plaintiff is not in possession of the suitproperty. The agreements to sell in this case are of the year 1995/96 i.e.about 17 years earlier. As per the ratio in the case of Shri JineshKumar Jain (supra), the plaintiff cannot be held entitled to thediscretionary relief of specific performance inter alia for the reasons thatnot only the prices would have gone up about 20 to 30 times during thisperiod but also that the plaintiff has taken benefit of the balance of about87% of the consideration (assuming he had any) with him and whichobviously if he had, he would have wisely invested in any other assetsincluding in an immovable property. Since I have already extensivelydealt with this aspect in the case of Shri Jinesh Kumar Jain (supra),I adopt the ratio of the said case and which will apply with respect tothe facts of the present case also. I therefore hold that the plaintiff is alsonot entitled to the discretionary relief for specific performance. Issue no.1 is therefore decided against the plaintiff including for the reason of thefact that the plaintiff is not entitled to the discretionary relief of specificperformance.

Issue Nos.5 and 3

16. So far as the issue no. 5 is concerned, the same would getdecided under that part of issue no. 1 wherein I have said that the

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defendant no.2 being not a party to the agreements to sell, he is not liableto sell his half portion of the property to the plaintiff, and therefore, thesuit is bad for misjoinder of defendant no.2. So far as the defendant no.3is concerned he had no interest whatsoever in the suit property, and hewas therefore unnecessarily joined. Issue no. 5 is decided accordingly.

17. I may state that in this case after broadly understanding thefacts of the present case I put counsel for both the parties to notice thatI would be awarding actual costs as per the result of the present case.Plaintiff also rejected the offer to take back the amount paid with asubstantially high rate of interest. Imposition of actual costs has becomea prime need in these days in order to send a message to those sectionsof the litigants who speculate in litigations. Not only there are speculativelitigations, and because of such litigations a defendant/seller suffersconsiderably inasmuch as he not only incurs actual expenses towardslitigation including the lawyers, but also there is a cloud created over histitle to the property. The Supreme Court in the recent judgment in thecase of Ramrameshwari Devi and Others v. Nirmala Devi and Others,(2011) 8 SCC 249 has held that it is high time that now actual costsshould be awarded. The relevant paras of the judgment are as under:-

“43. We have carefully examined the written submissions of thelearned Amicus Curiae and learned Counsel for the parties. Weare clearly of the view that unless we ensure that wrongdoersare denied profit or undue benefit from the frivolous litigation, itwould be difficult to control frivolous and uncalled for litigations.In order to curb uncalled for and frivolous litigation, the courtshave to ensure that there is no incentive or motive for uncalledfor litigation. It is a matter of common experience that court’sotherwise scarce and valuable time is consumed or moreappropriately wasted in a large number of uncalled for cases.

47. We have to dispel the common impression that a party byobtaining an injunction based on even false averments and forgeddocuments will tire out the true owner and ultimately the trueowner will have to give up to the wrongdoer his legitimate profit.It is also a matter of common experience that to achieveclandestine objects, false pleas are often taken and forged

documents are filed indiscriminately in our courts because theyhave hardly any apprehension of being prosecuted for perjury bythe courts or even pay heavy costs. In Swaran Singh v. Stateof Punjab (2000) 5 SCC 668 this Court was constrained toobserve that perjury has become a way of life in our courts.

52. The main question which arises for our consideration iswhether the prevailing delay in civil litigation can be curbed? Inour considered opinion the existing system can be drasticallychanged or improved if the following steps are taken by the trialcourts while dealing with the civil trials.

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C. Imposition of actual, realistic or proper costs and orordering prosecution would go a long way in controllingthe tendency of introducing false pleadings and forgedand fabricated documents by the litigants. Imposition ofheavy costs would also control unnecessary adjournmentsby the parties. In appropriate cases the courts may considerordering prosecution otherwise it may not be possible tomaintain purity and sanctity of judicial proceedings.

54. While imposing costs we have to take into considerationpragmatic realities and be realistic what the Defendants or theRespondents had to actually incur in contesting the litigationbefore different courts. We have to also broadly take intoconsideration the prevalent fee structure of the lawyers and othermiscellaneous expenses which have to be incurred towards draftingand filing of the counter affidavit, miscellaneous charges towardstyping, photocopying, court fee etc.

55. The other factor which should not be forgotten while imposingcosts is for how long the Defendants or Respondents werecompelled to contest and defend the litigation in various courts.The Appellants in the instant case have harassed the Respondentsto the hilt for four decades in a totally frivolous and dishonestlitigation in various courts. The Appellants have also wastedjudicial time of the various courts for the last 40 years.

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56. On consideration of totality of the facts and circumstancesof this case, we do not find any infirmity in the well reasonedimpugned order/judgment. These appeals are consequentlydismissed with costs, which we quantify as Rs. 2,00,000/-(Rupees Two Lakhs only). We are imposing the costs not outof anguish but by following the fundamental principle thatwrongdoers should not get benefit out of frivolous litigation.”

(underlining added)

18. Considering the facts of the present case, as also that I havedecided all the issues against the plaintiff, I exercise my discretion underRule 14 of the Delhi High Court (Original Side) Rules, 1967 to exemptthe applicability of rules on the aspect of costs in the present case. Itherefore award actual costs to the defendants no. 1 and 2 at the timeof dismissing of the suit. The defendants are directed to file on affidavitwithin a period of 3 weeks from today of the actual costs incurred bythem for the present litigation including the costs incurred by themtowards payment for their lawyers. The certificates of the lawyers ofhaving actually received the fees must also be attached with the affidavit.Such costs will be the costs awarded against the plaintiff and in favourof the defendants no. 1 and 2 in the present suit. I take on record thestatement made on behalf of the plaintiff in Court today that his residentialaddress has changed and now he is presently residing at KP 85, MauryaEnclave, Pitampura, Delhi.

Relief:-

19. In view of the above suit of the plaintiff for specific performanceis dismissed with actual costs as stated above. Decree sheet be prepared.Suit is dismissed and disposed of accordingly.

ILR (2012) 6 DELHI 206MAC

IFFCO TOKIO GENERAL INSURANCE CO. LTD. ….APPELLANT

VERSUS

BABIT A & ORS. ….RESPONDENTS

(G.P. MITT AL, J.)

MAC APP. : 149/2012 DATE OF DECISION: 14.08.2012

Motor Vehicles Act, 1988—Section 163A and 166—Deceased ‘S’ driving TSR met with accident with aMaruti Car—His legal representatives filed a Petitionunder Section 163A of Act claiming compensation fromowner/insurer of Maruti Car as well as TSR—ClaimsTribunal awarded compensation and opined that sinceboth vehicles were involved in accident, there wouldbe equal liability on insurer of both vehicles—Orderchallenged by insurer of TSR—Plea taken, sincedeceased was himself driving TSR, his legalrepresentatives could not have claimed compensationfrom themselves and from owner (being vicariouslyliable)—Appellant being insurer of TSR had no liability—Claims T ribunal erred in awarding compensation underSection 166 of Act although petition was preferredunder Section 163A of Act—Held—Where driver of avehicle whether a two wheeler, a TSR or any othervehicle meets with accident involving another vehicleand if accident is caused on account of his ownnegligence, he would not be entitled to anycompensation—If accident did not occur on accountof driver/owner's own negligence, he would be entitledto claim compensation from owner/insurer of othervehicle irrespective of fact whether there was any

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default or negligence on part of driver of other vehicleor not—No defence was taken by driver and owner ofMaruti Car or it's insurer that accident was caused onaccount of deceased's own negligence—Claim'sTribunal opinion that there would be equal liability oninsurer of both vehicles is not correct interpretationof Section 163A of Act—Appellant is not liable at all topay compensation—Compensation reduced as it is tobe awarded on basis of structured formula.

Important Issue Involved: Where driver of a vehicle meetswith an accident involving another vehicle and if accident iscaused on account of his own negligence, he would not beentitled to any compensations. If the accident did not occuron account of the driver/owner's own negligence, he wouldbe entitled to claim compensation from the owner/ insurerof the other vehicle in a petition under Section 163A of theMotor Vehicles Act irrespective of the fact whether therewas any default or negligence on the part of the driver ofthe other vehicles or not.

[Ar Bh]

APPEARANCES:

FOR THE APPELLANT : Ms. Suman Bagga, Adv.

FOR THE RESPONDENT : Mr. Pramod Gupta, Adv. For R-4.Mr. Pankaj Seth, Adv. For R-5.

CASES REFERRED TO:

1. Jagdish & Anr. vs. Madhav Raj Mishra and Anr. MACAPP.190/2011.

2. United India Insurance Company Ltd. vs. Ratheesh,MANU/KE/1687/2011.

3. National Insurance Company Limited vs. Sinitha & Ors.,2011 (13) SCALE 84.

4. New India Assurance Co. Ltd. vs. Pitamber & Ors., MAC

APP.304/2009.

5. Pitamber & Ors. vs. Nirdosh Kumar & Anr.. MAC.APP.345/2009.

6. Oriental Insurance Company Limited vs. Meena Variyal(2007) 5 SCC 428.

7. Deepal Girishbhai Soni vs. United India InsuranceCompany Limited, (2004) 5 SCC 385.

RESULT: Allowed.

G.P. MITTAL, J. (ORAL)

1. The Appellant IFFCO Tokio General Insurance Company Limitedimpugns a judgment dated 14.11.2011 passed by the Motor AccidentClaims Tribunal (the Claims Tribunal) whereby a compensation of‘8,32,452/- was awarded in favour of the Respondents No.1 to 3 for thedeath of Surender.

2. It is not in dispute that the accident occurred on 19.10.2007 atabout 9:20 P.M. while TSR No.DL-1RC-7527 was being driven bydeceased Surender. The other vehicle involved in the accident is Maruticar No.DL-4C-AA-2751, which was owned by Vikrant Kapoor,Respondent No.4 herein (the First Respondent before the Claims Tribunal).

3. Since the deceased was driving the TSR, his legal representativesfiled a Petition under Section 163-A of the Act claiming compensationfrom the owner/insurer of the Maruti Car as well as the TSR.

4. The TSR was insured with the Appellant IFFCO Tokio GeneralInsurance Company Ltd. (IFFCO Tokio), whereas the Maruti car wasinsured with National Insurance Company Ltd. (Respondent No.5 herein).

5. It is urged by the learned counsel for the Appellant that since thedeceased was himself driving the TSR, his legal representatives could nothave claimed compensation from themselves and from the owner (beingvicariously liable). Thus, the Appellant being insurer of the TSR had noliability.

6. Section 163-A of the Motor Vehicles Act, 1988 (the Act) enablesthe Claimant to claim compensation without proving any negligence by

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the owner of the vehicle involved in the accident. There is no indicationin the provision as to from which owner/insurer the Claimants wouldclaim compensation, if more than one vehicle is involved in the accident.

7. Section 163-A of the Act talks about liability of payment ofcompensation by the owner of the motor vehicle or the authorized Insurer.Section 163-A is extracted hereunder:-

“Section 163A. Special provisions as to payment ofcompensation on structured formula basis.

(1) Notwithstanding anything contained in this Act or in anyother law for the time being in force or instrument having theforce of law, the owner of the motor vehicle or the authorisedinsurer shall be liable to pay in the case of death or permanentdisablement due to accident arising out of the use of motorvehicle, compensation, as indicated in the Second Schedule, tothe legal heirs or the victim, as the case may be.

Explanation.-For the purposes of this sub-section, “permanentdisability” shall have the same meaning and extent as in theWorkmen’s Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), theclaimant shall not be required to plead or establish that the deathor permanent disablement in respect of which the claim has beenmade was due to any wrongful act or neglect or default of theowner of the vehicle or vehicles concerned or of any otherperson.

(3) The Central Government may, keeping in view the cost ofliving by notification in the Official Gazette, from time to timeamend the Second Schedule.”

8. The use of the term ‘motor vehicle’ or ‘vehicles’ in Section 140as against the use of the terms ‘motor vehicle’ in Section 163-A of theAct is not of much import. Obviously, if there are more than one vehicleinvolved in an accident, the Claimant would be entitled to claimcompensation from either or both the vehicles. I am supported in thisview by a Division Bench Judgment of Kerala High Court in UnitedIndia Insurance Company Ltd. v. Ratheesh, MANU/KE/1687/2011.

9. There may be other situations where more than one vehicle isinvolved in the accident. There may be a pedestrian, a cyclist, a scooteristor a person driving any vehicle. Two or more vehicles may cause anaccident resulting in death or injury with permanent disability to thepedestrian, cyclist, scooterist or the driver of the vehicle. These personscan claim compensation from the owner/authorized insurer of either orboth the vehicles, who are involved in the accident. There may be situationwhere a victim may be travelling as an occupant in one vehicle and thesaid vehicle may be involved in the accident with another vehicle. Herealso, the occupant of one of the vehicles would be entitled to claimcompensation from the owner/owners and authorized insurer/insurers ofone or both the vehicles. Another situation would be where driver of avehicle whether a two wheeler, a TSR or any other motor vehicle meetswith an accident involving another vehicle. If the accident is caused onaccount of his own negligence, he would not be entitled to anycompensation. I am supported in this view by a three Judge Benchdecision of the Supreme Court in National Insurance Company Limitedv. Sinitha & Ors., 2011 (13) SCALE 84. If the accident did not occuron account of the driver/owner’s own negligence, he would be entitledto claim compensation from the owner/insurer of the other vehicleirrespective of the fact whether there was any default or negligence onthe part of the driver of the other vehicle or not.

10. In the instant case, no defence was taken by Respondent No.4,the driver and owner of Maruti Car or its Insurer National InsuranceCompany Ltd. that the accident was caused on account of Surender’sown negligence.

11. Turning to the facts of the instant case, the Claims Tribunalopined that since both the vehicles were involved in the accident, therewould be equal liability on the insurer of both the vehicles, which to mymind, is not the correct interpretation of Section 163-A of the Act.

12. As stated above, the circumstances will differ in each case asto whether the owner/Insurer of one or both the vehicles would be liableto pay the compensation, which in the instant case is payable only by theowner and Insurer of Maruti Car.

13. It is urged by the learned counsel for the Appellant that apartfrom Appellant’s liability the Claims Tribunal erred in awarding

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compensation under Section 166 of the Act although the Petition waspreferred under Section 163-A of the Act. It is urged that the ClaimsTribunal ought to have confined the payment of compensation as per theSecond Schedule to the Act.

14. I find sufficient force in the contention raised.

15. This Court in New India Assurance Co. Ltd. v. Pitamber &Ors., MAC APP.304/2009; Pitamber & Ors. v. Nirdosh Kumar &Anr.. MAC.APP. 345/2009 both decided on 23.01.2012 and Jagdish &Anr. v. Madhav Raj Mishra and Anr. MAC APP.190/2011 decided on19.04.2011; while relying on Deepal Girishbhai Soni v. United IndiaInsurance Company Limited, (2004) 5 SCC 385 and OrientalInsurance Company Limited v. Meena Variyal (2007) 5 SCC 428,held that in a Claim Petition under Section 163-A of the M.V. Act, thecompensation has to be awarded on the basis of the structured formula.

16. The Respondents No.1 to 3 claimed the deceased’s income tobe Rs.3300/-. The compensation on the basis of structured formulacomes to Rs. 4,75,200/- (3300/- x 12 x 2/3 x 18).

17. In addition, the Respondents No.1 to 3 would be entitled to acompensation of Rs.9,500/- i.e. (Rs.2,500/- towards loss to estate,Rs.5,000/- towards loss of consortium and Rs.2,000/- towards funeralexpenses). The overall compensation comes to Rs. 4,84,700/-.

18. The compensation stands reduced from Rs. 8,32,452/- to Rs.4,84,700/-.

19. By order dated 08.02.2012 execution of the award was stayed,subject to deposit of 50% of the award amount along with proportionateinterest. Since, I have held above that the Appellant is not liable at all topay the compensation, the compensation deposited by the Appellant shallbe released to it along with interest accrued, if any, during the pendencyof the Appeal.

20. It is stated by Mr. Pankaj Seth, Advocate that 50% of theaward amount i.e. Rs.4,16,226/- along with proportionate interest hasalready been deposited. Since the compensation awarded stands reduced,the balance amount of Rs.68,474/- along with interest @ 7.5% perannum from the date of filing of the Petition till its payment shall be

deposited with the UCO Bank, Delhi High Court Branch, New Delhiwhich shall be released to the First Respondent on deposit.

21. The Appeal is allowed in above terms.

22. The statutory deposit of Rs.25,000/-, if any, shall be refundedto the Appellant Insurance Company.

23. Pending Applications stand disposed of.

ILR (2012) 6 DELHI 212LPA

RAMESH JAISWAL ….APPELLANT

VERSUS

SEMJEET SINGH BRAR & ORS. ….RESPONDENTS

(BADAR DURRAZ AHMED & SIDDHAR TH MRIDUL, JJ.)

LPA : 134/2011 DATE OF DECISION: 16.8.2012

Constitution of India, 1950—Letters Patent AppealClause 10 Code of Criminal Procedure, 1973—Section340—In a civil proceedings under Sec. 340 against thedefendant—Hon’ble Single Judge dismissed theapplications as not maintainable-Plaintiff filed lettersPatent Appeal—Respondent challenged maintainabilityof LPA—Held, once Sec 340 is invoked, the courtexercises criminal jurisdiction, even if the mainproceedings are civil in nature consequently, an orderpassed on an application under Sec. 340 would be anorder passed in criminal jusridiction—Therefore, withinexceptions to Clause 10 of the Letters therefore appealnot maintainable.

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It is apparent that the power to proceed under Section 340has been given to “any” Court, whether it is ordinarilyexercising civil jurisdiction or criminal jurisdiction as per theroster. However, once Section 340 Cr. P.C is invoked, thenthat court, be it a civil court or criminal court, would beexercising criminal jurisdiction because it is in relation to anoffence referred to under Section 195 (1)(b) Cr. P.C, which,in turn, inter alia, refers to offences punishable underSections 193-196, 199, 200, 205-211 and 228 of the IndianPenal Code when such offences are alleged to have beencommitted in or in relation to any proceeding in any court.Therefore, we are of the view that a proceeding underSection 340 Cr. P.C is clearly a proceeding in exercise ofcriminal jurisdiction of a court. Consequently, an orderpassed on an application under Section 340 Cr. P.C wouldbe an order passed or made in exercise of criminal jurisdictionand would, therefore, fall within the exceptions carved out inClause 10 of the said Letters Patent. As a result, an appealunder the said Letters Patent would not lie. (Para 12)

[Gi Ka]

APPEARANCES:

FOR THE APPELLANT : Mr. J.M. Kalia, Advocates

FOR THE RESPONDENTS : Mr. Sunil Styarthi, Advocates

CASES REFERRED TO:

1. Subir Kumar Ghosh vs. Prasar Bharti BroadcastingCorporation of India: 2006 CRI .L J. 4109.

2. Abdul Karim Haji Zaveri vs. District Magistrate, Junagadhand Others: 2005 CRI. L. J. 1651.

3. P. S. Sathappan vs. Andhra Bank Ltd: AIR 2004 SC5152.

4. Vinita M. Khanolkar vs. Pragna M. Pai: (1998) 1 SCC500.

5. Muniswamy vs. Rajaratnam: AIR 1922 Madras 495 (FB).

6. Pashupati Nath De vs. Murari Mohan: 81 CWN 762.

RESULT: Appeal dismissed.

BADAR DURREZ AHMED, J (ORAL)

1. The question which arises for consideration, at the outset, iswhether this Letters Patent Appeal is maintainable or not. The appeal isdirected against the order dated 10.09.2010 passed by a learned SingleJudge of this Court in Crl. M. A No. 13306/2010, whereby the learnedSingle Judge rejected the application filed by the appellant / plaintiff underSection 340 read with Section 195 (b)(i) of the Code of CriminalProcedure, 1973 for setting the criminal law into motion against therespondent No.1/ defendant No.1 and any other person/ persons forhaving committed the offences referred to in Section 195 (b)(i) Cr. P.C.

2. Some facts would be necessary for us to determine the questionof maintainability of this appeal and they are as follows. The plaintiff hadfiled CS(OS) 809/2010 seeking specific performance of a contract dated26.05.2007 executed by and between the appellant/ plaintiff and thedefendant No.1/ respondent No.1. It is the case of the appellant that therespondent No.1 had filed a written statement wherein he had stated thathe had sold the suit property bearing No. 284, Satya Niketan, Moti Bagh,New Delhi to one Pushpa Mittal by an alleged agreement to sell dated14.02.2008. Reliance had been placed by the said respondent upon ageneral power of attorney allegedly registered by him in favour of thesaid Mrs Pushpa Mittal and one Mr Rahul Mittal vide Book No. IV, Vol.29, Serial No. 201 to 218, Serial No. 435 dated 18.03.2008 registered atthe office of the Sub-Registrar, Bingha, U.P. It was contended on behalfof the appellant / plaintiff that upon an enquiry from the office of theconcerned Sub-Registrar, the appellant / plaintiff had been informed thatno such document had been registered in that office. The originalapplication dated 05.07.2010, whereby the appellant/ plaintiff had soughtthe confirmation from the office of the Sub-Registrar, Bingha, U.P alongwith a copy of the receipt dated 05.10.2010 indicating the inspection feedeposited for the said purpose, was enclosed along with the said Crl. M.A. 11306/2010.

3. It was the case of the appellant/ plaintiff that respondent No.1/

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defendant No. 1 had thereby committed an offence under Section 193,196, 199, 200 and 209 of the Indian Penal Code in relation to theproceedings in the Trial Court hearing the said civil suit [CS(OS) 809/2010]. Consequently, a prayer was made under Section 340 Cr. P.C foran enquiry and for submitting a complaint in writing.

4. We may point out that that application had been dismissed by theimpugned order dated 10.09.2010 by the learned Single Judge holding asunder:

“This application also pertains to alleged perjury in respect ofproperty No. 284, First Floor, Satya Niketan, Moti Bagh, NewDelhi, which is not the subject matter of the present suit. Hence,application is dismissed as not maintainable.

5. Before us, the learned counsel for the appellant submitted thatthe learned Single Judge had committed a gross error inasmuch as thesaid property No. 284 was, indeed, the subject matter of the present suitas it was part of the contract dated 26.05.2007 executed by and betweenthe appellant/ plaintiff and the respondent No.1/ defendant No.1 in respectof which the suit for specific performance had been filed. However,before we go into this aspect of the matter, a serious challenge has beenmade by the learned counsel for the respondent No.1/ defendant No.1regarding the maintainability of the present appeal.

6. But, before we examine the question of maintainability, it wouldbe appropriate to indicate that even when the appeal had come up for thefirst time before another Division Bench of this Court on 29.08.2011,that Bench had reserved orders on the question of admission. Thereafter,the order was delivered on 26.09.2011 whereby, the said Division Bench,after considering the contentions raised by the learned counsel for theappellant and after referring to Sections 340, 341 Cr. P.C and the decisionof a Division Bench of the Calcutta High Court in the case of SubirKumar Ghosh v. Prasar Bharti Broadcasting Corporation of India:2006 CRI .L J. 4109, came to the conclusion that the issue needed tobe examined. Therefore, the Division Bench was inclined to issue noticeto the respondents on the question of admission and final disposal. It isafter issuance of notice that the respondents have entered appearance andthe learned counsel for the respondent No.1 has now taken the plea, at

the threshold, that the Letters Patent Appeal is not at all maintainablefrom an order of a learned Single Judge on an application under Section340 Cr.P.C.

7. The learned counsel for the appellant submitted that the issue ofmaintainability had been gone into by the earlier Division Bench and it isonly after the said Division Bench was convinced that the Letters PatentAppeal was maintainable that notice was issued in the appeal. We, however,do not agree with this contention of the learned counsel for the appellantinasmuch as the earlier Division Bench was clear in expressing its opinionthat the issue needed to be examined and, therefore, notice was issuedto the respondents on the question of admission as well as final disposal.There is no clear finding of the earlier Division Bench that the LettersPatent Appeal was maintainable. In fact, at that point of time, the saidBench had only heard the appellant and, obviously, there was no submissionon the part of the respondents inasmuch as even notice had not beenissued.

8. The learned counsel for the appellant submitted that the decisionof a Division Bench of the Calcutta High Court in the case of SubirKumar Ghosh (supra), whereby it had disagreed with an earlier view ofthat Court in the case of Pashupati Nath De v. Murari Mohan: 81CWN 762, was clearly applicable to the facts of the present case. Wemay point out that in Subir Kumar Ghosh (supra), two decisions of theSupreme Court had been referred to. They were:

(i) Vinita M. Khanolkar v. Pragna M. Pai: (1998) 1 SCC500; and

(ii) P. S. Sathappan v. Andhra Bank Ltd: AIR 2004 SC5152.

The Division Bench of the Calcutta High Court, after noticing the SupremeCourt decision in P. S. Sathappan (supra), observed that the majority ofthe judges of the said Bench had held that in order to exclude thejurisdiction conferred by the Letters Patent to hear an appeal against anorder of a learned Single Judge, there must be a specific provision in therelevant statute which explicitly excluded such jurisdiction. It was alsonoticed in the said decision that the Supreme Court in the case of P. S.Sathappan (supra), had approved the earlier decision of a Bench of two

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Hon’ble Judges of the Supreme Court in the case of Vinita M. Khanolkar(supra).

9. The learned counsel for the respondent No.1 placed before ustwo decisions – one of a Full Bench of the Madras High Court andanother of a Division Bench of the Gujarat High Court. In Muniswamyv. Rajaratnam: AIR 1922 Madras 495 (FB), the Full Bench of theMadras High Court held that no appeal lies to the High Court from thedecision of a judge of the High Court in exercise of criminal jurisdiction.In Abdul Karim Haji Zaveri v. District Magistrate, Junagadh andOthers: 2005 CRI. L. J. 1651,a Division Bench of the Gujarat HighCourt, while considering an appeal from an order passed under Section340 Cr. P.C read with Section 195 (1)(b)(i) Cr. P.C, observed that theappeal was not maintainable under Clause 15 of the Letters Patent asClause 15 of the said Letters Patent clearly barred an appeal against anorder made by a Single Judge of the High Court in exercise of criminaljurisdiction.

10. It is in this background that we need to examine the questionof maintainability of the present appeal. The relevant provision underwhich the present appeal has been filed is Clause 10 of the Letters Patentconstituting the High Court of Judicature at Lahore, which is applicableto Delhi. Clause 10 of the said Letters Patent reads as under:

“10. Appeals to the High Court from Judges of the Court – Andwe do further ordain that an appeal shall lie to the said HighCourt of Judicature at Lahore from the judgment (not being ajudgment passed in the of exercise of appellate jurisdiction inrespect of a decree or order made in the exercise of appellatejurisdiction by a Court subject to the superintendence of the saidHigh Court, and not being an order made in the exercise ofrevisional jurisdiction, and not being a sentence or order passedor made in the exercise of power of superintendence under theprovisions of Section 107 of the Government of India Act, or inthe exercise of criminal jurisdiction) of one Judge of the saidHigh Court or one Judge of any Division Court, pursuant toSection 108 of the Government of India Act, and thatnotwithstanding anything hereinbefore provided an appeal shall

lie to the said High Court from a judgment of one Judge of theHigh Court or one Judge of any Division Court, pursuant toSection 108 of the Government of India Act, made on or afterthe first day of February, one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decreeor order made in exercise of appellate jurisdiction by a Courtsubject to the superintendence of the said High Court where theJudge who passed the judgment declares that the case is a fitone for appeal, but that the right of appeal from other judgmentsof Judges of the said High Court or of such Division Court shallbe to Us, Our Heirs or Successors in Our or Their Privy Council,as hereinafter provided.”

(emphasis supplied)

On a plain reading of the said Clause 10, it is clear that there are certainmatters which are excluded. Those matters fall within the brackets,which read as under:

“(not being a judgment passed in the of exercise of appellatejurisdiction in respect of a decree or order made in the exerciseof appellate jurisdiction by a Court subject to the superintendenceof the said High Court, and not being an order made in theexercise of revisional jurisdiction, and not being a sentence ororder passed or made in the exercise of power of superintendenceunder the provisions of Section 107 of the Government of IndiaAct, or in the exercise of criminal jurisdiction)”

(underlining added)

11. It will be seen that a sentence or order passed or made inexercise of criminal jurisdiction has been excluded. In other words, asentence or order passed or made by a Single Judge of the High Courtin exercise of criminal jurisdiction cannot be the subject matter of aLetters Patent Appeal under Clause 10 of the said Letters Patent. Thequestion that arises is whether a proceeding under Section 340 Cr.P.Cis in exercise of criminal jurisdiction or not? Section 340 Cr. P.C as alsoSection 341 Cr. P.C. read as under:

“340. Procedure in cases mentioned in section 195. – (1)

Ramesh Jaiswal v. Semjeet Singh Brar (Badar Durraz Ahmed, J.)

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When, upon an application made to it in this behalf or otherwise,any Court is of opinion that it is expedient in the interests ofjustice that an inquiry should be made into any offence referredto in clause (b) of sub-section (1) of section 195, which appearsto have been committed in or in relation to a proceeding in thatCourt or, as the case may be, in respect of a document producedor given in evidence in a proceeding in that Court, such Courtmay, after such preliminary inquiry, if any, as it thinks necessary,–

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accusedbefore such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, sendthe accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence beforesuch Magistrate.

(2) The power conferred on a Court by sub-section (1) inrespect of an offence may, in any case where that Courthas neither made a complaint under sub-section (1) inrespect of that offence nor rejected an application for themaking of such complaint, be exercised by the Court towhich such former Court is subordinate within the meaningof sub-section (4) of section 195.

(3) A complaint made under this section shall be signed,–

(a) where the Court making the complaint is a High Court,by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section, “Court” has the same meaning as in section195.

341. Appeal.– (1) Any person on whose application any Courtother than a High Court has refused to make a complaint undersub-section (1) or sub-section (2) of section 340, or againstwhom such a complaint has been made by such Court, may

appeal to the Court to which such former Court is subordinatewithin the meaning of sub-section (4) of section 195, and thesuperior Court may thereupon, after notice to the partiesconcerned, direct the withdrawal of the complaint, or, as thecase may be, making of the complaint which such former Courtmight have made under section 340, and if it makes suchcomplaint, the provisions of that section shall apply accordingly.

(2) An order under this section, and subject to any such order,an order under section 340, shall be final, and shall not besubject to revision.”

12. It is apparent that the power to proceed under Section 340 hasbeen given to “any” Court, whether it is ordinarily exercising civiljurisdiction or criminal jurisdiction as per the roster. However, onceSection 340 Cr. P.C is invoked, then that court, be it a civil court orcriminal court, would be exercising criminal jurisdiction because it is inrelation to an offence referred to under Section 195 (1)(b) Cr. P.C,which, in turn, inter alia, refers to offences punishable under Sections193-196, 199, 200, 205-211 and 228 of the Indian Penal Code whensuch offences are alleged to have been committed in or in relation to anyproceeding in any court. Therefore, we are of the view that a proceedingunder Section 340 Cr. P.C is clearly a proceeding in exercise of criminaljurisdiction of a court. Consequently, an order passed on an applicationunder Section 340 Cr. P.C would be an order passed or made in exerciseof criminal jurisdiction and would, therefore, fall within the exceptionscarved out in Clause 10 of the said Letters Patent. As a result, an appealunder the said Letters Patent would not lie.

13. Section 341 Cr. P.C which provides for an appeal when thecourt to which an application is made under Section 340 Cr. P.C. refusesto make a complaint thereunder makes it explicit that an appeal would lieonly where the order under Section 340 Cr. P.C is made by a Court otherthan a High Court. In other words, no appeal would lie under Section 341from an order refusing to make a complaint under Section 340 Cr. P.Cwhen such order is passed by a learned Single Judge of a High Court.

14. The learned counsel for the appellant had placed, as pointed outabove, reliance on the decision of the Calcutta High Court in the case of

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Subir Kumar Ghosh (supra), which, in turn, had relied upon the decisionsof the Supreme Court in the case of Vinita M. Khanolkar (supra) andP. S. Sathappan (supra). We find that both the Supreme Court decisionswere concerned with civil disputes and were not concerned with a casein which the criminal jurisdiction had been invoked. Therefore, the appellantcannot draw any support from those decisions. In any event, we findthat there is nothing in those decisions which runs counter to the argumentadvanced by the learned counsel for the respondent. First of all, we maypoint out that in Vinita M. Khanolkar (supra), the Supreme Courtobserved as under:

“3. Now it is well settled that any statutory provision barring anappeal or revision cannot cut across the constitutional power ofHigh Court. Even the power flowing from the paramount charterunder which the High Court functions would not get excludedunless the statutory enactment concerned expressly excludesappeals under letters patent. No such bar is discernible fromSection 6(3) of the Act. It could not be seriously contended bylearned counsel for the respondents that if clause 15 of theLetters Patent is invoked then the order would be appealable.Consequently, in our view, on the clear language of clause 15 ofthe Letters Patent which is applicable to Bombay High Court, thesaid appeal was maintainable as the order under appeal waspassed by learned Single Judge of the High Court exercisingoriginal jurisdiction of the court. Only on that short ground theappeal is required to be allowed.”

It is obvious that the Supreme Court was considering an entirely differentquestion. The question before the Supreme Court was where the LettersPatent provides for an appeal, would an appeal lie even though there isno specific provision of an appeal in the concerned statute. It is in thatcontext that the Supreme Court held that the power flowing from theparamount charter under which the High Court functions (i.e. the LettersPatent) would not get excluded unless the statutory enactment concernedexpressly excludes appeals under Letters Patent. The same view has beenendorsed by the Supreme Court in P. S. Sathappan (supra). But thequestion before us is entirely different. In the case before us, the issueis whether the Letters Patent itself allows such an appeal or not. There

is no dispute with regard to the statutory provisions inasmuch as in termsof Section 340 Cr. P.C, no appeal lies from an order of a learned SingleJudge of a High Court. The only question is whether the Letters Patentprovides for an appeal in such a scenario. We have already explained thatthe order passed by the learned Single Judge, which is impugned beforeus, is an order passed and/ or made in exercise of criminal jurisdiction.That being the case, by virtue of Clause 10 of the said Letters Patentitself, no Letters Patent Appeal would lie to this Court. We fully endorsethe view taken by the Madras High Court and the Gujarat High Court inthe decisions referred above for the reasons expressed above. We,however, respectfully, do not agree with the view taken by the DivisionBench of the Calcutta High Court in Subir Kumar Ghosh (supra) insofaras it relates to orders passed under Section 340 Cr. P.C.

15. As a result, the present appeal is not maintainable and, therefore,there is no occasion for us to examine the matter on merits. The appealis dismissed as such.

ILR (2012) 6 DELHI 222O.M.P.

OIL INDIA LIMITED ….PETITIONER

VERSUS

ESSAR OIL LIMITED ….RESPONDENT

(S. MURALIDHAR, J.)

O.M.P. NO. : 416/2004 & DATE OF DECISION: 17.08.2012I.A. NO. : 10758/2012

Arbitration and Conciliation Act, 1996—Sections 4, 14,34—ICA Rules—Rules 58, 63—Submission was thatimpugned Award was delivered more than three yearsafter it was reserved and extraordinary delay by itself

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the award and resolving the dispute by speediermethod would be much more frustrated by permittingpatently illegal award to operate. Patently illegal awardis required to be set at naught, otherwise it wouldpromote injustice.” (Para 33)

Turning to the challenge to the impugned majority Award onthe ground of delay in its pronouncement, the Court notesthat Rule 63 of the ICA Rules, which was applicable to thearbitration agreement between the parties, does set a timelimit of two years for the conclusion of the arbitral proceedingsby the AT. Rule 58 of the ICA Rules, provides that: “Anyparty who proceeds with the arbitration with the knowledgethat any provision or requirement of these rules has notbeen complied with and who fails to state his objectionthereto in writing, shall be deemed to have waived his rightto object.” OIL continued to participate in the arbitralproceedings beyond the period of two years without objectingto the delay beyond two years in its completion. The waiverunder Rule 58 read with Section 4 of the Act did result. Thedecisions in Bharat Sanchar Nigam Limied v. MotorolaIndia Private Limited, Shyam T elecom Lt d. v. ARM Lt d.and Indian Oil Corporation Limited v. Devi Constructionssupport this conclusion. (Para 36)

After the AT reserved the Award, and when no Award waspronounced for over a year thereafter, OIL could have, inthe first instance persuaded the AT to expedite thepronouncement of the Award and if that was unsuccessfulOIL could have filed an application in the Court underSection 14 (2) read with Section 14 (1) (a) of the Act to seekthe termination of the mandate of the AT on the ground thatthere was unreasonable delay in the pronouncement of theAward. Section 14 (1) (a) specifically refers to the failure ofthe Arbitrator to act “without undue delay”. This aspect wasadverted to in Union of India v. Niko Resources Ltd. OILfor reasons best known to it did not opt for this course.

(Para 37)

rendered it contrary to public policy of India—Held, itcannot be laid down as an inviolable law thatirrespective of facts and circumstances of a case, ifthere is delay in pronouncing an Award, then it shouldbe set aside—Thus, as a party continued to participatein arbitral proceedings beyond period of two yearswithout objecting to delay beyond two years in itscompetition and majority Award deals with each ofissues dealt with by dissenting Award, it cannot besaid that delay in pronouncement of Award renderedit patently illegal or opposed to public policy of India.

The question whether an Award is vulnerable to invalidationon account of the unexplained delay in its pronouncement,in the context of the 1996 Act, was considered by theSupreme Court in the ONGC case in which in para 30 itsaid:

“30. It is true that under the Act, there is no provisionsimilar to Sections 23 and 28 of the Arbitration Act,1940, which specifically provided that the arbitratorshall pass award within reasonable time as fixed bythe Court. It is also true that on occasions, arbitrationproceedings are delayed for one or other reason, butit is for the parties to take appropriate action ofselecting proper arbitrator(s) who could dispose ofthe matter within reasonable time fixed by them. It isfor them to indicate the time-limit for disposal of thearbitral proceedings. It is for them to decide whetherthey should continue with the arbitrator (s) who cannotdispose of the matter within reasonable time. However,non-providing of time-limit for deciding the dispute bythe arbitrators could have no bearing on interpretationof Section 34. Further, for achieving the object ofspeedier disposal of dispute, justice in accordancewith law cannot be sacrificed. In our view, givinglimited jurisdiction to the Court for having finality to

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Important Issue Involved: It cannot be laid down as aninviolable law that irrespective of facts and circumstancesof a case, if there is delay in pronouncing an Award, thenit should be set aside.

[Ta Si]

APPEARANCES:

FOR THE PETITIONER : Mr. Shanti Bhushan, Senior Advocatewith Mr. Navnit Kumar and Ms.Deepika Ghotawar, Advocates.

FOR THE RESPONDENT : Mr. Sandeep Sethi, Senior Advocatewith Mr. Rishi Agarwal, Ms. MeghaMehta Agarwal and Ms. MishaRohtagi, Advocates.

CASES REFERRED TO:

1. Steel Authority of India Ltd. vs. Salzgitter MannesmannInternational GMBH 189 (2012) DLT 8.

2. P.R.Shah, Shares & Stock Brokers (P) Ltd. vs. B.H.H.Securities (P) Ltd. (2012) 1 SCC 594 that (SCC, p.601).

3. U.P. Power Corporation Ltd. vs. Rajesh Kumar 2012 (4)SCALE 687.

4. Peak Chemical Corporation Inc. vs. National AluminiumCo. Ltd. 2012 II AD (Delhi) 304.

5. Union of India vs. Niko Resources 2012 V AD (Del) 573.

6. National Thermal Power Corporation Ltd. vs. Wig BrothersBuilders and Engineers Ltd. 2009 (2) Arb.LR 238 (Delhi).

7. Indian Oil Corporation Limited vs. Devi, ConstructionsEngineering Contractors (2009) 2 Arb.LR 361 (Madras)(DB).

8. Bharat Sanchar Nigam Ltd. vs. Motorola India PrivateLimited (2009) 2 SCC 337.

9. Harji Engg. Works Pvt. Ltd. vs. M/s Bharat Heavy

Electricals Ltd. 2009 I AD (Delhi) 50.

10. Reliance Industries Ltd. vs. Madan Stores Pvt. Ltd. 146(2008) DLT 543.

11. Shyam Telecom Ltd. vs. ARM Ltd. (2004) 3 Arb.LR 146(Delhi).

12. Kanhaiyalal vs. Anupkumar (2003) 1 SCC 430.

13. Oil & Natural Gas Corporation Ltd. vs. Saw Pipes Ltd.(2003) 5 SCC 705.

14. Narayan Prasad Lohia vs. Nikunj Kumar Lohia (2002) 3SCC 572.

15. Anil Rai vs. State of Bihar (2001) 7 SCC 318.

16. Bhagwandas Fatechand Daswani vs. HPA International(2000) 2 SCC 13.

17. Fertiliser Corporation of India Ltd. vs. I.D.I Management(U.S.A.) AIR 1984 Del 333.

18. Tarini Kamal Pandit vs. Prafulla Kumar Chatterjee (Dead)by LRs. (1979) 3 SCC 280.

19. Gurucharan Singh vs. Kamla Singh (1976) 2 SCC 152.

20. R.C. Sharma vs. Union of India (1976) 3 SCC 574.

21. C. Beepathumma vs. Velasari ShankaranarayanaKadambolithaya (1964) 5 SCR 836.

RESULT: Dismissed.

S. MURALIDHAR, J.

Introduction

1. Oil India Limited (‘OIL’) has in this petition under Section 34 ofthe Arbitration and Conciliation Act, 1996 (‘Act’) challenged the majorityAward dated 6th August 2004 of the three member Arbitral Tribunal(‘AT’) that adjudicated the disputes between OIL and the RespondentEssar Oil Limited (‘EOL’) arising out of a contract dated 8th May 1995entered into between the parties for drilling of offshore wells on turnkeybasis offshore Saurashtra Coast, Gujarat and offshore North East Coast(‘NEC’), Orissa for the purpose of exploration of oil and/or gas.

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227 228Oil India Limited v. Essar Oil Limited (S. Muralidhar, J.)

Background Facts

2. OIL issued Notice Inviting Tender (‘NIT’) dated 19th July 1993for setting of four Offshore Exploratory Oil/Gas Wells, three Wells atSaurashtra Offshore of the West Coast of Gujarat and one Well in NEC,Offshore of Orissa (drilled with self-propelled floater including allsupporting services for the exploration of oil and/or gas on turnkeybasis).

3. In response to the NIT, EOL submitted its offer on 6th December1993 which was subsequently clarified / amended. EOL submitted itsfinal priced bid dated 13th January 1995 offering to deploy one TurretMoored Self-Propelled Drillship “Essar Discoverer” on turnkey basiscomplete with drilling and other associated equipment, personnel andservices for the purpose of drilling of exploratory oil and gas wells andperforming the Auxilary Operations and services for OIL (referred to inthe contract as ‘Operator’). After some exchange of correspondence,OIL accepted EOL’s offer and a Letter of Intent (‘LOI’) dated 20thFebruary 1995 was issued. Consequent upon the acceptance of EOL’soffer, the parties entered into a contract dated 8th May 1995.

4. Certain relevant definitions contained in the contract read asunder:

“1.1 “Drilling Unit” means the Turret Moored Drillship EssarDiscoverer with all equipment supplies and supporting servicesin good operating condition as detailed in Annexures 2 to 4.

1.3 “Commencement Date” means the date when the drilling unitarrives on first or standby location with all equipment, suppliesas detailed in Annexure 2 to 4 and personnel as detailed inAnnexure-5.

1.4 “Termination Date” means the date when the drilling unit isreleased by Operator, all equipment of Operator and othercontractors of operator having been off-loaded, and the DrillingUnit is available to contractor after deanchoring for cruisingfrom Demobilization site, i.e. the location drilled last.

1.13 “Operations Base”: Contractor shall establish an operations

base at Rajkot, Gujarat for Saurashtra Offshore operations andat Bhubaneswar, Orissa for North East Coast Offshore operations,to keep close liaison with Operator and shall ensure that servicesof operations manager of contractor or his representative shallbe available to operator for emergencies.

1.14 “Supply Base”: Contractor shall establish a Supply Base atOkha Port, Gujarat and/or any other port suitable to the contractorwith prior permission of the Operator to feed drilling operationat Saurashtra Basin. In the event of establishment of base otherthan at Okha Port all expenses pertaining to shift of operatorsequipment and materials shall be at Contractor’s account. Anoffshore supply base will also be established by the Contractorat Paradip Port, Orissa for North East Coast Offshore Operations.Both the supply bases should be equipped with cranes, warehouseand storage facilities and shall also receive all the materials ofoperator for further transportation to the Drilling Unit at suchbases.”

5. Under Article 2.2, the four offshore wells were to be completedwithin a period of one year with a provision for extension to completethe Wells, if necessary. The Contractor (EOL) confirmed that the Operator(OIL) shall not have to pay EOL during the extension period required forcompleting the four wells, except for meal charges beyond 12 Operator’spersonnel as per the contract and additional day rate operations, if carriedout by OIL other than indicated in the contract. The first drilling locationwas L-2, the second L-3 and third L-4, on the offshore of SaurashtraCoast, Gujarat. The last drilling location was to be L-1 on the NEC,Orissa. Under Article 2.3, a precondition for commencement of actualdrilling work by EOL was to be a written declaration drawn and signedat the first drilling location i.e. L-2 by the representatives of the OIL andEOL as to the availability of the equipment, material, other allied itemsand the fulfillment by EOL of both the personnel requirements and theobjective conditions to satisfactorily commence uninterrupted drillingoperations by the Drilling Unit (‘DU’) at the drilling locations.

6. Under Article 3.1, OIL held out that it had a Petroleum ExplorationLicence (‘PEL’) in the Arabian Sea off the Saurashtra Coast, Gujarat and

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in Bay of Bengal off the NEC. Under Article 3.3, EOL was to provideits drillship (Essar Discoverer) along with material, associated servicesand personnel. Four locations were to be set up in a period of one yearas per the following schedule:

Location Depth in Mtr. Drilling Testing Total in DaysNumber in Days in Days

L-1 5000 135 28 163L-2 3100 45 21 66L-3 2800 45 21 66L-4 1600 30 21 51

7. The inter-location move time between L-2 and L-3 was one day,from L3 to L-4 one day and from L-4 to L-1 fifteen days. The drillingdays included 43 days wire line logging period and 9 days coring period.Under Article 3.25, EOL personnel were to inspect all materials to befurnished by OIL upon delivery and were to notify OIL representative ofany apparent defect found so that OIL could replace such defectivematerials. If EOL failed to notify OIL of any defects, it was to beconclusively presumed that such appliances and materials were free fromapparent defects.

8. Article 4 dealt with mobilization and demobilization of the DU.Under Article 4.4, the mobilization of the DU could be delayed for betterweather conditions, if mutually agreed between OIL and EOL. Article 5dealt with termination. Under Article 5.1, OIL could by giving 30 dayswritten notice to EOL with a copy to their Head of Team at the drill site,terminate the contract at any time during the period of contract, if OILwas satisfied that EOL “is incompetent and incapable of performing anyof its obligations under this contract, including change of any crewmember in spite of being advised in writing to improve upon itsperformance”.

9. Under Article 27, the parties agreed that all disputes anddifferences between them were to be referred to arbitration under theRules of the Indian Council of Arbitration (‘ICA’). The venue of thearbitration was to be New Delhi or Rajkot or Bhubaneswar at the optionof OIL.

10. OIL states that there was an initial delay of 6 days in thecommencement of the operations at L-2. The first well was spuddedonly on 14th June 1995. The drilling at L-2 was completed after theexpiry of 161 days on 21st November 1995. There was a delay of 119days in drilling which included 45 days lost for repair of EOL’s variousequipments and four days lost for cementing squeeze. The inter locationmove time from L-2 to L-3 took 19 days resulting in a delay of 18 days.The operation at L-3 took 46 days. Three days were lost for improvingthe cementing of the casing and two days were lost in repairs. The interlocation move time from L-3 to L-4, took 8 days thereby causing a delayof 7 days. The delay of 25 days in inter location movement resulted inthe stipulated time for drilling being exceeded by 92 days. Consequently,the further inter location movement from L-4 to L-1 was delayed.

11. The work at L-2 commenced on 8th June 1995 and work atL-4 was completed on 16th July 1996, whereas under the contract EOLwas obliged to drill all the four wells within 365 days. The inter locationmovement from L4 to L-1 which ought to have been completed on 31stJuly 1996 did not commence till 3rd September 1996. It is the case ofOIL that the drillship (Essar Discoverer) reached at L-1 around 24thSeptember 1996. According to OIL the drill ship did not conform to thedefinition of a DU in terms of Article 1.1 of the contract.

12. At this stage, it is necessary to note certain relevant facts. Bya letter dated 19th July 1996, EOL informed the OIL that the EssarDiscoverer was in the process of pulling up BOP stack after release atlocation L-4 and was awaiting a better weather for travel. The Ministryof Petroleum and Natural Gas (‘MoPNG’), Government of India grantedPEL for Offshore NEC under the cover of a letter dated 22nd July 1996.

13. In a letter addressed to EOL on 23rd July 1996, OIL pointedout various shortcomings and operational deficiencies in EOL’sperformance of the contract as noticed during the drilling operation at L-2, L-3 and L-4. EOL replied on 23rd July 1996 denying the contentionsof OIL and inter alia setting out decisions of EOL to ensure that thestandard of equipment maintenance was further improved. On 13th August1996, EOL informed OIL that Essar Discoverer had been “waiting onweather till 12th August 1996” and that the period between 18th July and

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231 232Oil India Limited v. Essar Oil Limited (S. Muralidhar, J.)

12th August 1996 should be added to the time allowed for completion ofthe contract without levying any penalty.

14. By letter dated 20th August 1996, OIL informed EOL that itwas “pleased to extend the contract under Article 2.2 for a period forcompletion of the wells, one in location L-4 in SEP and the other inlocation L-1 in NEC or until 31st March 1997 whichever is earlier at thesame rate, terms and conditions”. By a separate letter dated 20th August1996, EOL informed OIL that it would be able to mobilize to the NEConly by the end of September 1996 and further that the period fromOctober to December was unfit for carrying out drilling operations in theNEC. It also expressed its apprehension that even after mobilization EOLwould not be able to complete anchoring and commence drilling operationsdue to adverse weather conditions.

15. OIL claimed to have written to EOL on 22nd and 24th August1996 showing various defaults and deficiencies on the part of EOL whiledrilling the wells at locations L-2 and L-3. This was followed by ameeting which took place between the parties on 26th August 1996 atRajkot. In the technical presentation made by EOL at the meeting itclaimed that it had lost considerable amount of time and money ondrilling at location L-2 due to incorrect data provided by OIL and it wasin the interest of OIL and the safety of the well to review the drillingprogramme for location L-1. EOL had carried out a third party inspectionof the casing pipes offered by OIL at Bhubaneswar and Paradip. Manyof the casings had been rejected due to heavy corrosion and not meetingthe required oilfield standards, there was need to immediately replacethem. The clearances between 10-3/4” and 85/ 8” casings were inadequate.Several vital parameters of 14” casing were found in not conformity withAPI recommendations. It was pointed out that this deficiency had seriousconsequences endangering the well, the rig and the life of the people onboard. This was reiterated by EOL in its letter dated 3rd September 1996to OIL.

16. On 13th September 1996, EOL informed OIL that EssarDiscoverer which had sailed from Okha to location L-1 was estimatedto arrive at Paradip on 24th September 1996 and that all associatedservices required to be provided by EOL would be mobilized in time for

the drillship to commence drilling operations on arrival at location L-1.EOL asked OIL to arrange to obtain Offshore Defence Advisory Group(ODAG) clearance as well as other clearance that may be required forthe drillship. On 20th September 1996, EOL informed OIL that thedrillship had been taken directly to location L-1. On 21st September1996, OIL insisted that Essar Discoverer should reach at Paradip soonto obtain clearances from the different authorities before moving to locationL-1. EOL in response asserted that there was no need for drillship to callat any port. However, OIL’s stand in its letter dated 23rd September1996 was that the Essar Discoverer should be brought to Paradip fortaking clearances from the various authorities. In its letter dated 23rdSeptember 1996, EOL stated that the responsibility for obtaining clearance,under Article 9.9(b) of the contract from the naval authorities and ODAGwas of OIL. By another letter dated 25th September 1996, EOL informedOIL that it would be charging Day Rate D-3 from 24th September 1996till such time OIL arranged the clearances.

17. In the meanwhile, on 24th July 1996 itself OIL had written tothe Defence Research and Development Organisation (‘DRDO’) aboutthe drilling in the NEC being proposed to be started by 3rd week ofAugust 1996. The Secretary, MoPNG also wrote a letter dated 11thSeptember 1996 to the Ministry of Defence (‘MoD’) making a ferventplea for clearance to be granted for oil exploration in the NEC. This wasreiterated in a letter dated 25th September 1996 from OIL to the ChiefController (R&D), MoD. OIL also wrote to the MoPNG on 16th September1996 stating that it had approached the naval authorities for grant of “NoObjection Certificate” (‘NOC’) and requested the MoPNG also to suitablyadvise the Naval Headquarters for instructions to appropriate navalcommand for carrying out the inspection of the drillship immediately.The DRDO rejected the grant of permission for any period after 31stDecember 1996. In its letter dated 1st October 1996, the DRDO statedthat operation in the NEC would be stopped with effect from 1st January1997, since the zone was needed by the DRDO for undertaking defencerelated missions.

18. Without mentioning the above efforts made by it to obtain navaland DRDO clearances, OIL wrote to EOL on 1st October 1996, callingupon it to fulfill its contractual obligation to obtain necessary clearance

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stating that all possible assistance would be provided by OIL in terms ofArticle 6.9 of the contract. EOL was asked to position its drillship atlocation L-1 immediately. On 10th October 1996, OIL wrote to EOLstating that it was EOL’s obligation to obtain clearance from the NavalAuthorities as per Article 6.9 of the contract. It took the stand that therequirement that the OIL should obtain the clearances was outside theprovisions of the contract and not acceptable to them.

19. Within two days thereafter on 12th October 1996, OIL addressedthe following letter to EOL:

“Dear Sirs,

Whereas you are incompetent and incapable of performing yourobligations under the aforesaid contract, please take notice thatOil India Limited hereby terminates the above contract in termsof the relevant conditions thereof with immediate effect.

This is without prejudice and in addition to all other rights andcontentions which Oil India Limited has against you under theaforesaid contract and in law.”

20. On 11th October 1996, the naval authorities visited the drillshipEssar Discoverer, carried out an inspection and granted clearance thatwas valid till 31st December 1996 which was the period up to whichDRDO had also granted permission to OIL. On 18th October 1996, thenaval clearance was conveyed to OIL by the Flag Officer Commanding-in-Chief of the Eastern Naval Command.

21. It is the case of EOL that under Article 3.3 of the contract atotal time of 163 days had been allocated for completion of drilling atlocation L-1. By 12th October 1996, OIL realised that only less than 80days would be available for this purpose up to 31st December 1996 andtherefore, the drilling process at location L-1 could not be completed bythen. Also, OIL’s liability to compensate EOL for non-utiltisation of theDU for the entire period would stand attracted. To avoid this, OILdecided unilaterally to terminate the contract. EOL further contends thatthis termination was contrary to Article 5 of the contract in terms ofwhich 30 days’ prior notice was to be given. Admittedly, no such noticewas given by OIL to EOL. As a result of the sudden termination of the

contract, EOL was compelled in turn to terminate its contracts withvarious parties for rig positioning services, supply services, mud loggingservices, cementing services and ROV services etc.

22. It is the case of OIL that EOL did not have a complete DU atlocation L1 on 24th September 1996. It was supposed to have twoOffshore Supply Vessels (‘OSV’) and one Blowout Preventer (‘BOP’).According to OIL only one OSV Nand Cauvery carrying material fromBase Station at Okha reached location L-1 on 1st October 1996. TheBOP stack had been sent for maintenance to Abu Dhabi, and one OSVwas waiting at Dubai. The BOP was loaded on the said OSV by 7thOctober 1996. It was therefore contended that EOL was not in a positionto commence drilling operation at L-1 on the date when the EssarDiscoverer reached L-1.

23. On 17th October 1996, EOL submitted three invoices to OIL,one claiming amount in lieu of notice period, the second for demobilizationcharges after completion of operations at L-4 and the third for Day Ratecharges for 18 days on the basis of denial of access to L-1.

Arbitral proceedings

24. The disputes and differences were referred to the AT comprisingMr. Justice R.S. Pathak, former Chief Justice of India as PresidingArbitrator, Mr. Justice Rajinder Sachar, retired Chief Justice of HighCourt of Delhi and Mr. Justice J.K. Mehra, retired judge of Delhi HighCourt as co-Arbitrators. EOL filed its statement of claims, claiming thefollowing amounts:

“(a) Value of work done butpayment not made Rs.113,707 $7,761,754

(b) Wrongful and unauthoriseddeduction by OIL from Essar’sinvoices $2,620,460

(c) Expenses incurred by Essarat Rajkot and Bhubaneswar forcompleting the Well L-2,that is to say, from 17 July 1996

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to 3 September 1996. Rs.11,966,059 $837,292

(d) Value of extra work done atLocation L-2. $4,377,674

(e) Damage for wrongful invocationof bank guarantee. Rs.6,172,600

(f) Damages for breach of contract.Rs. 502,900,00 $2,180,950”

25. While denying the above claims, OIL filed its counter-claims,which are as under:

“1) Recovery of cost being the difference (In Rs.)of the cost between 9-5/8” casing and 7”casing used in well at Loc. L-2. 19,16,923

2) Recovery towards excess paymentmade to Claimant due to variation inexchange rate in view of delay indrilling of wells in Saurashtra. 1,56,08,446

3) Liquidity damages for the periodfrom 1 August 1996 to 11 October 1996@ US$7,500.00 per day amountingto US$540,000.00 (Excange rate @Rs.36.00/US$). 1,94,40,000

4) Delay in inspection of the defendant’smaterials for Loc.L-1 23,38,644

5). Defendant’s third party materials whichwere not handed over in time asper contract resulting in extra expense toOIL for the period 12 November 1996to 28 December 1996

(i) Hire charges for wireline loggingequipment@US$1,13,000.00 per monthfor 44 days: $165,733.33

(ii) Production Testing:

(a) Hire charges of essential equipment@US$39,631.00 per month for 44 days: $58,125.47

(b)Hire charges of additional equipment@US$18,600.00 per month for 44 days: S$27,280.00

Total : $251,138.80

(Exchange rate @ Rs.36.00/US$) 90,40,997

6) Service of third party (Schlumberger)availed by the Claimant: $47,139.80

(Exchange rate @ Rs.36.00/US$) 16,97,033

7) Telephone and other charges, the servicesof which have been availed by the Claimantfrom OIL’s different offices:

-For Saurashtra Operations:-Telephone charges from November 1995 to 3,24,856September 1996:-Port space hiring charges at Okha for the periodSeptember 1995 to March 1997: 2,04,925-Port electricity charges paid on behalf of Essar: 4,244-Car used by Essar: 2,897-Transportation charges of Dressing Mill as perthe request of Essar: 12,000-Wireless license fee paid by OIL for the periodJune 1995 to 30th September 1996: 20,267-Transportation charges for Regan Slope Indicator: 12,000-Off-loading of OIL’s third party contractor’smaterial at Okha: 19,854-Recovery of excess amount paid while settlingInvoice No.EOL/02/96/MISC/6, EOL/02/96/12,8; EOL/03/96/MISC/20 for boarding and lodgingcharges of Essar: 78,961

-Expenses for NEC Operation-Telephone charges for the period 16 April 1996to 15 June 1996 spent by OIL’s BhubaneswarOffice: 3,448

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-Supply of labour at Paradeep Port paid toOrissa Stevedors Ltd. 92,074-Amount paid to M/s. M.J. Engineers. 3,000-Payment made for cleaning and servicing of 30”Casing and wellhead items. 2,876-Advance rent for Plot paid to Paradeep PortTrust for open area and go-down for the periodfrom 1 October 1996 to 31 December 1996 46,094-Compressor hire charges, HSD cost etc. paid toParadeep Port Trust on behalf of Essar. 8,734

Total:5,08,78,273”

26. The AT framed the following issues:

“1. Whether the Claimant or the Respondent was obliged toobtain any clearance for drilling at location L-1 from theGovernment including DRDO and Naval authorities?

2. Whether under the facts and circumstances of the case theClaimant was incompetent and incapable of performing thecontract?

3. Whether under the facts and circumstances, the contract wasrightfully terminated by the Respondent?

4. Whether the various claims and counter-claims made by theparties are maintainable under the contractual terms andconditions?

5. Whether under the facts and circumstances, the Claimant isentitled to relief on any or all of its claims?

6. Whether the Respondent is entitled to relief on its counter-claim?

7. To what other relief is the Respondent entitled?”

27. On behalf of EOL Mr. N. Ramesh was examined as CW-1, Mr.A.D. Amladi as CW-2 and Mr. E. Kotylak as CW-3. The said witnessesfiled their affidavits and were cross-examined. OIL’s witnesses were Mr.Ranabir Sircar, RW-1, Mr. Tradip Kataky, RW-2 and Mr. Dwijaraj Dash,RW-3. They filed affidavits and were cross-examined by EOL.

The Majority Award

28. The majority Award dated 6th August 2004 by Justice Pathakand Justice Mehra decided as under:

(i) It was OIL and not EOL which was obliged to obtain priorclearances from DRDO and the naval authorities for drilling atlocation L-1;

(ii) OIL failed to prove that EOL was incompetent and incapableof performing the contract. Consequently, the contract was notrightfully terminated by OIL;

(iii) EOL was entitled to US Dollar (‘USD’):

1,296,880 as acknowledged by OIL towards wellcompletion charges for L-4

2083.33 being the Day Rate 3 for one hour in terms ofArticle

4.3 of the contract being the time during which the drillshipwas on 15th July 1996 waiting for orders from OIL; and

750,000 on account of inter location move from L-4 toL-1;

3,000,000 towards demobilization charges;

540,000 for waiting at location L-1;

2,166 material procured by EOL for OIL

112,388 for Brine Solution

2,580 for Filter Cartridges

Rs.50,630 + Rs.25,280 + Rs.37,548 towards telephoneand fax charges

(iv) EOL was held entitled to (in USD):

1st 124,277 towards delay in payment of invoice datedDecember 1995 at 12% per annum

12,740 being the interest at 12% per annum for delay inpayment of invoice dated 1st January 1996

3,478 towards interest for delay in payment of invoice

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dated 1st February 1996

27,707 towards interest at 12% per annum on the delayedpayment of the well completion charges;

(v) EOL was entitled to (in USD)

595,781.25 for wrongful deduction by OIL of LiquidatedDamages (‘LD’) from the invoice raised by EOL, beyondthe scope of Article 15.2,

292,101.95 in respect of invoice on account of deductionsmade disallowing the time spent on remedial jobs

590,000 as regards the deductions made in respect of theperiod of 409 and 63 hours in December 1995 and January1996

94,374.30 being 5% retention from the invoice of EOL byOIL

259,375 in respect of claims of EOL upon unjustifieddeduction from other invoices

313,985 for expenses incurred at Rajkot and Bhubaneswarafter completing location L-4

349,423.51 for the cost of additional material purchasedand used at location L-2

Rs.7,31,178 as damages for wrongful invocation of thebank guarantee and

Rs.15 lakhs towards costs and expenses of litigation.

(vi) Interest at 12% per annum from 1st May 1997 till the dateof the Award and post-Award interest at 8% per annum till thedate of actual payment was awarded to EOL. However, EOL’sclaim for USD 1,500,000 for compensation in lieu of notice oftermination, was rejected. The total claims of EOL allowed werein the sum of USD 8,369,339 and Rs. 68,30,504 together withinterest at 12% per annum till the date of the Award and at 8%per annum thereafter till the date of payment.

(vii) The following counter-claims of OIL were allowed (in Rs.):3,28,304 towards reimbursement of telephone expenses (Counter

Claim No. 6)

2,51,019 towards hire charges for port space at Okha inParadip (Counter Claim No.7)

4,244 towards electricity charges (Counter Claim No.8)

2,897 towards hiring charges for cars (Counter ClaimNo. 9)

20,267 towards wireless licence fee (Counter Claim No.10)

12,000 towards transportation charges of dressing mill(Counter Claim No. 11)

19,854 towards cost of off-loading third party Contractors’material (Counter Claim No. 12)

1,66,884 towards compensation for labour force providedfor inspection of material (Counter Claim No. 14)

77,00,000 towards recovery of material cost (CounterClaim No.15)

(viii) The remaining counter-claims of OIL were rejected. A totalof Rs. 85,05,469 of OIL’s counter-claims were allowed togetherwith interest at 12% per annum till the date of the Award andat 8% per annum thereafter till the date of payment.

The Dissenting Award

29. Justice Sachar who gave the dissenting Award first held thatOIL could not be held to have acted illegally in terminating the contract.The claim for the inter location move from L-4 to L-1 was rejected,since even up to 18th October 1996, the BOP and OSV were not in aposition to reach L-1. The claim for USD 3 million towards demobilizationof the DU was allowed. Justice Sachar rejected the claim of EOL in thesum of USD 900,000 for waiting at location L-1. Justice Sachar hadrejected the claims for delayed payment of invoices or the reimbursementof the deductions made by OIL. EOL’s claims for telephone and faxcharges, procurement of material, brine solution, filter cartridges wereallowed. EOL’s claim for cost of additional material at location L-2, thedamages for wrongful invocation of bank guarantee as well as claim for

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past interest were all rejected. On the claims of EOL that he allowed,Justice Sachar granted post-Award interest at the rate of 12% per annum.Barring one counter-claim relating to entitlement of OIL to refund of thedifferences between cost of 9-5/8” and 7” casing, all other counter-claims were rejected. On the question of pro rata refund of mobilizationcharges, EOL was directed to refund to OIL half of USD 6.5 million.

Delay in pronouncement of Award and I.A. No.10758 of 2012

30. The first submission by Mr. Shanti Bhushan, learned Seniorcounsel appearing for OIL, was that the impugned Award was deliveredmore than three years after it was reserved and extraordinary delay byitself rendered it contrary to the public policy of India. Referring to thejudgments of the Supreme Court in Kanhaiyalal v. Anupkumar (2003)1 SCC 430, Bhagwandas Fatechand Daswani v. HPA International(2000) 2 SCC 13, Anil Rai v. State of Bihar (2001) 7 SCC 318 andR.C. Sharma v. Union of India (1976) 3 SCC 574, he submitted thatwhere an unexplained delay in the delivery of a judgment by a High Courtitself gave “rise to unnecessary speculations in the minds of parties to acase” could be the sole ground for it being set aside, then a fortiori anarbitral Award that was delivered after an unexplained delay should be setaside as being opposed to the public policy of India. He referred to thedecision in Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd.(2003) 5 SCC 705 (hereafter ‘the ONGC case’) and submitted that thephrase ‘public policy of India’ was wide enough to include ‘some matterswhich concern public good and the public interest’ and expeditiouspronouncement of arbitral Awards was one such.

31. Mr. Shanti Bhushan referred to the decision of the learnedSingle Judge of this Court in Harji Engg. Works Pvt. Ltd. v. M/sBharat Heavy Electricals Ltd. 2009 I AD (Delhi) 50 and urged that inthat case an Award that was delayed for over three years was set asideon that ground by the Court. Mr. Bhushan’s attention was drawn toanother judgment of this Court on the issue in Peak ChemicalCorporation Inc. v. National Aluminium Co. Ltd. 2012 II AD (Delhi)304 which sought to distinguish the judgment in Harji Engg. Works onfacts. OIL then filed I.A. No. 10758 of 2012, praying that since a viewcontrary to Harji Engg. Works had been taken in Peak Chemical the issue

ought to be referred to a larger Bench. In the said application, thePetitioner also sought to formally add a ground to the main petition tochallenge the Award on the ground of delay in pronouncement. Referringto the decision in U.P. Power Corporation Ltd. v. Rajesh Kumar 2012(4) SCALE 687, Mr. Bhushan submitted that a failure to refer the issueto a larger Bench would be a ‘deviation from the judicial decorum anddiscipline’. He referred to the decisions in Tarini Kamal Pandit v.Prafulla Kumar Chatterjee (Dead) by LRs. (1979) 3 SCC 280 andGurucharan Singh v. Kamla Singh (1976) 2 SCC 152 in support ofthe amendment sought to the petition to add a ground at the stage ofarguments.

32. Mr. Sandeep Sethi, learned Senior counsel appearing for EOL,referred to Rule 58 of the ICA Rules, and submitted that since OIL failedto raise an objection at the first available instance before the AT aboutexceeding the time limit of two years specified in Rule 63 for completionof the arbitral proceedings and continued to participate even thereafter,OIL should be deemed to have waived such objection as to the delay inthe completion of arbitral proceedings and pronouncement of the Award.He referred to Section 4 of the Act and to the decisions in BharatSanchar Nigam Ltd. v. Motorola India Private Limited (2009) 2 SCC337 and Shyam Telecom Ltd. v. ARM Ltd. (2004) 3 Arb.LR 146(Delhi) and submitted that where a party which knows that the requirementunder the arbitration agreement has not been complied with still proceedswith the arbitration without raising an objection it should be held to havewaived its right to object. Reliance was placed on the decisions in IndianOil Corporation Limited v. Devi, Constructions EngineeringContractors (2009) 2 Arb.LR 361 (Madras) (DB) and RelianceIndustries Ltd. v. Madan Stores Pvt. Ltd. 146 (2008) DLT 543. Itwas further submitted that the Petitioner had to demonstrate the prejudicecaused to it on account of such delay. Reliance was placed on thedecisions in C. Beepathumma v. Velasari ShankaranarayanaKadambolithaya (1964) 5 SCR 836 and Narayan Prasad Lohia v.Nikunj Kumar Lohia (2002) 3 SCC 572. Referring to the decision inNational Thermal Power Corporation Ltd. v. Wig Brothers Buildersand Engineers Ltd. 2009 (2) Arb.LR 238 (Delhi) Mr. Sethi submittedthat an amendment sought to the petition eight years after it was filed,

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and that too at the stage of final arguments, ought not to be permitted.He further submitted that if OIL was aggrieved by the delay inpronouncement of the Award it could have initiated steps under Section14(2) read with Section 14(1) of the Act by seeking intervention of theCourt. However, it did not do so.

33. The question whether an Award is vulnerable to invalidation onaccount of the unexplained delay in its pronouncement, in the context ofthe 1996 Act, was considered by the Supreme Court in the ONGC casein which in para 30 it said:

“30. It is true that under the Act, there is no provision similarto Sections 23 and 28 of the Arbitration Act, 1940, whichspecifically provided that the arbitrator shall pass award withinreasonable time as fixed by the Court. It is also true that onoccasions, arbitration proceedings are delayed for one or otherreason, but it is for the parties to take appropriate action ofselecting proper arbitrator(s) who could dispose of the matterwithin reasonable time fixed by them. It is for them to indicatethe time-limit for disposal of the arbitral proceedings. It is forthem to decide whether they should continue with the arbitrator(s) who cannot dispose of the matter within reasonable time.However, non-providing of time-limit for deciding the dispute bythe arbitrators could have no bearing on interpretation of Section34. Further, for achieving the object of speedier disposal ofdispute, justice in accordance with law cannot be sacrificed. Inour view, giving limited jurisdiction to the Court for having finalityto the award and resolving the dispute by speedier method wouldbe much more frustrated by permitting patently illegal award tooperate. Patently illegal award is required to be set at naught,otherwise it would promote injustice.”

34. In Harji Engg. Works Pvt. Ltd., while the later paragraph inthe ONGC case which explained when an Award could be said to becontrary to the ‘public policy of India’ was noticed, the above observationsin para 30 were not. In any event, as explained in Peak ChemicalCorporation Inc., the decision in Harji Engg. turned on its own facts.The decision in Harji Engg. should not be understood as laid down as

an inviolable law that irrespective of the facts and circumstances of acase, if there is delay in pronouncing an Award then it should be setaside. OIL is therefore mistaken in concluding that there is a conflictbetween the decisions in Harji Engg. and Peak Chemical CorporationInc. In a subsequent decision in Union of India v. Niko Resources2012 V AD (Del) 573 the Court noticed both the above decisions andfurther explained the circumstances under which the delay inpronouncement of the Award could be but one factor, among others,that might persuade the Court to set it aside. It was explained that whenan Award was challenged on the ground of delay in its pronouncement,the Court would examine the facts and circumstances and ascertain ifsuch delay had led to the Award being rendered patently illegal or opposedto the public policy of India. On the facts of Niko Resources it wasobserved that the delay in that case had indeed led to an invalid Awardbeing passed. Consequently, the Court declines the prayer of OIL that thesaid issue should be referred by the Court to a larger bench.

35. As regards the plea of OIL that it should be permitted tochallenge the impugned majority Award, on the ground of delay in itspronouncement, by way of amendment to the petition, the Court notesthat this plea was sought to be urged first only in the written submissionsfiled by OIL on 20th October 2008, four years after the petition wasfiled. The formal amendment to the grounds was sought only in 2012during the course of final arguments. In National Thermal PowerCorporation Ltd. v. Wig Brothers Builders and Engineers Ltd. theCourt did not entertain a plea urged for the first time in written submissionswithout seeking amendment to the petition. In the present case, sinceOIL has filed a formal application, although belatedly, seeking permissionto amend the petition without urging any new facts, the Court permitsit to do so.

36. Turning to the challenge to the impugned majority Award on theground of delay in its pronouncement, the Court notes that Rule 63 ofthe ICA Rules, which was applicable to the arbitration agreement betweenthe parties, does set a time limit of two years for the conclusion of thearbitral proceedings by the AT. Rule 58 of the ICA Rules, provides that:“Any party who proceeds with the arbitration with the knowledge thatany provision or requirement of these rules has not been complied with

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and who fails to state his objection thereto in writing, shall be deemedto have waived his right to object.” OIL continued to participate in thearbitral proceedings beyond the period of two years without objecting tothe delay beyond two years in its completion. The waiver under Rule 58read with Section 4 of the Act did result. The decisions in BharatSanchar Nigam Limied v. Motorola India Private Limited, ShyamTelecom Ltd. v. ARM Ltd. and Indian Oil Corporation Limited v .Devi Constructions support this conclusion.

37. After the AT reserved the Award, and when no Award waspronounced for over a year thereafter, OIL could have, in the firstinstance persuaded the AT to expedite the pronouncement of the Awardand if that was unsuccessful OIL could have filed an application in theCourt under Section 14 (2) read with Section 14 (1) (a) of the Act toseek the termination of the mandate of the AT on the ground that therewas unreasonable delay in the pronouncement of the Award. Section 14(1) (a) specifically refers to the failure of the Arbitrator to act “withoutundue delay”. This aspect was adverted to in Union of India v. NikoResources Ltd. OIL for reasons best known to it did not opt for thiscourse.

38. The Court notices an inconsistency in the plea of OIL asregards its challenge to the impugned Award. OIL states in para ‘A’(page 2) and para 18 (page 29) of the petition that it confines its challengeto the extent the impugned majority and dissenting Awards allow theclaims of EOL and disallow wholly or partially the counter claims ofOIL. In other words OIL accepts the impugned Awards, even if thereis a delay in their pronouncements, as long as they allow wholly or partlysome of OIL’s counter claims. This inconsistency contradicts and deprivesOIL’s plea of its force.

39. The Court proposes to apply the test explained in NikoResources to examine if the delay in the pronouncement of the impugnedAward has led to its being vitiated in law. As will be discussed hereafter,the impugned Awards, both the majority and the dissenting Awards, aredetailed and reasoned and deal with each claim and counter claim at greatlength. The passage of time since the reserving the Award has not ledto any plea or submission of the parties being overlooked. Unlike in

Union of India v. Niko Resources Ltd. where this Court found that themajority Award had failed to deal with the issues raised in the dissentingAward, in the present case the majority Award deals with each of theissues dealt with by the dissenting Award. It cannot therefore be said thatdelay in pronouncement of the Award has rendered it patently illegal oropposed to the public policy of India.

40. The challenge to the impugned Award on the ground of delayin its pronouncement is hereby rejected.

Challenge to the majority Award on merits

41. On merits, it was submitted by Mr. Bhushan that one of theessential conditions of the contract which had to be fulfilled by theRespondent was that the DU had to comprise the BOP and OSV at alltimes and that they had to necessarily be made available to commencethe drilling. The obtaining of DRDO and naval clearance was the obligationof EOL and that had to mandatorily precede the commencement ofdrilling operations. The majority Award erred in holding that the obligationto obtain such clearance was not that of EOL. The majority Awardoverlooked the undisputed fact that when it reached the L-1 site, the DUdid not have the BOP and the two OSVs.

42. Mr. Bhushan pointed out that EOL had acted in defiance ofOIL’s direction that the DU should report at Paradip port for the purposeof naval clearance. After initially informing OIL that the DU would reportat Paradip on 24th September 1996, EOL unilaterally decided to take theDU to L 1 straightway. This was clearly in breach of the contract.Therefore, OIL was justified in concluding that EOL was incapable andincompetent to perform its obligations under the contract. There was norequirement in law that OIL had to give detailed reasons for suchconclusions in its letter dated 12th October 1996 terminating the contract.As long as facts and documents on record supported the decision of theOIL, it was perfectly justified in terminating the contract. The requirementunder Article 5 was only that 30 days’ advance notice of termination hadto be given and not a show cause notice. Mr. Bhushan submitted that themajority Award purported to sit in appeal over the decision of the OILto terminate the contract, which was legally impermissible for it to do.

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Mr. Bhushan commended for acceptance the conclusion in the dissentingAward that there was no justification for EOL to have taken the DUdirectly to L-1. Reference was also made to the evidence of Mr. TradipKataky, the witness on behalf of OIL.

43. Turning to the majority Award in respect of the individualclaims of EOL and counterclaims of OIL, Mr. Bhushan submitted thatthe drilling operations in relation to the wells at locations L-2, L-3 andL-4 in Saurashtra Offshore were not completed by EOL within thecontractually stipulated periods. There were inordinate delays caused byEOL. The 365 days’ period for completion of the drilling of all the fourwells including the one at L-1 was exceeded. The facts showed that EOLwas unwilling to proceed to location L-1 to complete the drilling operationswithin the stipulated time. The majority Award erred in interpreting Article15.2 of the contract pertaining to levy of LD charges. There was nojustification for the AT to award EOL USD 750,000 for interlocationmove from L-4 to L-1 since the interlocation had not been completed asper the terms of the contract. Further, awarding USD 3,000,000 for de-mobilization of the DU was not justified. Awarding of USD 900,000 infavour of EOL for waiting at location L-1 was not justified as the DUas defined in Article 1.1 was not available at Location L-1 and there wasno question of EOL being able to commence drilling at L-1. The applicationof Article 10.7 (B) for awarding a sum of USD 540,000, the awardingof USD 112,388 for procurements made by EOL and the applicability ofArticle 14.7 for interest on the delayed payments was also challenged. Itwas submitted that the contract was on a turnkey basis and therefore,the provisions of Article 18.11 were not applicable. The disallowing ofthe deductions made by OIL by the majority of the AT was also challengedas being contrary to the contractual provisions. The award of the amountsin foreign currency and the award of interest @ 12% per annum from1st May 1997 till the making of the Award and post-Award interest @8% per annum were also challenged.

44. Mr. Sandeep Sethi, learned senior counsel appearing for EOL,referred to the evidence on record which showed that OIL itself hadaccepted that EOL satisfactorily had drilled the wells at L-2 to L-4. OILhad itself renewed the contract on 20th August 1996 by extending thetime for completion of the drilling at L-4 and L-1 up to 31st March

1997.There was no basis for OIL to suddenly conclude on 12th October1996 that EOL was incompetent and incapable of performing its contractualobligations. OIL was pursuing the issue of grant of naval clearance withthe DRDO even as of October 1996. This itself showed that requisitesecurity clearance had to be obtained by OIL from the DRDO and navalauthorities. Even before naval clearance could be granted on 18th October1996, OIL abruptly terminated the contract on 12th October 1996. Mr.Sethi pointed out that the total number of days to be spent on eachlocation, L-1 to L-4 were set out in the contract itself. OIL realized thaton account of the delay in obtaining naval clearance, the number of daysrequired for drilling at location L-1 would exceed the outer time limit forcarrying such operations, as permitted by the DRDO i.e., 31st December1996. The liability to pay ‘well compensation charges’ to EOL damageswould accrue in the event that the DU mobilized by EOL at L-1 wasunable to be used to its full potential in terms of the contract. OIL wouldalso have to pay EOL the de-mobilisation charges in terms of the contractif the drilling operations at L-1 concluded prior to the scheduled completiondate. It was with a view to avoiding this that OIL abruptly terminated thecontract.

45. Referring to the decision in Fertiliser Corporation of IndiaLtd. v. I.D.I Management (U.S.A.) AIR 1984 Del 333, Mr. Sethisubmitted that the dissenting Award could not be looked into by theCourt for any purpose and even for determining the correctness of themajority Award. It was necessary for the Petitioner to show that themajority Award suffered from patent illegality. It was submitted that themajority of the AT had correctly interpreted the contractual provisionswhereas the dissenting Award misread and misinterpreted them. Reliancewas placed on the decision in Steel Authority of India Ltd. v. SalzgitterMannesmann International GMBH 189 (2012) DLT 8 to urge that thescope of interference by the Court with an Award under Section 34 ofthe Act is limited. The Court is not to sit in appeal over the correctnessof the findings of the learned Arbitrator on facts.

Decision on merits

46. Before dealing with the submissions on merits, it is necessaryto briefly recapitulate the scope of the powers of the Court in a petition

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under Section 34 of the Act. In McDermott International Inc. v. BurnStandard Co. Ltd. (2006) 11 SCC 181 the Supreme Court reiterated thedictum in the ONGC case and explained that (SCC, p.210): “the publicpolicy violation, indisputably, should be so unfair and unreasonable as toshock the conscience of the Court.” Further, “what would constitutepublic policy is a matter dependent upon the nature of transaction andnature of the statute. For the said purpose, the pleadings of the partiesand the materials brought on record would be relevant to enable theCourt to judge what is in public good or public interest, and what wouldotherwise be injurious to the public good at the relevant point, as contradistinguished from the policy of a particular government.” It was explainedin P.R.Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H. Securities(P) Ltd. (2012) 1 SCC 594 that (SCC, p.601): “A Court does not sit inappeal over the award of an Arbitral Tribunal by reassessing and re-appreciating the evidence.”

47. The central issue first determined in the majority Award waswhether OIL’s decision to terminate the contract by its letter dated 12thOctober 1996 was justified. In answering the said question in the negativethe majority Award referred to the clauses of the contract, thecorrespondence between the parties and other relevant documents. TheCourt has perused the contract and the evidence only for the purpose ofexamining whether the view taken by the majority of the AT was aplausible one or suffers from a patent illegality.

48. Article 5.1 of the contract permits the Operator to terminate thecontract “by giving 30 days’ written notice to the Contractor’s officeand/or with a copy to their head of team at drill site.” This was subjectto the condition that the Operator is satisfied “that the Contractor isincompetent and incapable of performing any of his obligations under thiscontract including change of any crew member in spite of being advisedin writing to improve upon his performance.” The wording of Article 5.1does not give OIL an unrestricted discretion to terminate the contract aswas suggested by Mr. Bhushan. The word “satisfied” preceding theconclusion of OIL that the Contractor was “incompetent and incapable”had to be based on some material and not the ipse dixit of OIL. Thenotice to be given to the Contractor 30 days in advance would have tonecessarily set out the reasons for such conclusion. Given the nature of

the operations expected to be undertaken by EOL, and the investment itwould have to make to execute it, it was but expected that it would beput on notice of any such proposed decision of OIL to terminate thecontract. The wording of Article 5.1 also suggests that the ground fortermination had to be that despite OIL’s “advice” to EOL “in writing toimprove upon its performance”, EOL had not. This was a further indicationthat a decision to terminate the contract could not be taken by OIL atthe spur of the moment. Article 5.1 is an instance of a power coupledwith a duty to act reasonably and fairly. This must therefore be viewedas a mandatory requirement. Admittedly in the present case, this mandatoryrequirement was not complied with. OIL does not deny that it did notgive 30 days’ notice of termination to EOL. OIL was therefore in breachof its obligation under Article 5.1 of the contract.

49. The events leading up to the termination do not show that atany point in time OIL had expressed its dissatisfaction with the workdone thus far by EOL or had asked EOL to “improve upon itsperformance.” On the other hand, on 20th August 1996, OIL extendedthe time for EOL to complete the drilling at locations L-4 and L-1 up to31st March 1997. If OIL was unhappy with EOL’s discharge of itsobligations under the contract it could not have possibly extended thetime for completion of the drilling at locations L-4 and L-1.

50. The two major reasons highlighted by Mr. Bhushan as justifyingOIL’s decision to terminate the contract was EOL’s failure to obtainnaval and security clearance for the drilling operations at L-1 and the factthat the DU that reached L-1 was incomplete as it did not comprise theBOP and the two OSVs. In the first place it requires to be noted thatunder Article 6.9 of the contract the obligation of the Contractor was toobtain and maintain, with the Operator’s assistance “all approvals, permitsand authorizations required by laws and governmental regulations andorders, for labour, material, services and supplies to be furnished bycontractor as specified herein.” Significantly, this does not mention securityclearance to be obtained by the Contractor. On the other hand Article 9.9(A) sets out OIL’s representation that “it is entitled to carry out in theoperating area, the drilling operation herein contracted for.” Article 9.9(B) states that apart from the permits to be obtained by the Contractorunder Article 6.9, “Operator shall obtain and keep informed, at its expense,

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every serious impact on the company’s finance.” OIL wrote in the samevein to the Secretary MoPNG seeking his intervention “to advise NavalHeadquarters, New Delhi to instruct appropriate Naval Command to carryout the inspection of the Drillship immediately.” On 25th September1996, the Director (Exploration and Development) OIL wrote to theChief Controller (R&D) in the DRDO requesting earnestly for “immediateapproval for our drilling operations in the NEC area as the contractor hasalready moved the drillship into that particular location and is awaitingour clearance.” In response on 1st October 1996 the Chief Controller(R&D), DRDO conveyed to OIL that it was agreeable to “a maximumperiod of 3 months (i.e. up to 31st December 1996) for carrying out thedrilling operations.” In response to a question in his cross-examination,Mr. Ranabir Sircar, OIL’s witness, admitted that “Essar had no role toplay in the DRDO clearance.” Referring to letters written by OIL seekingsecurity clearance, Mr. Sircar admitted that “permission to drill fromDRDO was the obligation of Oil India.”

52. Strangely, after this entire exercise was undertaken by it, OILwrote to EOL on 10th October 1996, not mentioning a word about theDRDO clearance given on 1st October 1996, and asked EOL to obtainsecurity clearance as per Article 6.9 of the contract. This stand of OILfollowed by its abrupt termination of the contract two days thereafterwas inexplicable. The insistence by OIL that EOL should bring the DUto Paradip was not a requirement of the DRDO or the naval authorities.As it transpired, the naval authorities inspected the DU on 11th October1996 at the location L-1 and granted naval security clearance by a letterdated 18th October 1996 to OIL with a copy to EOL. This negated thejustification for OIL terminating the contract on the ground that EOL hadfailed to obtain naval and security clearance. EOL could not havecommenced drilling operations at L-1 without the above clearances andso the question of it commencing spudding operations immediately uponreaching L-1 did not arise. Before EOL could be conveyed the navalclearance, OIL terminated the contract. At that stage therefore OIL couldnot have possibly concluded that EOL was incapable or incompetent toperform its obligations.

53. The second reason offered by OIL for terminating the contractwas the absence of the BOP and the two OSVs at L-1 when the DU

Oil India Limited v. Essar Oil Limited (S. Muralidhar, J.)

all permits, licences and other governmental authorizations, if any, whichare required to be obtained by operator for the performance of thecontract.” In the present case the PEL for the NEC was granted to OILonly on 22nd July 1996. This however did not mean that drilling couldstart at L-1 soon thereafter. In terms of Clause (13) of the PEL “at leasttwo months clear advance notice on commencement of exploration work”had to be given to the MoD “so that exploration work does not clashwith any naval exercise in the area.” Further, under Clause (18) of thePEL “all vessels deployed in the area by contracted companies shallundergo naval security inspection prior to their deployment” and onemonth’s notice was to be given to facilitate clearance. Para 7.2 of Annexure8 to the contract specified that all permits and licences required to beobtained for the drilling site were the responsibility of OIL. All the aboveclauses unmistakably show that the obligation to obtain naval and securityclearance was that of OIL. The said conclusion of the majority of theAT was not only plausible but based on a correct interpretation of theabove provisions of the contract. The view of the dissenting Arbitratorthat “it cannot be said with certainty from the record whether navalclearance was the sole responsibility of the claimant or the respondent”is contrary to the unambiguous clauses of the contract and is unacceptable.

51. OIL understood the position correctly as is evident from thefact that it was OIL that applied to ODAG on 5th May 1995 for securityclearance for drilling the wells at locations L-1 to L-4. On 24th June1996 OIL wrote to the DRDO stating that it was starting drilling operationsin the NEC by the third week of August 1996 and asked what action wasto be taken at its end. It wrote a similar letter to the Flag OfficerCommanding-in-Chief at the Eastern Naval Command on 25th July 1996.The letter dated 11th September 1996 from Mr. Vijay Kelkar of OIL tothe Scientific Adviser to the Defence Minister is significant. It pleadedthat in light of the fact that the “drillship is expected to reach the locationin the NEC area and start drilling by the end of September 1996”, it wasessential “that OIL is given permission, temporarily, for about 7 monthstill completion of this important exploratory well.” It added that in caseDRDO’s permission was not given it would “lead to OIL’s paying about$3.5 million to the contractors on account of early termination of thedrilling contract and force majeure condition. Obviously this would make

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reached there on 24th September 1996. The majority Award has rejectedthis as not being a valid reason for termination of the contract and theCourt finds, for reasons explained hereafter, that this conclusion wascorrect. There is no dispute that after EOL made two presentations, oneat Rajkot on 26th August 1996 and another at Delhi on 2nd September1996, OIL was satisfied of the drill worthiness and competence of EOLand consented to EOL moving the DU 3rd from L-4 to L-1. After theDU left L-4 on September 1996, daily progress reports were dispatchedto OIL till the DU reached L-1. Consistent with its obligation underArticles 6.4 (E) and (F) of the contract, EOL sent the BOP to Abu Dhabifor repairs after dismantling it at L-4. OIL was informed of this by aletter dated 31st July 1996. In terms of the Drilling Programme, set outin Annexure -3 to the contract, the BOP could not have been installedbefore running and cementing of a casing of diameter less than 18.5/8”.The BOP was therefore not required till the 29th day after spudding ofthe well at L-1. The BOP was overhauled and loaded on to the OSV inthe first week of October 1996 and would have reached L-1 in time. Theso-called reason for terminating the contract, i.e. the absence of the BOPand OSVs at L-1, was never communicated to EOL. Mr. Ranabir Sircar,a witness for OIL, in his cross-examination when asked if there was“any letter or document addressed to Essar between 1st and 11th October1996 pointing out to alleged shortcomings relating to material, equipment,OSV and the like” sated “I do not find any document with me at present.”Even subsequently no such document was produced before the AT byOIL. The conclusion of the majority of the AT that “the drillship did notcontain the BOP and was not accompanied by both OSVs on 1 October1996 at Location L-1 cannot be made the subject of a grievance by OIL”was correct.

54. As regards the other individual items of claims and counterclaims, both the majority Award as well as dissenting Award have analyzedthe evidence thoroughly. Merely because another view is possible doesnot constitute a valid reason for the Court to interfere with the majorityAward. Although the Court has perused the entire evidence with the helpof counsel, it is not necessary for the Court to discuss the evidence inrespect of each claim and counter claim. OIL has been unable to persuadethe Court to come to the conclusion that the majority Award in respect

of the claims and counter claims suffers from any patent illegality andis opposed to the public policy of India.

Conclusion

55. For all the aforesaid reasons, this Court does not find anyground having been made out for interference with the impugned majorityAward. The petition is dismissed with costs of Rs.50,000 which will bepaid by OIL to EOL within a period of four weeks from today. I.A. No.10758 of 2012 is disposed of.

ILR (2012) 6 DELHI 254W.P. (C)

RAJESH KUMAR MEENA ....PETITIONER

VERSUS

COMMISSIONER OF POLICE & ORS. ....RESPONDENTS

(BADAR DURREZ AHMED & SIDDHAR TH MRIDUL, JJ.)

W.P. (C) NO. : 5134/2012 & DATE OF DECISION: 24.08.2012CM NO. : 10499/2012

Service Law—Disciplinary Proceedings—Competenceof Enquiry Officer (EO) challenged for the first time inthe proceedings before the Central AdministrativeTribunal, on the ground that the EO was subordinatein rank to the complainant, as such not independent—Held, since the EO was SHO, Paharganj while theComplainant was ACP Daryaganj, it cannot be said thatthe EO was directly subordinate to the complainantand since in the course of the departmental enquiry,no objection was raised as regards the independenceof the EO, contention of petitioner not tenable.

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It is apparent that the Enquiry Officer was an officer of therank of Inspector. However, he was the SHO of PoliceStation Pahar Ganj while the complainant was the ACP,Darya Ganj. Though the Inspector was, in rank, lower to thecomplainant, he was not directly subordinate to the saidACP as they were posted in different areas. Importantly, thisissue of the Enquiry Officer not being independent in hisenquiry proceedings or of not being impartial was not raisedat all at any point when the appointment of the EnquiryOfficer was made or during the enquiry proceedings. Therewas no representation or request on the part of the petitionerfor a change of the Enquiry Officer on this ground. Thus,the contention of the learned counsel for the petitioner thatthe Enquiry Officer was not competent to conduct theenquiry proceedings is not tenable. The Tribunal has rightlydecided so. (Para 12)

[Gi Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. Y.S. Chauhan.

FOR THE RESPONDENTS : Mr. Sumit Chander.

RESULT: Petition Dismissed.

BADAR DURREZ AHMED, J. (ORAL)

1. This writ petition is directed against the orders dated 23.09.2010and 31.03.2011 passed by the Central Administrative Tribunal, PrincipalBench, New Delhi in O.A. No.1005/2010 and R.A. No.90/2011respectively.

2. The petitioner had been charged as under:

“I, Satish Kumar Bhardwaj, Inspector, Enquiry Officer, chargeyou, Const. Rajesh Kumar No-1899/C(PIS No.28900491) thatwhile posted at P.S. Daryaganj on 18.07.2007 you were detailedfor Motor Cycle patrolling duty on Motor Cycle No-DL-1SN-4256 having Call Sign CM-2 in the area of P.S. Darya Ganj.During the evening patrolling, ACT/Darya Ganj found that you

were picking and eating Chips etc. from a Rehri after parking theabove said motor cycle at Asaf Ali Road near Wine Shop andsome persons were also found consuming beer openly. Theabove said conduct of you, Const. Rajesh Kumar, No-1899/Cwas totally unwarranted, damage of reputation of Delhi Police inthe eyes of general public, disobedience of directions of seniorofficers and dereliction in the discharge of official duties.

The above act on the part of you, Const. Rajesh Kumar,No.1899/C, amounts to gross negligence, misconduct anddereliction in discharging you official duties, which render youliable to be punished under the provisions of Delhi Police Act,1978.”

3. Thereafter, enquiry proceedings were held and the Station HouseOfficer of Police Station Pahar Ganj, who was an Inspector rank officer,was appointed as the Enquiry Officer. He concluded his enquiry andsubmitted his report dated 06.01.2009 wherein the said Enquiry Officercame to the following conclusion:

“From the statements of PW-2 Const. Subhash No.728/C andPW-3 H.Ct. Madhu Bala no.2206/C it is clear that Const. RajeshKumar No.1899/C (PIS No.28900491) was on Motor Cyclepatrolling duty in the area of P.S. Daryaganj from 9 am to 9 p.m.The Duty Officer has proved by producing the D.D. Entries thatthe delinquent had departed for patrolling on motor cycle no.Dl-1 S-N-4256 at 8:45 am vide DD No. 11B dated 18.07.2007 andhad returned to the police station at 9-15 p.m. vide DD No. -89-B. PW-6 Sh. Ashok Saxena, the then ACP/Daryaganj hascategorically stated that on 18-07-2007 t about 8-15/8-30 p.m.,he was checking the patrolling staff and going towards DelhiGate from Turkman Gate side. When he reached Asaf Ali Roadnear Wine Shop he saw that the people were consuming beer Ithe barandah near Wine Shop, Asaf Ali Road. Motor Cycle No.DL-1-S-N4256 was parked near the Wine shop, the helmet wasalso there on the Motor Cycle and cont. Rajesh Kumar No.1899/C (PIS No.8900491) was earing Namkeen after picking from theRehri. At that time Cont. Rajesh Kumar No.1899/C (PISNO.28900491) was on patrolling duty on motor cycle No. DL-

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1-SN-4256 with call sign Charlie Mike-2. The people wereconsuming Beer openly at the public place and instead of takinglegal action against them Const. Rajesh Kumar No.1899/C (PISNo.28900491) was picking Namkeen from the Rehri and eatingNamkeen. As such he directed Inspr. Ram Kumar, SHO/Daryaganjto lodge it in the Daily Diary and flashed a wireless message toCDCR regarding the suspension of Const. Rajesh Kumar No.1899/C. PW-5 Inspr. Ram Kumar, has supported the version of PW-6 by stating that Sh.Ashok Saxena, the then ACP/Daryaganj hadinformed him about the misconduct of the delinquent and he hadlodged the DD Entry to this effect. The plea of the delinquentthat legal action was not taken by the ACP/Daryaganj has statedin the cross examination that those persons had slipped awayfrom the spot seeing his gypsy. The plea of the delinquent thatat one stage Sh. Ashok Saxena had stated that the delinquentwas eating Namkeen. In fact Chips are also the Namkeen.Therefore, this plea of the delinquent does bear any weight. Thedelinquent has also taken the plea that it was the responsibilityof the Beat Staff. This plea is also irrelevant as the Police Officialon duty who is present at the place where any offence is beingcommitted is duty bound to take legal action. Since the delinquentwas present at that particular place he was duty bound to takelegal action into the matter. Further, the delinquent has pleadedthat Inspr. Ram Kumar SHO/Daryaganj had recorded the DDentry after the return of the delinquent to the Police Station. Thisplea is also irrelevant since the PW-5 Inspr Ram Kumar hadrecorded the DD Entry when the PW-6 Sh. Ashok Saxena hadinformed him about the act/misconduct of the delinquent afterreaching the Police Station. In view of the facts mentioned above,the charges against the delinquent Const. Rajesh Kumar No.1899/C (PIS No. 28900491) are proved beyond doubt.”

4. Thereafter, the Disciplinary Authority who is an officer of therank of Additional DCP passed a penalty order on 24.07.2009 wherebythe said Disciplinary Authority concurred with the findings of the EnquiryOfficer and imposed the punishment of withholding two annual incrementswithout cumulative effect. He also directed that the suspension period

257 258Rajesh Kumar Meena v. Commissioner of Police (Badar Durrez Ahmed, J.)

shall be deemed to be not spent on duty for all intents and purposes.

5. Being aggrieved by the said penalty order, the petitioner preferredan appeal to the Joint Commissioner of Police, Northern Range, Delhi,which was also dismissed by an order dated 11.12.2009.

6. Thereafter, the petitioner filed O.A. No.1005/2010 which wasdisposed of by the Tribunal by its order dated 23.09.2010. The Tribunalconcluded as under:

“6. We have given our careful consideration to the respectivesubmissions made by both the learned counsel for the parties.We have also perused the records of the case.

7. On a careful consideration, we do not find any force in theapplicant’s contention that there is no evidence against him. Strictrules of the evidence are not applicable to the departmental enquiry.The guilt of the delinquent officials is not required to be provedto the hilt. The disciplinary authority has taken the decision onthe basis of the inquiry report. There is indeed evidence to supportthe charge. The courts do not sit over the decisions of thedisciplinary authority in such cases unless the decisions of thedisciplinary authority and the appellate authority are perverse.The present case does not fall in the category of cases of noevidence. The applicant has not been able to point out any legalinfirmity in the decision taking process by the respondents. Thethrust of the applicant’s defence has been the failure on the partof ACP in apprehending the persons consuming liquor openly. Ithas been urged that had there been any truth in the allegationsagainst the applicant then the ACP who was accompanied by hisStaff Officer and the Driver ought to have at least apprehendedthe persons drinking Bear openly and could have taken actionagainst such persons. In the rejoinder as well as at the hearing,the learned counsel has vehemently contended that if the applicanthad failed to discharge his duties so had the ACP. We do nothave the case of the ACP before us. We are considering the caseof the applicant and not of the ACP. If the ACP had not takenany action against the aforesaid persons, it would be for therespondents to take an appropriate action on that aspect of the

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matter. Nevertheless it would not negate the allegations levelledagainst the applicant. The applicant’s contention that there is nomalafide on the part of the applicant as he had not taken anyundue advantage is not relevant as these are not the essentialconstituents of the misconduct alleged to have committed by himwhile discharging the official duties that renders him liable to bepunished under applicable rules.

8. Having given our careful consideration, we are of theconsidered view that the applicant has failed to make out anyground for relief. There is no merit in the application and OA isaccordingly dismissed. No order as to costs.”

7. Being aggrieved by the said order dated 23.09.2010 passed inO.A. No.1005/2010 the petitioner filed a writ petition before this courtbeing WP(C) No.232/2011. That was dismissed as not pressed by aDivision Bench of this court on 17.01.2011. The circumstances in whichthat order came to be passed are indicated in the order itself which isextracted below:

“1. Learned counsel for the petitioner states that certain issuesimpinging upon the competence of the Inquiry Officer as alsothe competence of the officer who has acted as the DisciplinaryAuthority which were argued before the Tribunal have not beendealt with by the Tribunal. Thus, counsel states that leave begranted to the petitioner to withdraw the writ petition with rightreserved to move an application before the Tribunal requiring theTribunal to decide on the issues which were raised, argued, butnot dealt with.

2. The writ petition is accordingly dismissed as not pressed.Needless to state if the petitioner were to file an applicationbefore the Tribunal pointing out that certain issues on whicharguments were advanced have not been dealt with by the Tribunalin the impugned order, the said application shall be decided asper law.” (underlining added)

8. Thereafter, the petitioner filed the said Review Application beingR.A. No.90/2011 wherein the impugned order dated 31.03.2011 has been

passed whereby the petitioner’s said Review Application has been rejected.The petitioner is before us, once again, against the said order dated31.03.2011.

9. It is clear from the above narration of facts that the only reasonwhy a Division Bench of this court had permitted the petitioner to file aReview Application before the Tribunal was because the learned counselfor the petitioner had stated that certain issues impinging upon thecompetence of the Enquiry Officer as also the competence of the officerwho acted as the Disciplinary Authority had been argued before theTribunal but had not been dealt with by the Tribunal. It is in this backdropthat the learned counsel for the petitioner had sought leave of this courtto withdraw the said writ petition with liberty to move an applicationbefore the Tribunal requiring the Tribunal to decide the issues whichwere raised, argued, but not dealt with.

10. The learned counsel for the petitioner stated that the issue ofcompetence of the Enquiry Officer and the Disciplinary Authority hadbeen raised as well as argued before the Tribunal in the first instance.However this is not borne out from the decision of the Tribunal dated31.03.2011. The Tribunal observed that although the point with regardto the Enquiry Officer being subordinate to the complainant who was anofficer of the rank of DCP had been raised in the O.A., the same hadnot been pressed at all at the hearing of the original application. This isabundantly clear from the observations of the Tribunal in paragraph 2 ofthe order dated 31.03.2011 which reads as under:

“2. The principal point taken by the applicant in the presentreview application is that he had contended in his originalapplication that the Inquiry Officer being subordinate of thecomplainant was under the influence of the complainant and assuch the enquiry was conducted in violation of principles ofnatural justice. This point though raised in the Original Applicationwas not at all pressed at the hearing of the application. We willrefer to this aspect in detail appropriately at a later stage.........”

(underlining added)

11. Even though the issue of competence of the Enquiry Officer

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had not been argued before the Tribunal in the first instance, the Tribunal,while considering the Review Application, has examined this aspect ofthe matter. This would be evident from the discussion in the impugnedorder dated 31.03.2011 which reads as under:

“5. Even as regards the competence of the Inquiry Officer isconcerned, it is seen that even though the Inquiry Officer wasa SHO yet he was not subordinate to the ACP, Daryaganj(Complainant). The Inquiry Officer in the present case was theSHO Paharaganj while the complainant was the A.C.P., DaryaGanj. Inquiries in respect of Constables are ordinarily conductedby Officers of the rank of Inspector. The concerned authoritywhile ordering inquiry against the applicant vide its Order dated9.1.2008, a copy of which is annexed to the original applicant asAnnexure A-4 was conscious of the fact and therefore, appointedSHO from a different division Police Station to conduct theenquiry. The Inquiry Officer was, thus, not subordinate to thecomplainant as alleged by the applicant. Subordinate in rank andsubordinate to someone are two different things, having differentconnotations. There is no warrant to say that an Officer of asubordinate rank will not act independently and impartiallyespecially when he is exercising judicial or quasi-judicial functionsthat are amenable to judicial review. Even if the applicant hadany apprehension in the matter on this count it was open to himto seek change of the Inquiry Officer on this ground. Interestingly,the applicant has not raised this point in any of his representationnor has he sought the change of Inquiry Officer on this ground.”

12. It is apparent that the Enquiry Officer was an officer of therank of Inspector. However, he was the SHO of Police Station PaharGanj while the complainant was the ACP, Darya Ganj. Though theInspector was, in rank, lower to the complainant, he was not directlysubordinate to the said ACP as they were posted in different areas.Importantly, this issue of the Enquiry Officer not being independent inhis enquiry proceedings or of not being impartial was not raised at all atany point when the appointment of the Enquiry Officer was made orduring the enquiry proceedings. There was no representation or requeston the part of the petitioner for a change of the Enquiry Officer on this

ground. Thus, the contention of the learned counsel for the petitioner thatthe Enquiry Officer was not competent to conduct the enquiry proceedingsis not tenable. The Tribunal has rightly decided so.

13. Insofar as the competency of the Disciplinary Authority isconcerned, the learned counsel for the petitioner has been fair in concedingthat he is not pressing the same inasmuch as the Disciplinary Authoritywas an officer of the rank of Additional DCP which is higher than therank of ACP, which was the rank of the complainant.

14. In view of the foregoing we do not find any infirmity in theimpugned order dated 31.03.2011 passed in R.A. No.90/2011. Insofar asthe other aspects pertaining to the order dated 23.09.2010 are concerned,the same no longer survive for consideration inasmuch as the writ petitionwas dismissed as not pressed as indicated in the High Court’s orderdated 17.01.2011.

15. Consequently, the writ petition has no merit and the same isdismissed. There shall be not order as to costs.

ILR (2012) 6 DELHI 262CS (OS)

SAT BHAN SINGH & ANR. ….PLAINTIFFS

VERSUS

MAHIP AT SINGH & ORS. ….DEFENDANTS

(V.K. JAIN, J.)

CS (OS) : 1385/2011 DATE OF DECISION: 31.08.2012

Code of Civil Procedure, 1908—Order 2 Rule 2—Order7 Rule 11—Plaintiffs filed suit seeking partition,declaration and permanent injunction—Defendant no.1 moved application U/O 7 Rule 11 seeking rejection

261 262Rajesh Kumar Meena v. Commissioner of Police (Badar Durrez Ahmed, J.)

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of plaint on ground that plaintiff had filed another suitclaiming injunction but did not claim relief of partitionin that suit, therefore, present suit for partition ofvery same property not maintainable. Held—If thecourse of action mentioned in the earlier suit affordeda basis for a valid claim, but did not enable theplaintiff to ask for any relief other than those heprayed for in that suit, the subsequent suit would notbe barred under Order 2 Rule 2.

It would thus be seen that Rule 2 of Order 2 of the Code ofCivil Procedure bars a subsequent suit only if it is in respectof the very same cause of action which was the subjectmatter of the previous suit. If the causes of action in the twosuits are separate and distinct, the aforesaid provision doesnot apply to the subsequent suit. The cause of action forfiling the previous suit was the threat alleged to have beenextended by the defendants in that suit to create third partyinterest in the suit land, to raise construction thereon and tohandover its possession to a third party. The cause ofaction for filing the present suit, however, is the failure of thedefendants to partition the suit land by metes and bounds,despite repeated requests from the plaintiffs. Therefore, itcannot be said that the present suit is based on the samecause of action on which the previously instituted suit wasbased. (Para 7)

Important Issue Involved: If the cause of actionmentioned in the earlier suit afforded a basis for a validclaim but did not enable the plaintiff to ask for any reliefother than those he prayed for in that suit, the subsequentsuit would not barred under Order 2 Rule 2 of the Code ofCivil Procedure.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFFS : Mr. Kirti Uppal, Sr. Advocate withMr. Atul Bandhu, Advocates.

FOR THE RESPONDENT : Mr. I.S. Saroha, Mr. Rakesh Ahlawatand Mr. Vinod Kumar, Advocatesfor D-1 & D 2.

CASES REFERRED TO:

1. M/s Fiitjee Ltd. & Anr. vs. Dr. Kanwal Sujit, RFA No.669/ 2003 decided on 09.07.2007.

2. Swamy Atmananda vs. Swami Bodhananda & Ors., 2005(3) SCC 734.

3. Krishna Pillai Rajasekharan Nair vs. Padmanabha PillaiAIR 2004 SC 1206.

4. Nanak Chand and Ors. vs. Chander Kishore and Ors.AIR1982 Delhi 520.

5. Sidramappa vs. Rajashetty and Ors., AIR 1970 SupremeCourt 1059.

6. Mst. Rukhmabai vs. Lala Laxminarayan and Ors. AIR1960 SC 335.

7. Mt. Bolo vs. Mt. Koklan, AIR 1930 PC 270.

RESULT: Application disposed of.

V.K. JAIN, J.

IA No. 19580/2011 (O. 7 R. 11 r/w O. 2 R. 2 CPC)

1. This is a suit for partition, declaration and permanent injunction.The case of the plaintiffs is that they along with the defendants are theco-owners of the suit land, which is situated in revenue estate of villageBindapur in Delhi. The plaintiffs claim to be in joint physical possessionof the suit property. This is also their case that their request to thedefendants to either partition the suit property by metes and bounds orto sell the same and divide the sale proceeds has not been acceded to.The plaintiffs have accordingly sought partition, claiming half share in thesuit land. They have also sought an injunction, restraining the defendants

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from committing waste or changing the character of the aforesaid landas also from selling, alienating or otherwise transferring the same.

2. IA No.19580/2011 has been filed by defendant No. 1 underOrder 7 Rule 11 of the Code of Civil Procedure, seeking rejection of theplaint on two grounds. The first ground taken in the application is thatthe plaintiffs had filed Suit No. 09/1999, claiming injunction, but, did notclaim the relief of partition in that suit and, therefore, the present suit forpartition of the very same property, which was the subject matter of SuitNo. 09/1999, is not maintainable being barred by Order 2 Rule 2 of theCode of Civil Procedure. The second plea taken in the application is thatthe suit is barred by limitation.

3. As regards the first contention, admittedly, the earlier suit filedby the plaintiffs was for grant of injunction. The following two reliefswere claimed in the previous suit:-

“(a) the defendants, their agents, associates, employees,representative, attronies, and persons claiming through them maykindly be restrained by way of Prohibitory injunction in perpetualform from selling, transferring, mortgating or creating third partyinterest in any manner in respect of the agriculture land bearingKhasra Nos. 116(4-12), 201(1-15), 540(3-11), 541 (6-10), 542(0-40), 543 (4-12), 544(2-09), 593(2-07), 594 (6-12), 679 (2-01) situated in the revenue estate of Village Bindapur, TehsilMehrauli, New Delhi and a decree to that effect;

(b) the defendants, their agents, associates, employees,representatives, attronies and persons claiming through them maykindly be restrained by way of Prohibitory injunction in perpetualform from digging, raising any construction, super-structure andusing the land for non-agriculture use and damaging the holdingof agriculture land mentioned in prayer para (a) above and adecree to that effect;”

4. It was alleged in para 11 of the plaint of that suit that defendantNo. 6 in that suit, without formal partition and division of share, hadstarted construction on 29.12.1988 at a large scale and had collectedbuilding material to raise R.C.C. structure upon the land. It was further

alleged that the other defendants had also joined hands with defendantNo.6. It was also alleged in para 10 of the plaint that defendants hadconfessed on 29.12.1998 to sell the entire land by creating third partyinterest and to handover the possession to the prospective buyers.

5. Order 2 Rule 2 of the Code of Civil Procedure, to the extent itis relevant, provides that every suit shall include the whole of the claim,which the plaintiff is entitled to make in respect of the cause of actionand where he omits to sue in respect of any portion of his claim, he shallnot afterwards sue in respect of the portion so omitted. It further providesthat a person entitled to more than one reliefs in respect of the samecause of action may sue for all or any of such reliefs; but if he omits,except with the leave of the Court, to sue for all such reliefs, he shallnot afterwards sue for any relief so omitted.

6. Order 2 Rule 2 of the Code of Civil Procedure came to beconsidered by me in M/s Fiitjee Ltd. & Anr. v. Dr. Kanwal Sujit, RFANo. 669/ 2003 decided on 09.07.2007 and the following view was taken:-

“Order II Rule 2 of the Code of Civil Procedure is based on theprincipal that the defendant should not be twice waxed for oneand same cause of action. This Rule does not preclude secondsuit based on a distinct and separate cause of action, therefore,before this Rule can be invoked, two conditions need to besatisfied firstly that the previous suit as well as subsequent suitshould arise out of the same cause of action and secondly thatthey must be between the same parties. The requirement of lawthus is that the whole of the claim in respect of one cause ofaction should be included in one suit. Splitting of the claimsbased on the same cause of action is prohibited.

7. As held by the Supreme Court in Swamy Atmananda v.Swami Bodhananda & Ors., 2005 (3) SCC 734, a cause ofaction comprises every fact which traversed it would be necessaryfor the plaintiff to prove in order to support his right to a judgmentof the Court. In other words it is a bundle of facts which takenthat the law applicable to those facts gives a right to the plaintiffto claim a relief against the defendant.

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In Mohammad Khalil Khan and Others, AIR (1949) PrivyCouncil 78, the following principles were laid down to ascertainwhether the subsequent suit was barred by Order 2 Rule 2 of theCode of Civil Procedure or not.

(1) The correct test in cases falling under O. 2 R. 2, is “whetherthe claim in the new suit is in fact founded upon a cause ofaction distinct from that which was the foundation for the formersuit,”

(2) The cause of action means every fact which will be necessaryfor the plaintiff to prove if traversed in order to support his rightto the judgment.

(3) If the evidence to support the two claims is different, thenthe causes of action are also different.

(4) The causes of action in the two suits may be considered tobe the same if in substance they are identical.

(5) The cause of action has no relation whatever to the defencethat may be set up by the defendant nor does it depend upon thecharacter of the relief prayed for by the plaintiff. It refers....tothe media upon which the plaintiff asks the Court to arrive at aconclusion in his favour.”

In Sidramappa v. Rajashetty and Ors., AIR 1970 Supreme Court1059, the Apex Court was of the view that if the cause of actionmentioned in the earlier suit afforded a basis for a valid claim but did notenable the plaintiff to ask for any relief other than those he prayed forin that suit, the subsequent suit would not be barred under Order 2 Rule2 of the Code of Civil Procedure.

7. It would thus be seen that Rule 2 of Order 2 of the Code of CivilProcedure bars a subsequent suit only if it is in respect of the very samecause of action which was the subject matter of the previous suit. If thecauses of action in the two suits are separate and distinct, the aforesaidprovision does not apply to the subsequent suit. The cause of action forfiling the previous suit was the threat alleged to have been extended bythe defendants in that suit to create third party interest in the suit land,

to raise construction thereon and to handover its possession to a thirdparty. The cause of action for filing the present suit, however, is thefailure of the defendants to partition the suit land by metes and bounds,despite repeated requests from the plaintiffs. Therefore, it cannot be saidthat the present suit is based on the same cause of action on which thepreviously instituted suit was based.

8. In Nanak Chand and Ors. v. Chander Kishore and Ors.AIR1982 Delhi 520, the plaintiffs in the suit served a notice for partitionand thereafter filed a suit, restraining the defendants from transferringjoint family properties. The suit for injunction was dismissed. When hefiled the suit for partition, an objection was taken that the suit was barredby Order 2 Rule 2 of the Code of Civil Procedure. The contention of thedefendants in that suit was rejected holding that since the nature of theearlier suit and the subsequent suit being different, there could be noquestion of such a bar under Order 2 Rule 2 of CPC. This judgmentwould squarely apply to the case before this Court.

9. As regards the second contention, as far as Article 110 ofLimitation Act is concerned, that would not apply to the present casebecause the plaintiffs claim to be in joint possession of the suit land andthis is not their case that they have been excluded from the joint property.The suit would, therefore, be governed by Article 113 of Limitation Act,which prescribes a limitation period of three years from the date whenthe right to sue accrues.

10. The question when the right to sue accrues came up forconsideration before the Judicial Committee in Mt. Bolo v. Mt. Koklan,AIR 1930 PC 270, wherein the Judicial Committee, inter alia, observedas under:-

“There can be no ‘right to sue’ until there is an accrual of theright asserted in the suit and its infringement, or at least a clearand unequivocal threat to infringe that right, by the defendantagainst whom the suit is instituted.”

The above-referred principle was approved by Supreme Court inMst. Rukhmabai v. Lala Laxminarayan and Ors. AIR 1960 SC 335,where the Court enunciated the legal position in this regard as under:-

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“The legal position may be briefly status thus: The right to sueunder Article 120 of the Limitation Act accrues when thedefendant has clearly and unequivocally threatened to infringethe right asserted by the plaintiff in the suit. Every threat by aparty to such a right, however, ineffective and innocuous it maybe, cannot be considered to be clear and unequivocal threat toas to compel him to file a suit. Whether a particular threat givesrise to a compulsory cause of action depends upon the questionwhether that threat effectively invades or jeopardizes the saidright.”

In Krishna Pillai Rajasekharan Nair v. Padmanabha Pillai AIR2004 SC 1206, the Apex Court observed that for a suit for partition, thestarting point of limitation isùwhen the right to sue accrues, that is, whenthe plaintiff has notice of his entitlement to partition being denied. Thisissue also came up for consideration before the Division Bench in thecase of Nanak Chand (supra). In that case, the plaintiff had served anotice for partition upon the defendants on 17.05.1963. Computed fromthat date, the period of limitation expired on 17.05.1969. The suit, however,was filed on 23.07.1969. Relying upon the aforesaid decisions of thePrivy Counsel and Supreme Court, the Division Bench held that the rightof partition sprang into existence when the notice of severance anddemand for partition was served, but, the right to sue did not accrue untilthe defendant infringed or threatened to infringe that right.

11. In the case before this Court, the plaintiffs in para 15 of theplaint, on which reliance was placed by the learned counsel for theapplicant, stated as under:-

“That the cause of action for filing the suit arose in 18.08.86when the father of the plaintiffs requested to Defendants todivide the properties & a family settlement was also arrived butthe same was not acted upon. The plaintiffs again requested thedefendants orally subsequently on various occasions but of noconsequence. The cause of action for filing the suit further arosewhen the compensation for land acquisition was taken bydefendants. The cause of action for filing the suit further arosewhen the defendants also took the alternative plot in violation of

the family settlement. The cause of action for filing the suitfurther arose on 30.12.1998 when the Plaintiffs filed the suit forinjunction before the civil court; the cause of action for filing thesuit further arose on various dates when the suit for injunctionbefore the civil court was heard on various dates we.f. 31.12.98to 18.05.11. The cause of action for filing the suit further aroseon various dates when the Plaintiffs had to institute the proceedingsof contempt against the Defendants. The cause of action forfiling the suit further arose when during the pendency of the suitin the court below the Plaintiffs requested to partition the propertiesbut the same was not acceded to. This is continuous cause ofaction which arises from day to day and continues to arise tillfinal decree is made.”

12. It would thus be seen that nowhere have the plaintiffs statedthat the defendants had unequivocally refused to partition the suit land bymetes and bounds. The right to sue in terms of Article 113 of LimitationAct did not accrue to the plaintiffs merely on account of the defendantsnot responding to their request to partition the suit property. Such a rightin terms of Article 103 of Limitation Act would have accrued only uponthe defendants expressly denying partition by metes and bounds or doingsuch other act as would amount to a clear and unequivocal threat toinfringe the right which the plaintiffs claim in the suit land. As observedby the Division Bench in the case of Nanak Chand (supra), where thereare successive invasions or denials of a right, the right to sue accruesonly when there is a clear and unequivocal threat to infringe the rightasserted by the plaintiff.

It is settled proposition of law, while considering an application forrejection of the plaint, the Court can take into consideration only theaverments made in the plaint and the documents filed by the plaintiff.Neither the defence taken in the written statement nor the documentsfiled by the defendants can be considered at this stage. In my view, itcannot be said with certainty, merely from the averments made in theplaint that the right to sue to the plaintiff in terms of Article 113 ofLimitation Act had accrued more than three years before the suit wasfiled. Therefore, it cannot be said that from the averments made in theplaint, the suit is patently barred by limitation.

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13. I take note of the fact that in para 10 of the previously institutedsuit, the plaintiffs had, inter alia, alleged that the defendants in that suithad confessed to sell the entire land by creating third party interest andto handover possession to the prospective buyers. But, at this stage,without recording of evidence, it is difficult to say, with a fair amountof certainty, as to whether such act attributed to the defendant, amountedto a clear and unequivocal threat, so as to giving rise to a compulsorycause of action and compel the plaintiffs to file a suit for partition andwhether such threat effectively invaded or jeopardized the right, whichthe plaintiffs claim in the suit land, or not. A final view as to what wasthe extent of the alleged threat when it was made and what was itsgravity and consequence, can be taken only at the time of final disposalof the suit. It would not be appropriate to reject the plaint on the groundof limitation, but, the issue of limitation needs to be kept alive, to bedecided at an appropriate stage.

14. For the reasons stated hereinabove, the application is herebydismissed. The observations made in this order, however, would notaffect the final decision of the suit and it would be open to the defendants,to agitate the plea of limitation, at the time of final disposal of the suit.

The application stands disposed of.

ILR (2012) 6 DELHI 272CS (OS)

SURESH SRIVASTAVA ….PLAINTIFF

VERSUS

SUBODH SRIVASTAVA AND ORS. ….DEFENDANTS

(VALMIKI J. MEHT A, J.)

CS (OS) : 1351/2002 & DATE OF DECISION: 31.08.2012CS (OS) : 1013/2004

Code of Civil Procedure, 1908—Order 12 Rule 6—Limitation Act, 1963—Article 59—Specific Relief Act,1963—Section 31—Plaintiff filed suit seeking partitionof suit property situated in Vivek Vihar, New Delhii—Defendant no. 2, brother of plaintiff and defendant no.1 moved application u/o 12 Rule 6 Plaintiff supportedthe application whereas defendant no. 1 contestedthe same—As per plaintiff, he, defendant no. 2 anddefendant no. 3 (the father) had entered intoagreement recording that property was joint propertyof all the parties—Said agreement was followed byfamily settlement stating that all parties had 1/4thshare in suit property and an affidavit of defendantno. 1 of same date to same effect—Defendant no. 1did not deny execution of said documents but allegedmisrepresentation and legal ineffectiveness ofdocuments which required trial and could not bedisposed of by applying provisions of Order 12 Rule 6.Held—There are two types of documents; one is voidand second is voidable documents. For voiddocuments, any suit for cancellation u/s 31 of SpecificRelief Act is not required to be filed—whereas voidabledocuments have to be cancelled as per Section 31 ofthe act and a suit could be filed within 3 years as per

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Article 59 of Limitation Act.

A reading of the aforesaid paras of the family settlementdeed shows that there is no specific language that it is onlyand only by virtue of the family settlement deed dated3.2.1994 that the rights have been created. The languageof the document shows mentioning of existing rights. Forexample, in the first part aforesaid, the expression used is“he has only a limited un-specified 1/4th share ......” this isa language by reference to the past transactions and not ofcreating rights under the subject document dated 3.2.1994.Even in the next para, the language is “that the abovementioned property is a joint property in the name of all theabove mentioned members of the family and shall continueto remain so .....”. Once again this language is a referenceto an existing state of affair and not for a new state of affaircoming into existence by virtue of the family settlementdated 3.2.1994. (Para 13)

Important Issue Involved: There are two types ofdocuments; one is void and second is voidable documents.For void documents, any suit for cancellation u/s 31 ofSpecific Relief Act is not required to be filed, whereasvoidable documents have to be cancelled as per Section 31of Act and a suit could be to be filed within 3 years as perArticle 59 of Limitation Act.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFF : Mr. N.K. Khetrapal. Adv.

FOR THE DEFENDANT : Mr. Alok Kumar with Mr. NeerajGupta, Advs. For D-1. Mr. VimalSrivastava, Adv. for D-2.

CASES REFERRED TO:

1. Prem Singh & Ors. vs. Birbal & Ors., 2006 (5) SCC353.

2. Roshan Singh and Ors. vs. Zile Singh, AIR 1988 SC 881.

3. Kale & Ors. vs. Dy. Director of Consolidation & Ors.AIR 1976 SC 807.

RESULT: Suit dismissed.

VALMIKI J. MEHTA, J. (ORAL)

IA No.7098/2011(u/O.12 R.6 CPC)

1. This application under order 12 Rule 6 CPC has been filed by thedefendant no.2 in a suit for partition with respect to the suit propertybearing no.C-194, Vivek Vihar, New Delhi-95. The property is constructedon two floors i.e. ground floor and first floor and is situated on a plotof land admeasuring 220 sq. yds. There were originally four parties tothe suit. Plaintiff and the defendants no. 1 and 2 are brothers, the defendantno.3 was the father of the plaintiffs and defendants no. 1 and 2, whoexpired admittedly intestate during the pendency of the suit. The plaintiffsupports the application of the defendant no.2. The application is onlyopposed by the defendant no.1.

2. As per the plaint though the suit property stood in the recordsof the DDA in the name of the defendant no.1, however, all the partiesto the suit i.e. the brothers and the father had entered into an agreementon 27.9.1978 recording the fact that the different parties had investeddifferent amounts in this property and therefore this property is a jointproperty of all the parties. The agreement dated 27.9.1978 was followedby two other documents, one being a family settlement dated 3.2.1994in which it is stated that all the parties have a 1/4th share in the suitproperty, and an affidavit of the defendant no.1 of the same date to thesame effect.

3. Defendant no.1 has filed reply to the present application reiteratingthe stand in the written statement. In the written statement, the followingdefences are raised, and which are the defences which have been arguedbefore me, and in addition an aspect that the suit requires trial afterframing of issues on 30.8.2005 and therefore the application under Order12 Rule 6 CPC should be dismissed. The defences which have beenraised by the defendant no.1, contesting non-applicant, in his writtenstatement are as under:-

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i) The agreement dated 27.9.1978 was got signed in good faithfrom the defendant no.1 because of representation made by theplaintiff that the same will help for house tax purposes.

ii) The family settlement dated 3.2.1994 cannot be looked into inlaw because it amounts to a partition deed, and therefore in theabsence of the same being stamped and registered, no rights canbe created thereunder. Similar is the stand even with respect tothe earlier agreement dated 27.9.1978.

iii) The suit property stands in the name of the defendant no.1and therefore without a properly stamped document rights in animmovable property cannot be transferred by means of thedocumentation dated 27.9.1978 and 3.2.1994.

4. Before proceeding ahead, I must note that the execution of thedocuments dated 27.9.1978 and 3.2.1994 is not denied by the defendantno.1. The issue is only of alleged misrepresentation and of legalineffectiveness of such documents.

5. In order to appreciate the plea of misrepresentation as urged bythe defendant no.1, it is necessary to reproduce para 6 of the preliminaryobjections in the written statement of the defendant no.1 and which readsas under:-

“6. The plaintiff is an Income Tax Practitioner. He completed hislaw studied in 1969 or thereabout. He started his taxation practicein 1970. The other parties to the suit had faith in the plaintiff.The plaintiff handled the financial affairs of Defendant No.1. Itwas on his advise and representation that it was convenient toexecute certain documents which were required for property taxand other purposes, that documents included (a) alleged deed ofagreement dated 27.9.1978 (b) alleged family settlement deed of3.2.1994 (c) alleged affidavit of 28.12.1994 and (d) letter toDDA for transfer of suit property in the joint name of partieswere executed.

That the alleged documents were got prepared by the plaintiffand have been filed by him alongwith the plaint. The saiddocuments were signed by the answering defendant on the

representation of the Plaintiff that they were required for propertytax and other taxation matters and there was never any intentionto transfer or to share the title of the suit property with any otherparty to this suit.

It was on the asking of the Plaintiff on the alleged reasoningof tax benefit that the Defendant No.1 wrote a letter to the DelhiDevelopment Authority for including the Plaintiff’s name and thenames of Defendants No.2 and 3 in the title papers of the suitproperty. However, the said matter was never followed up andthe title continues to be vested in the answering defendantexclusively.”

6. The plea of the defendant no.1 therefore is that he signed theagreement dated 27.9.1978 in good faith for property tax purpose. Itmust be however noted that the defendant no.1 has not taken up a standin the written statement that he never had with him even a photocopy orcopy of this agreement dated 27.9.1978. Similarly in the written statementit is not stated that the defendant no.1 did not have copies of the familysettlement dated 3.2.1994. Therefore, from the date of execution of thesedocuments i.e. from 27.9.1978 and 3.2.1994, copies of these documentsare very much with the defendant no.1.

7. Let us now examine the contents of the documents dated27.9.1978 and 3.2.1994. So far as the agreement dated 27.9.1978 isconcerned, it mentions the factum with respect to the different brothershaving invested different amounts in the suit property and therefore theproperty is declared as a joint property of all the parties to the agreement.This document further specifically provides that the transfer in the nameof the different brothers as on that date i.e 27.9.1978 was not possiblebecause there are amounts outstanding to DDA. The agreement recitesthat when it will be possible, the house would be transferred in the jointnames of all the parties. The agreement further provides that the defendantno.1 will not be entitled to sell, mortgage or dispose of etc the suitproperty and nor any portion of the property will be given on rentwithout the consent of other parties to the suit.

8. So far as the family settlement deed dated 3.2.1994 is concerned,the said family settlement crystallizes the shares of each of the parties as

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1/4th, inasmuch as the earlier document dated 27.9.1978 only mentionsthe property as a joint property without specifying the specific shares ofeach of the parties.

9. At this stage, I must before proceeding ahead deal with thecontention raised on behalf of the defendant no.1 that once issues havebeen framed, and there is a plea of misrepresentation, trial must necessarilytake place, and the suit cannot be disposed of by applying the provisionsof Order 12 Rule 6 CPC. In my opinion, this argument which is raisedon behalf of the defendant no.1 is wholly misconceived inasmuch as fordisposing of the present application under Order 12 Rule 6 CPC, I amproceeding on the basis that there has been misrepresentation upon thedefendant no.1. The question is that even if there is a misrepresentationupon the defendant no.1, yet, is the trial necessary? I must note that thisplea of invalidity of the documents dated 27.9.1978 and 3.2.1994 hasbeen raised for the first time after filing of the present suit and throughthe written statement of the defendant no.1 in the year 2002. From 1994till 2002, the family settlement deed dated 3.2.1994 has never beenchallenged or endeavoured to be set aside in any legal proceedings.Article 59 of the Limitation Act, 1963 is relevant at this stage to showthat challenge to the documents dated 27.9.1978 and 3.2.1994 was clearlytime barred as on the date of filing of the written statement by thedefendant no.1. I may note that judgment will also result in dismissal ofthe connected suit being CS(OS) 1013/2004 where the defendant no.1 isthe plaintiff in that suit for possession against the plaintiff and defendantno.2 in this suit and who are the defendants in that suit. Article 59 ofthe Limitation Act, 1963 reads as under:

Description of suit Period of Time from whichlimitation period begins to run

59. To cancel or set aside Three years When the facts entitlingan instrument or decree the plaintiff to have theor for the rescission of instrument or decree a contract cancelled or set aside or

the contract rescindedfirst become known tohim.

10. As per the aforesaid Article 59, if a person seeks cancellationof a document, he must file a suit within three years of having knowledgeof the document which is sought to be cancelled. I have already statedabove that the defendant no.1 is very much aware of the execution ofthe documents dated 27.9.1978 and 3.2.1994 from above very datesinasmuch as the documents are admittedly signed by the defendant no.1,copies of such documents are with him and the only stand is of allegedmisrepresentation. Besides the fact that CS(OS) 1013/2004 is being decidedby this judgment and in which suit the defendant no.1 is the plaintiff, inlaw in a partition suit, every person is both a plaintiff and a defendant.A person is a plaintiff to the extent of the share which comes to him andis a defendant to the extent of the remaining shares of the others. Thedefendant no.1 cannot by means of the written statement or the suitCS(OS) 1013/2004 seek cancellation of the documents of the year 1994in the year 2002. Such a challenge in the year 2002 is clearly barred bytime as per the Article 59 of the Limitation Act, 1963.

11. The Hon’ble Supreme Court in the case of Prem Singh & Ors.vs. Birbal & Ors., 2006 (5) SCC 353, has dealt with the provisions ofSection 31 of the Specific Relief Act, 1963 and Article 59 of the LimitationAct, 1963. Section 31 of the Specific Relief Act, 1963 provides theentitlement to seek cancellation of the documents. The Supreme Court inthe case of Prem Singh (supra) has held that there are two types ofdocuments; one is a void document and the second is a voidable document.So far as the void documents are concerned, for such documents thereneed not be filed any suit for cancellation under Section 31 of theSpecific Relief Act, 1963, however so far as the voidable documents areconcerned such documents have to be got cancelled as per Section 31of the Specific Relief Act, 1963. Since the plea of the defendant No.1is that the documents in question to which he is a party were got signedon misrepresentation, the documents are therefore only voidable and notvoid, the defendant no.1 was therefore bound to seek cancellation ofsuch documents within three years as per Article 59 of the LimitationAct, 1963 so that no rights could flow from these documents. Havingnot so done the agreement dated 27.9.1978 and the family settlementdated 3.2.1994 achieve finality, subject to issues of registration andstamping.

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12. Of course, I would agree with the counsel for the defendantthat the agreement dated 27.9.1978, is bad for want of stamping andregistration inasmuch as the effect of such document is to extinguish theright of the defendant no.1 in the suit property, and create rights infavour of the other parties to the suit in the suit property, however, thisargument will not sustain so far as the family settlement deed dated3.2.1994 is concerned. In order to appreciate that the family settlementdeed is in fact a settlement deed and not a partition deed, I would liketo reproduce the relevant paras of the family settlement deed, which readas under:

“That it is mutually agreed upon by the party of the first part thathe has only a limited un-specified 1/4th share in the above saidproperty and Sh. Ishwar Dayal Srivastava is also having un-specified 1/4th share in the above said property and Sh. VinodBhushan Srivastava is also having 1/4th un-specified share in theabove said property and Sh. Suresh Kumar Srivastava is alsohaving 1/4th share un-specified in the above said property.

That it is mutually agreed upon between the parties to thisagreement that the above mentioned property is a joint propertyin the name of all the above mentioned members of the familyand shall continue remain so and in the event of sale, mortgageand disposing off in any other manner the above said property,the consent of all the four members of this agreement is necessaryand no member of this agreement can never dispose-off, sale ormortgage the above said property with the consent of all theother signatories to this family agreement.”

13. A reading of the aforesaid paras of the family settlement deedshows that there is no specific language that it is only and only by virtueof the family settlement deed dated 3.2.1994 that the rights have beencreated. The language of the document shows mentioning of existingrights. For example, in the first part aforesaid, the expression used is “hehas only a limited un-specified 1/4th share ......” this is a language byreference to the past transactions and not of creating rights under thesubject document dated 3.2.1994. Even in the next para, the language is“that the above mentioned property is a joint property in the name of all

the above mentioned members of the family and shall continue to remainso .....”. Once again this language is a reference to an existing state ofaffair and not for a new state of affair coming into existence by virtueof the family settlement dated 3.2.1994.

14. The Supreme Court in the judgment reported as Roshan Singhand Ors. Vs. Zile Singh, AIR 1988 SC 881 has held the followingdocument to be a family settlement:-

“Today after discussion, it has been mutually agreed and decidedthat house rihaishi (residential) and the area towards its Westwhich is lying open i.e., the area on the back of the rihaishi(residential) house has come to the share of Chaudhary PooranSingh Zaildar.

2. House Baithak has come to the share of Chaudhary Soonda.The shortage in area as compared to the house rihaishi and theopen area referred to, will be made good to Chaudhary Sundafrom the field and gitwar in the Eastern Side.

3. Rest of the area of the field and gitwar will be half and halfof each of co-sharers. The area towards West will be given toChaudhary Pooran Singh and towards East will be given toChaudhary Soonda.

4. Since house rihaishi has come to the share of ChaudharyPooran Singh, therefore, he will pay Rs. 3,000/- to ChaudharySoonda.

5. A copy of this agreement has been given to each of the co-sharers.

Sd/- (in Hindi) D/3-8-1955Pooran Singh Zaildar L. T. I.

Ch. Soonda.”

If the Supreme Court does consider the document in the aforesaidjudgment to be a family settlement, a fortiori the family settlement deeddated 3.2.1994 in the present case is a family settlement.

15. I must at this stage state that Courts have repeatedly observedthat family settlements which settle the disputes between the parties,

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bring family peace, and therefore peace in the community must beendeavoured to be upheld and not to be set aside. I think this rationalesquarely applies in the facts of the present case. That a family settlementis not required to be stamped or registered is now well settled law andreference can be made to the celebrated judgment in the case of Kale& Ors. Vs. Dy. Director of Consolidation & Ors. AIR 1976 SC 807.

16. The up-shot of the above discussion is as under:-

(i) The challenge by the defendant no.1 to the family settlementdeed dated 3.2.1994 is barred as per Article 59 of the LimitationAct, 1963 read with the judgment of the Supreme Court in thecase of Prem Singh (supra). Once the challenge to the same isbarred, even if we take the case of misrepresentation, as urged,true, yet, the document being the family settlement deed dated3.2.1994 is final.

(ii) Once the family settlement deed dated 3.2.1994 is final, eachof the parties will have a 1/4th share in the suit property.

(iii) Since the father Sh.Ishwar Dayal Srivastava has died, andadmittedly intestate, the three brothers who are now the remainingthree parties to the suit will have a 1/3rd share each in the suitproperty.

17. I must note that the legislative intendment behind the Order 12Rule 6 CPC is to see that there should not be unnecessary delay in theconclusion of the suit once certain admitted facts emerge on recordwhich can lead to disposal of the suit. The stand of the defendant no.1that the parties must necessarily undergo rigours of a trial and tribulationsof decades of litigation has to be undergone by the plaintiff and defendantno.2, is an argument , I reject in limine in view of the intendment ofOrder 12 Rule 6 CPC.

18. In view of the above, application under Order 12 Rule 6 CPCis allowed. Suit of the plaintiff is decreed for partition by passing ofpreliminary decree declaring that each of the plaintiff and the defendantsno. 1 & 2 have a 1/3rd undivided interest in the suit property. Let thepreliminary decree be drawn up accordingly.

281 282Suresh Srivastava v. Subodh Srivastava (Valmiki J. Mehta, J.)

19. Let the parties now file suggestions with respect to eitherphysical partitioning of the property or if according to them the propertyhas to be sold, then, mode in which the property is to be sold, and inwhat manner.

20. List for further direction on 27th November, 2012.

21. The dates of 10.1.2013 before the Joint Registrar and 11.9.2012before the Court stand cancelled.

CS(OS) No.1013/2004

22. In view of the detailed judgment passed by me in CS(OS)No.1351/2002 allowing the application under Order 12 Rule 6 CPC, sinceit is held that all the three sons of Sh.Ishwar Dayal Srivastava and whoare the parties in the CS(OS) No.1351/2002 would be 1/3rd owners ofthe suit property, the present suit of Sh.Subodh Bhushan Srivastava isliable to be dismissed, more so because Article 59 of the Limitation Act,1963 will squarely apply to Sh.Subodh Bhushan Srivastava’s case whois the plaintiff in this case. The suit is accordingly dismissed in terms ofthe judgment in CS(OS) No.1351/2002. Decree sheet be prepared.

23. The date of 10.1.2013 before the Joint Registrar stands cancelled.

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ILR (2012) 6 DELHI 283CS (OS)

ASHA RANI GUPTA ….PLAINTIFF

VERSUS

RAJENDER KUMAR & ORS. …..DEFENDANTS

(V.K. JAIN, J.)

CS (OS) NO. : 288/2012 DATE OF DECISION: 03.09.2012IA. NO.2233/12, 4380/12

Code of Civil Procedure, 1908—Order 39 Rule, 1, 2 &4—Plaintiff instituted suit seeking permanent andmandatory injunction against defendants averringplaintiff was owner of commercial and residentialproperty—His father-in-law had let out two shops outof the property to father of defendants—Defendantscompletely encroached upon common verandah andcommon toilet in property which was meant for commonuse of occupants of both shops on ground floor aswell as first floor—Acts of defendants had causedimminent danger to plaintiff—He also initiatedapplication seeking interim restrain orders andmandatory injunction against defendants. Held—Grantof mandatory injunction during pendency of suit isessential and equitable relief which ultimately rests inthe sound judicial discretion of the court to beexercised in the light of facts and circumstances ineach case. No reason why plaintiff should continue tosuffer by not allowing her to have free access toverandah toilet—In facts of this cause, temporarymandatory injunction granted.

In Dorab Cawasji Warden vs. Coomi Sorab Warden,1990 SCC (2) 117 JT 1990 (1) 199, Supreme Court inter

alia observed and held as under with respect to grant ofmandatory injunctions during pendency of the suit:-

“14. The relief of interlocutory mandatory injunctionsare thus granted generally to preserve or restore thestatus quo of the last non-contested status whichpreceded the pending controversy until the finalhearing when full relief may be granted or to compelthe undoing of those acts that have been illegallydone or the restoration of that which was wrongfullytaken from the party complaining. But since thegranting of such an injunction to a party who fails orwould fail to establish his right at the trial may causegreat injustice or irreparable harm to the party againstwhom it was granted or alternatively not granting of itto a party who succeeds or would succeed mayequally cause great injustice or irreparable harm,courts have evolved certain guidelines. Generallystated these guidelines are :

(1) The plaintiff has a strong case for trial. That is, itshall be of a higher standard than a prima facie casethat is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or seriousinjury which normally cannot be compensated in termsof money.

(3) The balance of convenience is in favour of theone seeking such relief.

15. Being essentially an equitable relief the grant orrefusal of an interlocutory mandatory injunction shallultimately rest in the sound judicial discretion of theCourt to be exercised in the light of the facts andcircumstances in each case. Though the aboveguidelines are neither exhaustive or complete orabsolute rules, and there may be exceptionalcircumstances needing action, applying them as pre-

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requisite for the grant or refusal of such injunctionswould be a sound exercise of a judicial discretion.”

(Para 11)

Important Issue Involved: Grant of mandatory injunctionduring pendency of suit is essential and equitable relief whichultimately rests in the sound judicial discretion of the courtto be exercised in the light of facts and circumstances ineach case.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFF : Mr. Sandeep Sethi, Sr. Advocateswith Mr. Jeewash Nagrath, Mr.Vijayendra Kumar and Mr. DhruvKapoor, Advs.

FOR THE RESPONDENT : Mr. S.K. Sharma, MR. Hari Shankerand Mr. Shivshanker Panicker,Advocates for Defendant no. 1 Mr.Arun Vohra, Advocate for DefendantNo. 2.

CASE REFERRED TO:

1. Dorab Cawasji Warden vs. Coomi Sorab Warden, 1990SCC (2) 117 JT 1990 (1) 199.

RESULT: Application disposed of Temporary mandatory injunction granted.

V.K. JAIN, J.

IA No.2233/2012, IA No. 3383/2012 (O. 39 R. 1&2 CPC), and IANo.4380/2012 (O. 39 R. 4 CPC)

1. The plaintiff is the owner of property bearing No.7, JorbaghMarket, New Delhi. The aforesaid property is a commercial-cum-residentialproperty and has two shops, two open spaces, a verandah and a toileton the ground floor. One of the two shops, which is shown in red colour

in the site plan filed by the plaintiff, was let out to the father of defendants1 to 3, namely, late Shri Phool Chand, by Shri Daulat Ram Gupta, father-in-law of the plaintiff at the rent of Rs 175/- per month. After about 2+years, backyard/open space, shown in yellow colour, was also let out tohim at the rent of Rs 85/- per month. The case of the plaintiff is thatthe common verandah and common toilet, which are shown in orangecolour in the site plan, filed by the plaintiff were meant for common useof the occupants of both the shops on the ground floor as well as theoccupants of the first floor. The other shop on the ground floor, whichis shown in green colour in the site plan, was let out to Delhi Cloth Mills(DCM), which handed over the vacant possession of the same to theplaintiff on 30.05.2009.

2. It has been alleged in the plaint that on 30.04.2010, defendantNo. 1 broke the backside wall of the open space in his occupation andplaced a heavy dry-cleaning machine in the common verandah and alsoinstalled water treatment plant in the open space in his occupation anda complaint dated 30.04.2010, was lodged with the police in this regard.It has also been alleged that defendant No. 1, without permission of theplaintiff also built a wire cage on the ground floor which has height ofabout 15 feet and covers the first floor. It has also been alleged thatrecently in August, 2011 when the plaintiff renovated the shop shown ingreen colour in the site plan, it was discovered that defendant No. 1 hadillegally closed the door abutting in the verandah and had also closed thedoors of the toilet leading from the open space which is in possessionof the plaintiff and has been shown in purple colour in the site plan.Thereby, defendant No. 1 has locked the use of the toilet by the otheroccupants of ground floor and the occupants of the first floor. IA No.2233/2012 was filed by the plaintiff, seeking interim relief, restraining thedefendants from creating any hindrance in peaceful enjoyment of thecommon toilet and common verandah. A mandatory injunction has alsobeen sought, directing the defendants to remove any hindrance in thepeaceful enjoyment of the common toilet and common verandah shownin orange colour in the site plant. IA No. 3383/2012 has been filed bythe plaintiff, seeking removal of the wall, alleged to have been built in thecommon area behind the door of the shop in green colour. Vide interimorder dated 06.02.2012, this Court restrained the defendants from creating

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were meant for a common use.

5. It has been alleged in the written statement of defendant No. 1that the above-referred pleadings were in an inadvertent error and mistakeon the part of the counsel of the father of the defendant. This, however,cannot be accepted since there is no explanation as to how the allegedmistake came to occur not once, but twice.

I also notice that defendant No. 1 has not been able to consistentwith respect to the use of the toilet on the ground floor by the employeesof DCM. At one place, he says that they were not using the toilet,whereas at the other place, he says that they were permitted, onhumanitarian grounds, to use the toilet, through the entrance from theopen space which is shown in purple colour in the site plan. It is difficultto accept the contention that the employees of DCM were entering thetoilet from the rear side of the building. This is more so when this isdefendant’s own case that there is a public toilet in front of the shop ofthe suit property. Instead, going to the back lane, entering the buildingfrom the rear side and then going to the toilet, the employees of DCMwould have preferred to use the toilet in front of the building. To mymind, the use of the toilet on the ground floor by the employees of DCMsupports the case of the plaintiff that it was meant for common use ofthe occupants and that is why DCM employees were using the same.

6. The case of defendant No. 1 is that the brick wall in the verandahexisted since the time when the verandah and open space were let outto his father way back in 1959. Admittedly, there is a door in the showshown in green colour in the site plan which opened in the verandahbefore the wall was constructed. Had the father-in-law of the plaintiff letout the verandah and toilet exclusively to the father of defendant No. 1,there was no need of erecting this wall. In the ordinary course of humanconduct, walls are not erected in this manner, in the verandah of apremises.

7. For the reasons stated hereinabove, I am of the view that theplaintiff has been able to make out a strong prima facie case that theverandah and the toilet on the ground floor shown in orange colour inthe site plan filed by the plaintiff were meant for common use and werenever let out exclusively to the father of the defendants.

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any hindrance in the physical enjoyment of the common toilet by theplaintiff and her access to the verandah. The defendants were directedto remove all hindrances so as to enable the plaintiff to have access anduse the toilet. IA No.4380/2012 has been filed by the defendants seekingvacation of the interim order dated 06.02.2012.

3. The suit has been contested by defendant No. 1. It is alleged inthe written statement that after about 2 + years of letting out of the shopshown in red colour, entire back portion which include verandah toiletand open space were let out to father of defendant No. 1 at the rent ofRs 85 per month and since then this is being used for shop of dry-cleaning with the verandah and open space is being used for carrying outthe process of dry-cleaning, ironing, etc. It is also alleged that though theuser of DCM shop was having no right to use the toilet, the defendantoccasionally permitted them to use the same by using the entrance throughopen space, marked in blue (purple) colour on humanitarian groundskeeping in mind cordial relations. It is further alleged that there is noopening from the shop shown in green colour towards the verandah andthere was a brick wall from the toilet when verandah and open spacewas let out to the father of defendant No. 1 way back in the year 1959.

4. A perusal of the petition filed by late Shri Phool Chand in February,1991, before Rent Controller, Delhi, under Section 27 of Delhi RentControl Act would show that in para 1 of the petition, he claimed to betenant in respect of one Dokhandi (two portions) bearing No. 7, JorbaghMarket, New Delhi, measuring 12 ft. X 14 ft. and 9ft. X 12ft. withcommon verandah and common lavatory. Thus, Shri Phool Chandhimself claimed in this petition that that verandah and lavatory on theground floor were meant for common use. A perusal of the anotherpetition filed by late Shri Phool Chand in September, 1991 under Section27 of Delhi Rent Control Act would show that same was the descriptionof the tenancy premises given by him in para 1 of the petition. Theaverments made by late Shri Phool Chand, predecessor-in-interest of thedefendants in the petition filed way back in the year 1991, totally beliesthe case of defendant No.1 that the whole of the back portion, includingverandah and toilet were included in the tenancy after about 2 + yearsof the first letting in the year 1957. Had that been so, late Shri PhoolChand would not have stated in the year 1991 that the toilet and verandah

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8. The next question which comes up for consideration is as towhen the wall in the verandah was erected. As stated earlier, the caseof defendant No. 1 is that the wall was erected by the father-in-law ofthe plaintiff way back in the year 1959. On the other hand, the case ofthe plaintiff is that though they had come to know of closing of the doorof the shop shown in green colour, which abutted in the verandah inAugust, 2011, while renovating the aforesaid shop. It was only duringinspection by the Local Commissioner appointed by this Court that theycame to know of the existence of the wall. This is also the case of thedefendants that the verandah in question is being used by them for thepurpose of dry-cleaning of shop clothes since the time it was let out tohis father in the year 1959. Admittedly, there is a heavy dry-cleaningmachine installed in the verandah. The case of the plaintiff is that it wason 30.04.2010 that defendant No. 1 broke the backside wall of the openspace in his occupation and placed this heavy dry-cleaning machine inthe verandah and water treatment plant in the open space occupied byhim. Defendant No.1 has not placed on record any document such asinvoice of purchase of the aforesaid heavy dry-cleaning machine to showthat the machine was purchased prior to April, 2010. In fact, defendantNo. 1 is not specific as regards the actual date on which this heavy dry-cleaning machine was installed by him in the verandah. The case set outby the plaintiff with respect to the date of installation of the dry-cleanmachine finds corroboration from the DD No. 14-A lodged by her withthe police on 30.04.2010. Therefore, prima facie I would accept the caseof the plaintiff that the aforesaid machine was installed only in April,2010.

9. It was contended by the learned counsel for the defendant No.1 that the plaintiff has not entitled to equitable relief of injunction sinceshe did not disclose in the plaint that a wall had been erected in theverandah and obtained an ex parte order, without disclosing to the Courtthat implementation of that order would require demolition of the wallerected in the verandah. As noted earlier, the case of the plaintiff is thatshe came to know about the existence of the wall only during the courseof inspection by the Local Commissioner on 28.04.2012. The report ofthe Local Commissioner which visited the property in question on28.04.2012, inter alia, reads as under:-

“There was a cupboard attached to one wall of the said verandahwhich appeared to be the back wall of the premises in occupationof the plaintiff. I asked one of the persons working there toremove the cupboard. On removing the cupboard I found thatthere was space for a door there which was plastered and thepaint was also different from the paint on the remaining wall.

Thereafter, I visited the premises in the occupancy of the plaintiffand found that at the end of the premises, there was a doorwhich seemed to be approximately of the same size as that ofthe cupboard on the portion of the defendants and at the sameplace.

The plaintiff had called a carpenter who broke open a part of thedoor from the side of the plaintiff and I noticed that the wall onthe other side was not plastered from this end, showing that thewall was built from the side of the defendants. The wall did notlook very old and it seemed that it was built only a couple ofyears back. However, I cannot state the correct age of the wallas I do not have the expertise to do so. But I can say withcertainty that the wall was not very old.”

10. The report of the Local Commissioner clearly shows that thewall in the verandah having been sealed by a cupboard, could not havebeen visible to the plaintiff. It was only by removing the cupboard thatthe Local Commissioner could find the wall, erection of which hadprevented the entry of the plaintiff to the verandah through the door inthe shop, shown in green colour in the site plan. It is important to notethat the wall was found plastered only from the side of the verandah andhad not been plastered from the side of the shop in possession of theplaintiff. Had the wall been erected by the owner/landlord of the building,there would have been no reason for him not to plaster it from the sideof the shop shown in green colour. The fact that the wall was foundplastered only from the side of the verandah clearly indicates that it wasgot erected by defendant No. 1 and that is why it could be plastered onlyfrom one side. The other side could not have been got plastered by himsince that required access through the shop occupied by the plaintiff.The Local Commissioner also found that the paint on the space which

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had been plastered was different from the paint on the remaining wall.She also found that the wall did not look very old and could have beenbuilt only a couple of years back. Had the wall been such as 53 yearsold, as is claimed by defendant No. 1, the Local Commissioner would nothave said that it did not look very old and seemed to have been built onlycouple of years ago. Therefore, I am unable to accept the contention thatthe plaintiff deliberately concealed the existence of the wall erected in theverandah and, therefore, is not entitled to grant of the discretionary reliefof injunction.

11. In Dorab Cawasji Warden vs. Coomi Sorab Warden, 1990SCC (2) 117 JT 1990 (1) 199, Supreme Court inter alia observed andheld as under with respect to grant of mandatory injunctions duringpendency of the suit:-

“14. The relief of interlocutory mandatory injunctions are thusgranted generally to preserve or restore the status quo of the lastnon-contested status which preceded the pending controversyuntil the final hearing when full relief may be granted or tocompel the undoing of those acts that have been illegally done orthe restoration of that which was wrongfully taken from theparty complaining. But since the granting of such an injunctionto a party who fails or would fail to establish his right at the trialmay cause great injustice or irreparable harm to the party againstwhom it was granted or alternatively not granting of it to a partywho succeeds or would succeed may equally cause great injusticeor irreparable harm, courts have evolved certain guidelines.Generally stated these guidelines are :

(1) The plaintiff has a strong case for trial. That is, it shall beof a higher standard than a prima facie case that is normallyrequired for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury whichnormally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seekingsuch relief.

15. Being essentially an equitable relief the grant or refusal of an

291 292Asha Rani Gupta v. Rajender Kumar & Ors. (V.K. Jain, J.)

interlocutory mandatory injunction shall ultimately rest in thesound judicial discretion of the Court to be exercised in the lightof the facts and circumstances in each case. Though the aboveguidelines are neither exhaustive or complete or absolute rules,and there may be exceptional circumstances needing action,applying them as pre-requisite for the grant or refusal of suchinjunctions would be a sound exercise of a judicial discretion.”

12. Since the plaintiff has been able to make out a strong primafacie case, there is no reason why she should continue to suffer by notallowing her to have free access to the verandah and the toilet on theground floor during pendency of the suit. The defendant No.1 cannot beallowed to continue to enjoy the fruits of his illegal act during the pendencyof the suit. During the course of the arguments, I asked the learnedcounsel for the defendant No. 1 as to whether his client was ready todeposit Rs 1,00,000/- per month by way of a demand draft of FDR inthe name of Registrar General of this Court and if defendant No. 1 wasagreeable to do so, the Court may grant temporary mandatory injunction,but in the event of the suit being ultimately decided in favour of theplaintiff, the amount so deposited by defendant No. 1 would be paid toher. The learned counsel for the defendant No. 1, on instructions fromdefendant No. 1, declined to consent to this suggestion.

13. For the reasons stated in the preceding paragraphs, defendantNo. 1 is directed to remove the wall erected in the verandah shown inorange colour in the site plan filed by the plaintiff within four weeks. Heis also restrained from creating any hindrance or obstruction in the useof the verandah and the toilet on the ground floor by the plaintiff and/or her family members and servants. Defendant No. 1 shall not put anylock on either of the two doors of the toilet. The lock, if any, put by thedefendant No. 1 on the doors of the toilet would be removed forthwith.Defendant No. 1 shall also remove the heavy dry-cleaning machine andall other articles kept in the verandah within four weeks from today. Thewooden racks got installed in the verandah shall also be removed bydefendant No. 1 within four weeks. This is subject to the plaintiff filingan undertaking on affidavit, within one week, stating therein that in theevent of the suit being dismissed, she would pay such amount as the

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favour and he entered into two agreements to sellwith defendants no. 1 & 2 for considering which hereceived—Plaintiff also executed two Power ofAttorneys qua the said property—But plaintiff claimedthat transaction encompassed in Agreements to sellwas void and unenforceable in law because of theprovisions of the Act. Held—An agreement which isagainst law is not necessarily illegal and void, Incertain cases, a person can wave the application oflaw in his favour. If such a person receives benefit/consideration under agreements in his favour andthus, he waives right of any illegality in thoseagreements on account of violation of provisions ofAct, Such person cannot be allowed to blow hot andcold at same time i.e. if he takes benefit of theagreement subsequently cannot argue otherwise.

In order to appreciate these issues, one admitted fact whichhas to be noted is that the size of the suit plot is 569 sq.yds. i.e. less than 500 sq. mtrs. In terms of provisions ofSection 4 of the ULCR Act, a vacant land i.e. land which isnot constructed upon would fall foul of the Act only when itis in excess of the ceiling limit of 500 sq. mtrs. The questionis that even if the land does not fall beyond the ceiling limitprescribed under the Act, can it be urged that yet theagreements to sell and the subsequent sale deeds thereuponfall foul of the provisions of Sections 26 and 28 of the ULCRAct. In my opinion, for the following reasons, the argumentsurged in this regard on behalf of the plaintiff are whollymisconceived and liable to be rejected:-

(i) The onus of proving that the sale deeds executed infavour of defendant Nos.1 and 2, and defendant No.4, wereregistered without permissions being obtained under ULCRAct was squarely on the plaintiff. Once there are registeredsale deeds then as per illustration (e) of Section 114 ofEvidence Act, 1872 there is a presumption that the saledeeds would have been validly registered inasmuch as

293 294Prem Raj v. Babu Ram Gupta (Valmiki, J. Mehta, J.)

Court directs, as compensation to defendant No.1 for the loss he sufferson account of not being able to put the verandah and the toilet to hisexclusive use.

The applications stand disposed of in terms of this order.

CS(OS) 288/2012

The parties to appear before the Joint Registrar for admission/denialof documents on 8.10.2012.

The matter be listed before the Court for framing of issues on18.02.2013.

ILR (2012) 6 DELHI 293CS (OS)

PREM RAJ ….PLAINTIFF

VERSUS

BABU RAM GUPTA & OTHERS …..DEFENDANTS

(VALMIKI J. MEHT A, J.)

CS (OS) NO : 2043/1989 DATE OF DECISION: 03.09.2012

Urban Land (Ceiling and Regulations) Act, 1976—Plaintiff filed suit for declaration and possession withrespect to plot situated in Karol Bagh New Delhi—Plaintiff also prayed for cancellation of sale deedexecuted in favour of defendant no. 1 & 2 by defendantno. 3 acting as Power of Attorney Holder of plaintiff aswell as subsequent sale deed executed by defendantno. 1 & 2 in favour of defendant no. 4—As per plaintiff,he was perpetual lessee of suit property under leasedeed executed by Delhi Improvement T rust, in his

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295 296Prem Raj v. Babu Ram Gupta (Valmiki, J. Mehta, J.)

deed in 2006 was executed in favour of defendant No.9, theULCR Act had been repealed.

(iii) Any controversy remaining as to any alleged invalidity ofthe sale deeds as of today is reduced to naught inasmuchadmittedly the ULCR Act stands repealed w.e.f. 22.03.1999.Once the Act is not on the statute book as on the date ofpassing of the present judgment, it cannot be said that theprovisions of the said ULCR Act can still be relied upon onbehalf of the plaintiff to urge invalidity of the agreements tosell and the sale deeds executed on the basis of the same.

(iv) An agreement which is against law is not necessarilyillegal and void. In certain case a person can waive theapplication of the law in his favour. Such application of lawis waived by the plaintiff in this case as he has acted underthe Agreements for his benefit. In such circumstances, theagreement is not a void agreement. Reference in this behalfis invited to the judgment of the Supreme Court in the caseof Martin & Harris Ltd. Vs. VIth Additional DistrictJudge & ors AIR 1998 (1) SCC 732. It is the plaintiff whoreceived benefit/consideration under the subject Agreementsto sell dated 09.02.1981 and 14.04.1981, and thereforeplaintiff can be said to have waived the right of any illegalityof these agreements on account of violation of the provisionsof the ULCR Act. The plaintiff cannot be allowed to blow hotand cold at the same time i.e. he took benefit of theAgreements and now he cannot argue otherwise.

(v) The Constitution Bench of the Supreme Court in thejudgment reported as Maharao Sahib Shri Bhim Singh JiVs. Union of India & Ors. 1981 (1) SCC 166 has held thatthe provision of sub-section 2 of Section 27 of the Act isinvalid so far as it seeks to vacate the citizen’s right todispose of its urban property if the land falls within theceiling limits. The provision of Section 27(1) of the ULCR Actwas struck down as it was held that citizen under Article19(1) (f) has the fundamental right to hold property. Though

under Section 28 of the ULCR Act the registering authoritycannot register the sale deed without the requisitepermissions. The plaintiff has failed to file any document orshow from the record of ULCR Act authorities that permissionwas not obtained. The mere fact that the ULCR Act recordsqua the suit property are destroyed cannot mean that itmust be held that no permission was there. Reliance by theplaintiff on the photocopy of letter dated 18.4.1983 ismisplaced, as this is not an exhibited document and is onlymarked ‘A’, and since it is not proved it cannot be reliedupon. Even if this letter can be relied upon it cannot meanthat it is proved that permission by ULCR Act authorities wasrefused as this letter is of April, 1983 but the sale deeds infavour of defendant Nos.1 & 2 and defendant No.4 aredated 3.9.1983 and 6.8.1984, i.e. later, and thereforepermissions could have been and would be of later datesthan 18.4.1983. This would have been known from ULCRAct authorities but unfortunately the records do not exist,however, this will go against the plaintiff and not against thedefendants, more so as the onus was on the plaintiff.

(ii) If there is any entitlement of anybody to dispute thetransfer of title in the suit land, the entitlement and locuswould only be of the Government acting through theauthorities under the ULCR Act. If there is no action by theappropriate authorities under the ULCR Act, in seeking tocancel the chain of title deeds, and acquire the suit property,it is not open to the plaintiff to urge, substituting himself asif he were the Governmental Authorities for urging that thechain of title deeds are void because of alleged violation ofthe provisions of ULCR Act. I hold that the plaintiff has nolocus standi (more so after having taken benefit ofagreements to sell and receiving entire consideration) tourge that the Agreements to sell and the Power of Attorneyscould not transfer rights in the suit land in favour of firstlythe defendant Nos. 1 and 2 then the defendant No. 4 andpresently to the defendant No. 9. Of course by the time sale

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this Constitutional Bench judgment only strikes down theprovision of Section 27(1), a reference to the judgmentgiven by Hon’ble Mr. Justice Sen shows that if a vacant landowned by a person falls within the ceiling limits of an urbanagglomeration, then such person is outside the purview ofSection 3 of the Act and such a person is not governed bythe provisions of the Act. Therefore, since the suit propertyis below the ceiling limit of 500 sq. mtrs., the ULCR Actcannot apply to the property in question.

At this stage, I must refer to a related argument urged onbehalf of the plaintiff that even the power of attorneys(though the same mention that they are irrevocable and thegeneral power of attorney (Ex. D-4/5) is a registereddocument), yet, the same cannot be looked into by virtue ofthe provisions of the ULCR Act. I have already dealt with thelack of any substance in the argument for seekingcancellation of the Agreements to Sell and the consequentsale deeds in the aforesaid paragraphs and said conclusionswill also equally apply with respect to the two power ofattorneys i.e. Special Power of Attorney dated 14.04.1981(Ex.D-4/4) and the General Power of Attorney (registered)dated 14.04.1981 (Ex. D-4/5). I may also add that theHon’ble Supreme Court in the recent judgments of SurajLamp Industries Pvt. Ltd. Vs. State of Haryana and Anr.183 (2011) DLT 1(SC) (para 13) has protected rights whichare created under a power of attorney given for consideration.In the present case, it is undisputed that the power ofattorneys were given for consideration and I note that duringthe course of the argument it is not disputed that the entiresale consideration under the Agreements to Sell dated09.02.1981 and the power of attorney dated 14.04.1981 i.e.a total sum of Rs. 95,000/- stands received by the plaintiff.If we refer to the illustration given in Section 202 of theContract Act, 1872, and which deals with irrevocability of aGeneral Power of Attorney given for consideration, it is seenthat a power of attorney given for consideration in fact is

valid even after death of the person executing the power ofattorney. (Para 10)

Important Issue Involved: An agreement which is againstlaw is not necessarily illegal and void. In certain cases, aperson can waive the application of law in his favour. Ifsuch a person receives benefit/consideration under agreementin his favour and thus he waives right of any illegality inthose agreements on account of violation of provision ofAct, Such person cannot be allowed to blow hot and coldat same time i.e. if the takes benefit of the agreements andsubsequently cannot argue otherwise.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFF : Mr. V.P. Chaudhary, Sr. Adv. withMr. Mritunjay Chaudhary, Adv.

FOR THE DEFENDANTS : Mr. Dinesh Kumar Gupta and Mr.Vikas Mishra, Adv. for D-4 and D-9.

RESULT: Suit dismissed.

VALMIKI J. MEHTA, J. (ORAL)

1. The subject suit has been filed by the plaintiff for declaration andpossession with respect to the plot bearing no. 5, Block No. 60, W.E.A.Ramjas Road, Karol Bagh, New Delhi, admeasuring 569 sq. yards(hereinafter the suit property). The plaintiff claims various reliefs ofdeclarations and possession qua the suit property effectively to getcancelled the sale deed dated 3.9.1983 executed in favour of the defendantnos. 1 and 2 by the defendant no.3 as the power of attorney holder ofthe plaintiff, and the subsequent sale deed dated 6.8.1984 executed by thedefendant nos. 1 and 2 in favour of defendant no.4. Mesne profits arealso claimed. Presently the owner of the property is defendant No.9under the sale deed dated 14.9.2006 executed by the defendant No.4.

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2. Though there are a total of nine reliefs which are claimed in theplaint, in sum and substance what the plaintiff seeks is cancellation of alldocuments whereby ownership of the suit property is vested presentlywith the defendant no.9 and for revesting of the same with the plaintiff.It is not disputed between the parties that defendant no.9 is as on dateclaiming ownership of the suit property under a registered sale deeddated 14.9.2006. This document will also have to be cancelled in casethe plaintiff has to be granted reliefs in the present suit, though such arelief is not claimed in the suit plaint.

3. Before proceeding ahead I must note that the original plaintiff inthe suit one Sh. Prem Raj who had entered into two Agreements to Selldated 9.2.1981 (Ex.P-2) and 14.4.1981 (Ex. PW1/D5) with the defendantnos. 1 and 2 with respect to the suit property, died during the pendencyof the suit and his legal heirs have been brought on record. Some of thelegal heirs have further died and legal heirs of such legal heirs have alsobeen brought on record. For the sake of convenience reference in thisjudgment to the plaintiff would mean to the original plaintiff, and whereverthe context so requires then to his legal heirs.

4. The facts of the case are that the plaintiff was the perpetuallessee of the suit property under a lease deed executed in his favour bythe Delhi Improvement Trust on 27.08.1943. As per the plaint (andwhich has been amended about four times) what the plaintiff states isthat plaintiff had entered into two Agreements to Sell dated 9.2.1981 and14.4.1981, Ex. P-2 and Ex.PW1/D5, with the defendant Nos. 1 & 2 fora total consideration of Rs. 95,000/- of which Rs. 85,000/- is said tohave been received as per the plaint, though now before me it is admittedthat the entire consideration has been received by the plaintiff. The plaintiffhad also executed two Power of Attorneys. First is a Special Power ofAttorney dated 14.04.1981 (Ex. D-4/4) in favour of the defendant No.3 (wife of defendant No.1) for making necessary applications with all theGovernmental Authorities; and the second General Power of Attorney(Ex. D4/5) of the same date (which is a registered Power of Attorney)entitles the defendant No.3 to act on behalf of the plaintiff in any andevery manner with respect to the suit property. As per the plaint, the saidtwo power of attorneys have been cancelled by the plaintiff by means ofa registered notice dated 17.02.1983. There are further averments in the

amended plaint with respect to the transaction encompassed in theAgreements to Sell dated 09.02.1981 and 14.04.1981 being void andunenforceable in law because of the provisions of the Urban Land (Ceilingand Regulations) Act, 1976 (hereinafter the ‘ULCR Act’). There arefurther averments in the plaint that the sale deeds which have beenregistered in favour of defendant Nos. 1 & 2, acting through the plaintiff’spower of attorney holder defendant no.3, are void as no permission wasalso obtained from the Income Tax Authority. In view of the aforesaidfacts plaintiff seeks the recovery of possession and cancellation of thedocuments being the chain of sale deeds by which originally the defendantNos. 1 & 2 became the owners, thereafter defendant No. 4 became theowner and presently the defendant No. 9 is the owner.

5. In this suit written statements have been filed jointly on behalfdefendant Nos. 1 to 3. A separate written statement was filed by thedefendant No. 4. Pursuant to amendment being allowed to the plaintiffand amended plaint filed, additional written statement was filed by thedefendant No. 4. Replications have been filed by the plaintiff to thewritten statements. Defendant No. 9 has adopted the written statementwhich has been filed by the defendant No. 4. In his written statement thedefendant No. 4 has pleaded that the plaintiff transferred complete rightsin the plot by means of Agreement to Sell dated 09.02.1981 and14.04.1981. It is pleaded that complete consideration of ‘95,000/- wasreceived by the plaintiff. It is further pleaded that on the basis of validregistered Power of Attorney dated 14.04.1981 executed in favour ofdefendant No. 3, permissions were applied for from the GovernmentalAuthorities and thereafter sale deed dated 03.09.1983 (Ex. P-3) wasexecuted in favour of defendant Nos. 1 & 2, and followed by a sale deeddated 06.08.1984 (Ex. P-4) executed by the defendant No. 1 & 2 infavour of defendant No. 4. The sale deed by which the suit propertypresently vests with the defendant No. 9 is dated 14.09.2006 (Ex. DW-1/1). The defendants have denied that they have forged any permissionfrom the Income Tax Authority. Application of the provisions of theULCR Act is denied.

6. On the pleadings of the parties, the following issues were framedin this case on 12.03.2007:

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1. Whether the suit of the plaintiffs is within limitation? OPP

2. Whether the suit has been valued properly for the purposeof jurisdiction and court fee affixed on the plaint inaccordance with law? OPP

3. Whether the suit of the plaintiffs is barred by the provisionsof Order 23 & Order 2 Rule 1 of the Contract Act? OPP

4. Whether the sale deed dated 3rd September, 1983 executedby Late Shri Prem Raj Chaudhary in favour of thedefendant Nos. 1 & 2 is null and void and illegal for thereasons stated in the plaint? If so, to what effect? OPP

5. Whether the sale deed dated 6th August, 1984 executedby the defendant nos. 1 & 23 in favour of the defendantno. 4, is null and void? If so, to what effect? OPP

6. If the foregoing issues are decided in favour of the plaintiffsthen whether the plaintiffs are entitled to possession ofthe suit property from defendant no. 4? OPP

7. Whether the plaintiffs are entitled to the relief of mesneprofit? If so, for what period, at what rate and fromwhom? OPP

8. Whether the plaintiffs are entitled to a relief of declaration,as prayed for? OPP

7. Issue Nos. 1 to 3 are not pressed on behalf of the defendantsand, therefore, are decided in favour of the plaintiff.

Issue Nos.4 to 8

8. Main issues are issue Nos. 4 to 8 as to entitlement of the plaintifffor cancellation of the chain of sale deeds as also other declarations andthereby seeking revesting of the suit property in the plaintiff and thepossession of the suit property being granted to the plaintiff.

9. The learned senior counsel appearing for the plaintiff has veryvehemently contended that the suit property in fact is not a constructedproperty but only a piece of plot, and, being only a plot land, the samewas subject to the provision of Section 26 and other related provisionsof the ULCR Act, and since a fraud is sought to be played upon the

authorities under the ULCR Act by means of entering into the subjectAgreements to Sell dated 09.02.1981 and 14.04.1981 showing the propertyas built up, the transaction in question is illegal and void. It is furtherargued that since the defendants have failed to prove any permissionbeing granted under Section 26 of the ULCR Act, there could not be avalid transfer in favour of defendant Nos. 1 & 2, and thereafter to thedefendant No. 4, and finally to the defendant No. 9.

10. In order to appreciate these issues, one admitted fact which hasto be noted is that the size of the suit plot is 569 sq. yds. i.e. less than500 sq. mtrs. In terms of provisions of Section 4 of the ULCR Act, avacant land i.e. land which is not constructed upon would fall foul of theAct only when it is in excess of the ceiling limit of 500 sq. mtrs. Thequestion is that even if the land does not fall beyond the ceiling limitprescribed under the Act, can it be urged that yet the agreements to selland the subsequent sale deeds thereupon fall foul of the provisions ofSections 26 and 28 of the ULCR Act. In my opinion, for the followingreasons, the arguments urged in this regard on behalf of the plaintiff arewholly misconceived and liable to be rejected:-

(i) The onus of proving that the sale deeds executed in favour ofdefendant Nos.1 and 2, and defendant No.4, were registered withoutpermissions being obtained under ULCR Act was squarely on the plaintiff.Once there are registered sale deeds then as per illustration (e) of Section114 of Evidence Act, 1872 there is a presumption that the sale deedswould have been validly registered inasmuch as under Section 28 of theULCR Act the registering authority cannot register the sale deed withoutthe requisite permissions. The plaintiff has failed to file any document orshow from the record of ULCR Act authorities that permission was notobtained. The mere fact that the ULCR Act records qua the suit propertyare destroyed cannot mean that it must be held that no permission wasthere. Reliance by the plaintiff on the photocopy of letter dated 18.4.1983is misplaced, as this is not an exhibited document and is only marked‘A’, and since it is not proved it cannot be relied upon. Even if this lettercan be relied upon it cannot mean that it is proved that permission byULCR Act authorities was refused as this letter is of April, 1983 but thesale deeds in favour of defendant Nos.1 & 2 and defendant No.4 aredated 3.9.1983 and 6.8.1984, i.e. later, and therefore permissions could

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have been and would be of later dates than 18.4.1983. This would havebeen known from ULCR Act authorities but unfortunately the records donot exist, however, this will go against the plaintiff and not against thedefendants, more so as the onus was on the plaintiff.

(ii) If there is any entitlement of anybody to dispute the transfer oftitle in the suit land, the entitlement and locus would only be of theGovernment acting through the authorities under the ULCR Act. If thereis no action by the appropriate authorities under the ULCR Act, in seekingto cancel the chain of title deeds, and acquire the suit property, it is notopen to the plaintiff to urge, substituting himself as if he were theGovernmental Authorities for urging that the chain of title deeds are voidbecause of alleged violation of the provisions of ULCR Act. I hold thatthe plaintiff has no locus standi (more so after having taken benefit ofagreements to sell and receiving entire consideration) to urge that theAgreements to sell and the Power of Attorneys could not transfer rightsin the suit land in favour of firstly the defendant Nos. 1 and 2 then thedefendant No. 4 and presently to the defendant No. 9. Of course by thetime sale deed in 2006 was executed in favour of defendant No.9, theULCR Act had been repealed.

(iii) Any controversy remaining as to any alleged invalidity of thesale deeds as of today is reduced to naught inasmuch admittedly theULCR Act stands repealed w.e.f. 22.03.1999. Once the Act is not on thestatute book as on the date of passing of the present judgment, it cannotbe said that the provisions of the said ULCR Act can still be relied uponon behalf of the plaintiff to urge invalidity of the agreements to sell andthe sale deeds executed on the basis of the same.

(iv) An agreement which is against law is not necessarily illegal andvoid. In certain case a person can waive the application of the law in hisfavour. Such application of law is waived by the plaintiff in this case ashe has acted under the Agreements for his benefit. In such circumstances,the agreement is not a void agreement. Reference in this behalf is invitedto the judgment of the Supreme Court in the case of Martin & HarrisLtd. Vs. VIth Additional District Judge & ors AIR 1998 (1) SCC732. It is the plaintiff who received benefit/consideration under the subjectAgreements to sell dated 09.02.1981 and 14.04.1981, and therefore plaintiff

can be said to have waived the right of any illegality of these agreementson account of violation of the provisions of the ULCR Act. The plaintiffcannot be allowed to blow hot and cold at the same time i.e. he tookbenefit of the Agreements and now he cannot argue otherwise.

(v) The Constitution Bench of the Supreme Court in the judgmentreported as Maharao Sahib Shri Bhim Singh Ji Vs. Union of India& Ors. 1981 (1) SCC 166 has held that the provision of sub-section 2of Section 27 of the Act is invalid so far as it seeks to vacate the citizen’sright to dispose of its urban property if the land falls within the ceilinglimits. The provision of Section 27(1) of the ULCR Act was struck downas it was held that citizen under Article 19(1) (f) has the fundamentalright to hold property. Though this Constitutional Bench judgment onlystrikes down the provision of Section 27(1), a reference to the judgmentgiven by Hon’ble Mr. Justice Sen shows that if a vacant land owned bya person falls within the ceiling limits of an urban agglomeration, thensuch person is outside the purview of Section 3 of the Act and such aperson is not governed by the provisions of the Act. Therefore, since thesuit property is below the ceiling limit of 500 sq. mtrs., the ULCR Actcannot apply to the property in question.

At this stage, I must refer to a related argument urged on behalfof the plaintiff that even the power of attorneys (though the same mentionthat they are irrevocable and the general power of attorney (Ex. D-4/5)is a registered document), yet, the same cannot be looked into by virtueof the provisions of the ULCR Act. I have already dealt with the lack ofany substance in the argument for seeking cancellation of the Agreementsto Sell and the consequent sale deeds in the aforesaid paragraphs and saidconclusions will also equally apply with respect to the two power ofattorneys i.e. Special Power of Attorney dated 14.04.1981 (Ex.D-4/4)and the General Power of Attorney (registered) dated 14.04.1981 (Ex. D-4/5). I may also add that the Hon’ble Supreme Court in the recentjudgments of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryanaand Anr. 183 (2011) DLT 1(SC) (para 13) has protected rights whichare created under a power of attorney given for consideration. In thepresent case, it is undisputed that the power of attorneys were given forconsideration and I note that during the course of the argument it is notdisputed that the entire sale consideration under the Agreements to Sell

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dated 09.02.1981 and the power of attorney dated 14.04.1981 i.e. a totalsum of Rs. 95,000/- stands received by the plaintiff. If we refer to theillustration given in Section 202 of the Contract Act, 1872, and whichdeals with irrevocability of a General Power of Attorney given forconsideration, it is seen that a power of attorney given for considerationin fact is valid even after death of the person executing the power ofattorney.

11. I therefore, hold that the power of attorneys do fall foul of theprovisions of ULCR Act, and in fact, they could not have been soughtto be cancelled as was endeavoured to be done by the plaintiff by sendingthe legal notice dated 17.2.1983.

12. Accordingly, I hold that the Agreements to Sell dated 9.2.1981and 14.4.1981, Special Power of Attorney and General Power of Attorney(registered) dated 14.4.1981 and the Sale Deeds dated 3.9.1983 (in favourof defendant nos.1 and 2), 6.8.1984 ( in favour of defendant no. 4) and14.9.2006 (in favour of defendant no.9) are not illegal or void on accountof alleged violations of the provisions of ULCR Act and which in anycase stand repealed as on date and whose provisions therefore cannotapply to urge any rights on such basis as on today.

13. So far as the arguments urged on behalf of the plaintiff that thesale deeds executed in favour of defendant nos. 1 and 2 dated 3.9.1983and defendant no.4 dated 6.8.1984 would be void as the necessarypermission was not obtained from the Income Tax Authorities, and suchpermission was in fact forged and fabricated, all I have to say is that thesale deed dated 3.9.1983 is a duly registered sale deed and therefore interms of illustration (e) of Section 114 of the Evidence Act, 1872, officialacts are deemed to be properly performed i.e the registering authoritywould have seen the income tax clearance certificate before registrationof the sale deeds dated 3.9.1983 and 6.08.1984. Once there is apresumption in favour of the defendant nos. 1 and 2, it was upon theplaintiff to rebut this presumption by leading evidence, however, nopositive evidence has come on record that no permissions were given bythe Income Tax Authority for execution of the sale deed in favour ofdefendant nos. 1 and 2 and defendant No.4. Of course, the plaintiff didmake effort to summon the records of the Income Tax Authority, and

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such record could not be produced as they are said to have been lost/destroyed, however, that cannot mean that the plaintiff would havedischarged the onus and it should necessarily be held that no permissionwas granted by the Income Tax Authority. I must in this regard refer tothe special power of attorney Ex.D-4/4 dated 14.4.1981 as per which itis specifically and only for the defendant no.3 to deal with the variousGovernmental Authorities including the Income Tax Authority for obtainingthe appropriate permissions (In fact, in my opinion, this special powerof attorney was not required inasmuch as the registered General Powerof Attorney Ex.D-4/5 specifically provides in the last clause that theattorney/ defendant no. 3 is fully competent to do every act and deedwhich is necessary for the purpose of transfer of suit plot/property infavour of defendant nos. 1 and 2). Obviously, therefore, defendant no.3would have applied for and got permission from the Income Tax Authorityacting as an attorney holder for the plaintiff. I, therefore, hold that itcannot be argued by the plaintiff that the sale deeds dated 3.9.1983 and6.8.1984 must fall as no permissions were obtained from the IncomeTax Authority.

14. Accordingly, issue nos. 4 to 8 are decided against the plaintiffand in favour of defendants and it is held that the plaintiff is not entitledto possession of the suit property or for cancellation of the sale deedsor for any mesne profits. Plaintiff is also not entitled to the declarationsas prayed for in view of the aforesaid discussion.

15. One point which was very strenuously argued on behalf of theplaintiff was that since the defendant no.3 was proceeded ex parte andshe was to explain the stated alleged suspicious circumstances of obtainingof permissions of ULCR and Income Tax Authorities, and therefore,adverse inference be drawn against the defendant no.3. In my opinion,this argument is an argument of desperation because defendant no.3 isthe wife of defendant no.1, and a duly registered power of attorneyholder of the plaintiff, and the two power of attornies have already beenproved and exhibited in this suit as Ex.D-4/4 and Ex.D-4/5, and therefore,appearance and non-appearance of defendant no.3 is inconsequential,more so as the written statement has been filed jointly by defendant nos.1 to 3.

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RELIEF:-

16. In view of the above, the suit of the plaintiff is dismissed.Considering the facts of the present case where the plaintiff in spite ofhaving received the entire sale consideration of the suit property from thedefendant Nos.1 and 2, is harassing the defendants by taking up onlylegal and technical pleas (in fact the record of this case shows that theplaintiff had also initiated various other litigations against the defendantsand most of which have been dismissed or withdrawn) and by initiatingpresent wholly malicious/dishonest litigation, I exercise my discretionunder Rule 14 of the Delhi High Court (Original Side) Rules, 1967 toexempt the applicability of rules on the aspect of costs in the presentcase, and apply the ratio of the recent judgment of the Supreme Courtin the case of Ramrameshwari Devi and Others v. Nirmala Devi andOthers, (2011) 8 SCC 249 which holds that it is high time that actualcosts be imposed moreso when dishonesty is apparent. I therefore awardactual costs to the defendants while dismissing the suit. Let the contestingdefendants file affidavits within a period of two weeks from today of thecosts which have been incurred by these defendants towards payment totheir lawyers. The certificates of the lawyers of having actually receivedthe fees must also be attached with the affidavits showing making ofpayments of fees to the lawyers for the present suit. Such costs will bethe costs awarded against the plaintiff and in favour of the defendantsin the present suit. Suit is dismissed and disposed of accordingly. Decreesheet be prepared.

ILR (2012) 6 DELHI 308W.P

SOCIAL JURIST, A CIVIL RIGHTS GROUP ….PETITIONERS

VERSUS

GOVT. OF NCT OF DELHI ….RESPONDENTS

(A.K. SIKRI, ACJ. & RAJIV SAHAI ENDLA W, J.)

W.P. (C) NO. : 4618/2011 DATE OF DECISION: 5.9.2012

Right of children to free and Compulsory EducationAct, 2009—Section 3, 12(2) and 19 (2)—Constitution ofIndia, 1950—Article 14, 15, 21, 21-A and 38—Delhi SchoolEducation Act, 1973—Persons with Disabilities (EqualOpportunities, Protection of Rights and fullParticipation) Act, 1995—U.N. Convention on Rights ofChild (1989)—U.N. Convention on rights of personswith Disabilities (2008)—Delhi School Education (Freeseats for students belonging to Economically WeakerSections and Disadvantaged Group) Order 2011—Thispetition is concerned with a direction for appointmentof Special Educators and for provision of requisiteaids in recognized unaided and aided private schools,Delhi—Plea taken by Action Committee, two specialeducators may not be required in all schools inasmuchas all schools may not even have children withdisabilities and recognized unaided private schoolsshould be permitted to make appointments of SpecialEducators and provision for special aids on a needbased basis—Schools be allowed to share SpecialEducators amongst themselves—Per contra plea takenby counsel for GNCTD as well as counsel for petitioner,if such liberty is granted, schools, without incurringexpenditure on salaries of Special Educators wouldclaim reimbursement per child as being paid to schools

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who employ such Special Educators—Absence ofSpecial Educators and other Special Provisions fordisabled in school would act as a deterrent to childrenwith disability seeking admission thereto and wouldbecome a vicious cycle—Special Educators can be ofassistance not only to children with disability but toother children as well and for this reason also it isessential for schools to have them—Held—Recognizedunaided private schools as well as aided schools arerequired to employ minimum of two Special Educatorsin each school and appointment of such SpecialEducators cannot be made dependent on admissionof children needing Special Educators—Each of suchschool has to have provision for special aids for suchchildren and is required to provide a barrier freemovement—Absence today of any such children inschool, cannot be excuse for not providing suchfacilities—If existing staff/teachers in schools aresurplus and/or student strength or student-teacherratio of school so permits, schools can have theirexisting staff trained to teach children with disabilityinstead of engaging separate Special Educators—Deployment of Special Educators cannot be deferredtill admission of children with special needs andschools have to be in a state of readiness andpreparedness to receive children with special needs—Capital expenditure on making school building andpremises barrier free so as to allow free movement tochildren with disability, has to be incurred by schoolsfrom their own coffers and is not reimbursable byGovernment—All recognized aided and unaided privateschools in Delhi directed to appoint Special Educatorsand to make their buildings/school premises barrierfree so as to provide free movement/access to childrenwith disabilities—DoE, Govt. NCT of Delhi directed toensure compliance of directions issued by this Courtand to take action for de-recognition against erring

schools—Schools where children with special needsare already admitted or will be admitted hereafter,shall immediately make provision for Special Educatorsand further ordain that no school shall refuse admissionto children with disability for reason of not employingSpecial Educators or not providing barrier free accessin school premises.

Important Issue Invovled: (A) All the recognized aidedand unaided private schools in Delhi to appoint SpecialEducators and to make their buildings/school premises barrierfree so as to provide free movement/access to children withdisabilities.

(B) Capital expenditure on making the school building andpremises barrier free so as to allow free movement to childrenwith disability has to be incurred by the schools from theirown coffers and is not reimbursable by the Government.

[Ar Bh]

APPEARANCES:

FOR THE PETITIONERS : Mr. Ashok Agarwal & Mr. KhageshB. Jha, Advs.

FOR THE RESPONDENT : Mr. Nazmi Waziri, standing Counsel,GNCTD, Ms. Ruchi Sindhwani,Addl. Standing Counsel, GNCTDwith Ms. Bandana Shukla Mr. VikrantPachnanda & Ms. Megha Bharat,Advs. For R-1. Mr. Pramod Guptawith Mr. Udit Gupta, Advs For R-3.Ms. Maninder Acharya Adv. ForMCD.

CASES REFERRED TO:

1. Society for Un-aided Private Schools of Rajasthan vs.

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U.O.I. 2012 (4) Scale 272.

2. Social Jurist, A Civil Rights Group vs. Govt. of NCT ofDelhi 163 (2009) DLT 489.

RESULT: Allowed.

RAJIV SAHAI ENDLAW, J.

1. This petition filed in public interest highlights the deficiency ofrequisite teaching aids for children with disability and non-availability ofspecial teachers, in the unaided and aided private schools of Delhi andseeks a direction in this regard including to the Govt. of NCT of Delhi(GNCTD) and MCD. It is pleaded that owing to non-availability of SpecialEducators and the requisite teaching aids, children with disability admittedto the said schools, suffer.

2. It is pleaded in the petition:-

a. that there are 2039 unaided recognized private schools(1260 recognized by Directorate of Education (DoE),GNCTD and 779 recognized by MCD) and 258 aidedrecognized private schools (214 aided by DoE, GNCTDand 44 aided by MCD) in Delhi and most of them do nothave the provisions of basic physical as well as academicinfrastructure, including Special Educators as required forthe education of the children with disabilities;

b. that most of the schools are not even providing barrierfree environment;

c. that there are over 2 lakhs children with disabilities inDelhi and of whom less than 1% are in schools;

d. that the failure on the part of these schools to have adequatephysical and academic infrastructure in place for theeducation of the children with disabilities has resulted inviolation of Right of Children to Free and CompulsoryEducation (RTE) Act, 2009 of such children as guaranteedunder Articles 14,15,21, 21-A & 38 of the Constitution ofIndia read with the provisions of Delhi School EducationAct, 1973, Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995,U.N. Convention on Rights of Child (1989) and U.N.Convention on Rights of Persons with Disabilities (2008);

e. that trained teachers including teachers qualified in signlanguage and/or Braille are needed as a part of academicinfrastructure for these children;

f. a barrier free environment is needed for free mobility ofthese children in school premises;

g. special books and equipments are needed for education ofthese children;

h. that the post of Special Educator is required to be sanctionedby the DoE, GNCTD in each and every school;

i. that a Division Bench of this Court in Social Jurist, ACivil Rights Group Vs. Govt. of NCT of Delhi 163(2009) DLT 489 has directed the GNCTD as well schoolsrun by local bodies namely NDMC, MCD and CantonmentBoard to ensure that each school shall have at least twospecial educators and that necessary teaching aids andreading materials are provided to children with disability;

j. that since the aforesaid order was limited to schools runby GNCTD, NDMC, MCD and Cantonment Board, a needis felt to seek a direction with respect to unaided andaided schools also; k. that the schools are under anobligation to provide special teachers and other requisitematerial for children with disabilities;

l. that under the provisions of RTE Act, the unaided andaided schools are also required to provide admission tochildren belonging to economically weaker sections/disadvantaged group to the extent of 25% of the strengthof the class at entry point and children with disabilities areincluded in the definition of disadvantaged groups – thuschildren with disabilities would be entitled to admission inthe unaided and aided schools who should be prepared byengaging special educators and making provision for otherrequisite material, to teach them;

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m. that in the absence of special trained teachers and otherrequisite material, there is likely to be a high dropout rateof such students from the schools.

3. The petitioner, besides GNCTD and MCD has also impleadedAction Committee of unaided private schools as a respondent to thispetition. Notice of the petition was issued and counter affidavits havebeen filed by all the three respondents. We also directed the counsel forthe GNCTD to file response to the counter affidavit of the ActionCommittee for unaided private schools and to which a rejoinder has beenfiled. The counsels have been heard.

4. The GNCTD in its counter affidavit has, informed that incompliance of the directions in the judgment aforesaid, 926 posts ofSpecial Educators have already been created to address the educationalneeds of visually impaired, hearing impaired, mentally or physicallychallenged students of the various schools of GNCTD and schemes forproviding other facilities to them in the schools, have also been introduced.It is further pleaded that Section 3 of the RTE Act confers a right to freeand compulsory education on every child of the age of 6 to 14 years andchildren with special needs are also covered under the provisions of RTEAct and all facilities are to be provided to them; that vide Circular dated6th August, 2010 all recognized unaided schools have already been directedto remove architectural barriers from the school premises so as to facilitatethe movement of disabled students under the provisions of DisabilitiesAct; that as per the provisions of RTE Act, private unaided schools areto be reimbursed expenditure in respect of children admitted under theEWS norms to the extent of per child expenditure incurred by the Stateor the actual amount charged from the child, whichever is less and allthe facilities which the Government is required to and is providing to thechildren in its schools have to be provided by the unaided recognizedschools also including Special Educators for children with special needswho may seek such admission to these schools.

6. GNCTD has filed another affidavit dated 16th May, 2012 on theissue of reimbursement of salary of Special Educators and appointmentof Special Educators in Government aided schools. It is stated thereinthat as per Section 12(2) of the RTE Act unaided private schools providing

free and compulsory elementary education are to be reimbursed expenditureso incurred by them to the extent of per child expenditure incurred bythe State or the actual amount charged from the child, whichever is less,with such reimbursement not exceeding per child expenditure incurredby a Government school; that under Section 19(2) of the RTE Act,schools established before the commencement of the Act and not fulfillingthe norms and standards specified in the Schedule are required to takesteps to fulfill such norms and standards at their own expense within aperiod of three years from the date of commencement of the Act; thatthe Schedule to the RTE Act lists a ‘barrier free access’ as one of thenorms and standards which all schools are required to fulfill; that unaidedprivate schools are reimbursed the expenditure incurred on EWS studentsincluding students with special needs, which presently is up to Rs.1,190/- per student per month and no other reimbursement is obligated to theStates; that the process for making provision for Special Educators inGovernment aided schools is also underway.

7. The respondent no.2 MCD also in its counter affidavit hasinformed that 1741 posts of Special Educators in the MCD schools hadbeen created and the process of filling up the said posts was underway.It is also informed that MCD has provided ramps in all schools whichare newly constructed and made provision for requisite toilets for thechildren with disability.

8. The respondent no.3 Action Committee in its counter affidavithas admitted lack of physical and academic infrastructure in privateunaided recognized schools of Delhi, required for education of childrenwith disabilities like blindness, hearing impairment and mental retardation.It is further pleaded that the constitutional responsibility of providingeducation to the children with disability primarily lies with the Governmentand Government should first direct the Government schools to providemore seats for children with disabilities and the Government schoolshave sufficient scope for enrolling all the children having disability; thatwhen the Government, in spite of its vast resources and limitless financialbacking, is still struggling to provide basic amenities in its schools, theprivate unaided recognized schools, the only sources of whose revenueis tuition fee from their pupil, should not be burdened with additionalcosts; that provision for physical and academic infrastructure for children

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with disability in the form of ramps, lifts and architectural changes in theexisting building would require a huge investment and cannot be doneimmediately; that the private unaided recognized schools have incompliance of the Circular dated 6th August, 2010 already taken theinitiative and a large number of schools have carried out substantiveimprovements and changes in their infrastructure to provide the facilitiesto children with disability; though, the need for Special Educators isadmitted but their scarcity and high cost of hiring is highlighted; it isfurther stated that the schools may be required to employ more than twoSpecial Educators also depending upon the needs of the children. Timeof two years was sought to comply with the Circular dated 6th August,2010.

9. The Action Committee in its response to the affidavit dated 16thMay, 2012 of the GNCTD has pleaded:-

(i). that Section 12(2) of the RTE Act casts a duty on theState to reimburse the unaided schools to the extent ofper child expenditure so incurred by the State, or theactual amount charged from the child, whichever is less;the said provision does not make a further classificationin the nature of expenditure under the heads ‘Capital’ and‘Recurring’ thereby meaning that whatever the per childexpenditure incurred by the State or the amount chargedby the schools, is to be reimbursed to the unaided schools;

(ii). that no basis for arriving at the per child expenditure ofRs.1,190/- per month has been stated;

(iii). that the responsibility under the Disabilities Act is of theGovernment;

(iv). that in computing Rs.1,190/- per child per month, theadditional expenditure which has to be incurred by theGovernment in discharge of its obligations under theDisabilities Act, has not been considered; 10. GNCTD hasresponded to the aforesaid pleas of the Action Committeecontending that its financial responsibility is limited toreimburse the expenditure incurred which presently is upto Rs.1,190/- per child per month; that it is not obligated

to reimburse any other amount; that the obligation forcapital expenditure in unaided schools lies with the schoolsand not with the GNCTD; that per child expenditureincludes all recurring expenditure i.e. salary of teachersand allied staff, books, uniforms, scholarships, laboratories,computers, libraries, administrative, teaching and learningaids etc. as also expenditure incurred on sports.

11. We have bestowed due consideration to the matter. As far asthe argument of the Action Committee, of the constitutional obligation toprovide education being of the State only, is concerned, the same hasalready been negatived in Society for Un-aided Private Schools ofRajasthan Vs. U.O.I. 2012 (4) Scale 272.

12. This petition as aforesaid, is concerned with a direction forappointment of Special Educators and for provision of requisite aids inthe recognized unaided and aided private schools, Delhi. Directors in thisregard, qua the schools of GNCTD and MCD have already been issued,as aforesaid and informed to be also implemented.

13. The necessity for Special Educators in all schools stands admittedby the GNCTD as well as Action Committee in their respective counteraffidavits. The counsel for the Action Committee however during thehearing urged that two Special Educators may not be required in all theschools in as much as all the schools may not even have children withdisabilities and the recognized unaided private schools should be permittedto make appointments of Special Educators and provision for special aidson a need based basis. It is also argued that the schools be allowed toshare the Special Educators amongst themselves.

14. The aforesaid plea has been opposed both by the counsel forthe GNCTD as well the counsel for the petitioner. While the counsel forthe GNCTD has contended that if such liberty is granted, the schoolswithout incurring expenditure on the salaries of Special Educators wouldclaim reimbursement per child as being paid to schools who employ suchSpecial Educators, the counsel for the petitioner has contended that theabsence of Special Educators and other special provisions for disabled inthe school would act as a deterrent to children with disability seekingadmission thereto and would become a vicious cycle. It is further argued

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that the Special Educators can be of assistance not only to children withdisability but to other children as well and for this reason also it isessential for the schools to have them.

15. The RTE Act as amended in May, 2012 vests a child with“disability” as defined in the Disabilities Act or in the National Trust forWelfare of Persons with Autism, Cerebral Palsy, Metal Retardation andMultiple Disabilities Act, 1999 with the same rights to pursue free andcompulsory elementary education, which children without such disabilitieshave. Even prior to the said amendment, the Delhi School Education(Free seats for Students belonging to Economically Weaker Sections andDisadvantaged Group) order 2011 had included a child with special needsand suffering from disability, as defined in the Disability Act, in thedefinition of child belonging to disadvantaged group. Though the need forSpecial Educators in the schools as aforesaid stands admitted but we arealso of the view that just like the Government/Municipal and CantonmentBoard schools have been directed to have Special Educators irrespectiveof whether any children with disability are admitted therein or not,recognized unaided private schools as well as aided schools are alsorequired to employ minimum of two Special Educators in each schooland appointment of such Special Educators cannot be made dependenton admission of children needing Special Educators. Similarly, each ofsuch schools has to have provision for special aids for such children andis required to provide a barrier free movement. Absence today of anysuch children in the school cannot be an excuse for not providing suchfacilities.

16. The counsel for the Action Committee has next contended thatthe schools be permitted to, if they so desire, have their existing teachers/staff trained as Special Educators instead of being required to engagenew staff. We find merit in the said plea. If the existing staff/teachersin the school are surplus and/or the student strength or the student-teacher ratio of the school so permits, the schools can have their existingstaff trained to teach children with disability, instead of engaging separateSpecial Educators. However, this would be subject to as aforesaid existingstaff being surplus and being in a position to devote time with childrenwith special needs.

17. We find merit in the contention of the counsel for the GNCTDthat the deployment of Special Educators cannot be deferred till theadmission of children with special needs and the schools have to be ina state of readiness and preparedness to receive children with specialneeds.

18. Reference at this stage may be made to the National Policy forPersons with Disabilities of the year 2006 of the Government of India.With respect to education for persons with disabilities the said Policyinter alia states:-

“II. B. Education for Persons with Disabilities.

20. Education is the most effective vehicle of social and economicempowerment. In keeping with the spirit of the Article 21A ofthe constitution guaranteeing education as a fundamental rightand Section 26 of the Persons with Disabilities Act, 1995, freeand compulsory education has to be provided to all children withdisabilities up to the minimum age of 18 years. According to theCensus, 2001, fifty-one percent persons with disabilities areilliterate. This is a very large percentage. There is a need formainstreaming of the persons with disabilities in the generaleducation system through Inclusive education.

24. There will be concerted effort on the part of the governmentto improve identification of children with disabilities throughregular surveys, their enrollment in appropriate schools and theircontinuation till they successfully complete their education. TheGovernment will endeavor to provide right kind of learning materialand books to be children with disabilities, suitably trained andsensitized teachers and schools which were accessible anddisabled friendly.”

With respect to children with disabilities the Police inter aliaprovides:-

“IV. Children with Disabilities.

32. Children with disabilities are the most vulnerable group andneed special attention. The Government would strive to:-

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a. Ensure right to care, protection and security for childrenwith disabilities;

b. Ensure the right to development with dignity and equalitycreating an enabling environment where children canexercise their rights, enjoy equal opportunities and fullparticipation in accordance with various statutes.

c. Ensure Inclusion and effective access to education, health,vocational training along with specialized rehabilitationservices to children with disabilities.

d. Ensure the right to development as well as recognition fspecial needs and of care, and protection of children withsevere disabilities.

V. Barrier-free environment

33. Barrier-free environment enables people with disabilities tomove about safely and freely, and use the facilities within thebuilt environment. The goal of barrier free design is to providean environment that supports the independent functioning ofindividuals so they can participate without assistance, in everydayactivities. Therefore, to the maximum extent possible, buildings/places/transportation system for public use will be made barrierfree.”

The policy sets a goal of providing access to appropriate pre-school, primary and secondary level education to every child with disabilityby the year 2020 and emphasizes on an inclusive education system i.e.education of children with disability along with children without disability,as far as possible.

19. Though in the aforesaid state of affairs, the writ petition oughtto have been allowed and directions sought issued but the ActionCommittee has raised some other pleas as to the expenditure on theworks required to be carried out by schools to make their buildingsbarrier free and suitable for free movement of children with disability. Ithas been vehemently contended that the amount of Rs.1,190/- per childper month arrived at by the GNCTD is towards recurring expenditureonly and not towards capital expenditure required to be incurred by the

schools to make changes to their buildings. With reference to the provisionsof the RTE and the Disability Acts it is contended that the responsibilityand liability therefor is of the Government and the Government shouldreimburse the same.

20. The counsel for the GNCTD however has as aforesaid invitedour attention to Section 19 of the RTE Act which requires all schools,as a condition for their recognition, to provide a barrier free access intheir buildings. We are thus satisfied that such capital expenditure onmaking the school building and premises barrier free so as to allow freemovement to children with disability has to be incurred by the schoolsfrom their own coffers and is not reimbursable by the Government.

21. Though the counsel for the Action Committee has also soughtto raise a grievance about the rate of reimbursement of Rs.1,190/- perchild per month but we are afraid that is not within the ambit of thepresent petition. He has lastly contended that the same is not inclusive ofthe emoluments to be paid to the Special Educators. The counsel for theGNCTD, under instructions, has fairly stated that as and when theGovernment appoints Special Educators for Government schools, thetotal salary expenditure of the Government will increase and hence perchild expenditure will also increase and consequent increase would bemade in the amount of Rs.1,190/- also.

22. We accordingly allow this petition and direct all the recognizedaided and unaided private schools in Delhi to appoint Special Educatorsand to make their buildings/school premises barrier free so as to providefree movement/access to children with disabilities. We further direct theDoE, Govt. NCT of Delhi to ensure compliance of the directions issuedby this Court and to take action for de-recognition against the erringschools. We however grant time up to 31st March, 2013 to the saidschools to, if not have already done, make their school premises barrierfree/access free. We have granted the said time having regard to the factthat Section 19 of the RTE Act has given time of three years from 1stApril, 2010. We further grant time of two years to appoint SpecialEducators. However, schools where children with special needs are alreadyadmitted or will be admitted hereafter shall immediately make provisionfor Special Educators and further ordain that no school shall refuse

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admission to children with disability for the reason of not employingSpecial Educators or not providing barrier free access in the schoolpremises.

The petition is disposed of. No costs.

ILR (2012) 6 DELHI 321EFA

RAVINDER PRAKASH PUNJ ….APPELLANT

VERSUS

PUNJ SONS PVT. LTD. & ORS. ….RESPONDENTS

(SANJAY KISHAN KAUL & VIPIN SANGHI, JJ.)

EFA (OS) : 19/2010 DATE OF DECISION: 06.09.2012

Arbitration and Conciliation Act, 1996—Limitation Act,1963—Article 136—Appellant filed execution petitionseeking execution of decree passed by Court, whilemaking an award rule of court—Execution petitiondismissed being not maintainable—Aggrievedappellant challenged the order—Respondents raisedone of the objections that execution petition wasbarred by limitation and merely because appeal againstdismissal of objections was pending, without therebeing a stay, (which was also dismissed.) limitation forpreferring execution petition did not stop to run onthe date on which award was made rule of Court.Held:—The period of limitation for execution beginsfrom the date of decision of the Appellant Court in acase when the decree of the Lower Court is challengedin Appeal as the original decree merges in theappellate decree.

Ravinder Prakash Punj v. Punj Sons Pvt. Ltd. (Vipin Sanghi, J.)321 322

Under Article 136 of the Limitation Act, period of limitationfor filing of an execution petition of a decree begins on thedate on which it becomes enforceable. It is well settled thatan appeal is a continuation of the original proceeding andthe original decree merges in the appellate decree. Whenan appeal is preferred from an original decree, the decreewould also become enforceable after dismissal of the same,and it is immaterial that there was no order staying theexecution of the decree and that the decree-holder couldexecute the decree even during pendency of the appeal.This merger of the original decree into the appellate decreetakes place irrespective of the fact that the appellate courtaffirms, modifies or reverses the lower court’s decree. [SeePosani Ramachandraiah vs. Daggupati Seshamma, AIR1978 AP 342; S. Kharak Singh vs. Harbhajan Singh,MANU/PH/0303/1878; Ramji Dass vs. Tilak Raj, MANU/PH/0427/1988; Syed Abdul Rauf vs. Nurul Hussain & Ors.,AIR 1992 Raj 3; Hari Singh vs. Harbhajan Singh, AIR2001 P&H 108; Chandi Prasad & Ors. vs. Addl. Dist. andSessions Judge, Hapur & Ors., AIR 2001 All 229; IndradeoSah vs. Ram Naresh Sah & Ors., 2002 (1) PLJR 423;Nawal Kishore Patel vs. Most. Indrapari Devi, 2002 (4)PLJR 272; Uma Shankar Sharma vs. State of Bihar, AIR2005 Pat 94]. (Para 28)

Important Issue Involved: The period of limitation forexecution begins from the date of decision of the AppellantCourt in a case when the decree of the Lower Court ischallenged in Appeal.

[Sh Ka]

APPEARANCES:

FOR THE APPELLANT : Mr. Sudhir Nandrajog, SeniorAdvocates with Mr. Raman Gandhi,Advocates.

FOR THE RESPONDENT : Mr. Naresh Thanai & Mr. Gaurav

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V., Advocates for the respondent No.1 & 3 Mr. Anupam Sharma,Advocates for the Respondent no.2.

CASES REFERRED TO:

1. Manohar Shankar Nale & Others vs. Jaipalsing ShivlalsingRajput & Others, AIR 2008 SC 429.

2. Hari Singh vs. Harbhajan Singh, AIR 2001 P&H 108.

3. Chandi Prasad & Ors. vs. Addl. Dist. and Sessions Judge,Hapur & Ors., AIR 2001 All 229.

4. Indradeo Sah vs. Ram Naresh Sah & Ors., 2002 (1)PLJR 423.

5. Nawal Kishore Patel vs. Most. Indrapari Devi, 2002 (4)PLJR 272.

6. Uma Shankar Sharma vs. State of Bihar, AIR 2005 Pat94.

7. Syed Abdul Rauf vs. Nurul Hussain & Ors., AIR 1992Raj 3.

8. Ramji Dass vs. Tilak Raj, MANU/PH/0427/1988.

9. Posani Ramachandraiah vs. Daggupati Seshamma, AIR1978 AP 342.

10. S. Kharak Singh vs. Harbhajan Singh, MANU/PH/0303/1878.

RESULT: Appeal allowed.

VIPIN SANGHI, J.

1. The appellant is aggrieved by the order dated 18.05.2010 passedin Execution Petition No.186/2009 by the learned Single Judge, wherebythe said execution petition has been dismissed on the ground that thesame is not maintainable.

2. The execution petition had been preferred to seek to execute thedecree passed by the Court while making the award dated 15.11.1989,passed by the learned sole arbitrator, ‘rule’ of the court with slight

modification vis-a-vis, the direction contained in para-9 of the award.The said direction required the parties to go back to the arbitrator forimplementation and interpretation of the award in case any dispute arosebetween them in that regard. The arbitrator also sought to retain jurisdictionto issue subsequent clarification. This aspect was also set aside by theCourt while, otherwise, affirming the award and passing a decree interms thereof vide judgment dated 30.05.1997, passed in Suit No.327A/1990 titled S.C. Mathur v. V.P. Punj & Ors. We may note that theaforesaid judgment dated 30.05.1997 was assailed in FAO (OS) Nos.174/1997 and 88/1998 without success, which were dismissed by this Courton 03.03.2009.

3. To appreciate this controversy, it is necessary to give a littlebackground of the matter. Late Sh. Kanhaya Lal Punj, it appears, was avery successful businessman and established various businesses. He andhis family members also acquired a large number of properties. After hisdeath, disputes with regard to division of properties and businesses arosebetween his descendants. These disputes were referred to arbitration.

4. There were three groups of persons before the arbitratorcomprising of 27 persons. Whereas 26 of them fell in two groups,namely Group-I and Group-II comprising of 14 and 12 membersrespectively; Group-III consisted of the widow of late Sh. Kanhaya LalPunj. The award made by the learned arbitrator was a result of a negotiatedfamily settlement agreeable to all the parties. The award sets out thedetails of the various properties and businesses which were being carriedout by the family, either in the name of incorporated companies or in thenames of partnership concerns or proprietary firms, which were madethe subject matter of division. The award also recognized that :

“The Companies are being run and owned by the aforesaid Punjbrothers alongwith their wives and children in their individualcapacity and through HUF wherever applicable and alongwith asmall number of shares held by certain outsiders who are closefamily friends.

Whereas the said companies are in reality in the nature ofpartnership, though wearing veils of Private Limited Companies.”(emphasis supplied)

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5. The learned arbitrator distributed the properties, businesses andthe business entities, i.e. the companies amongst the three groups, asenumerated in the exhibits annexed to the award. The procedure to effectthe partition, transfer and vesting of assets in the three groups was alsodelineated in para-6 of the said award. This procedure, inter alia, providedthat the partnership could be changed/modified to give effect to theaward; the employees attached to the divisions and companies taken overby each group and any related office staff shall automatically becomeemployees of the respective companies/firms; the scheme of arrangementwas required to be framed to settle the distribution of the various divisionsof businesses being carried out by private limited companies, and; othersimilar steps were required to be taken by the parties.

6. The purpose of narrating the aforesaid is to highlight theundisputed position that all the parties to the said award dated 05/06.08.1987 recognised and acknowledged the fact that the assets of thefamily, though held in the names of family held companies, partnerships,proprietary firms, and in the name of HUFs and individuals, belonged tothe family and for their division, and for the division of the runningbusinesses, the corporate veil was lifted and divisions of businesses andproperties and other assets undertaken after a negotiated settlement wasreached between them, without being inhibited by the fact that variousproperties and assets were held – not in the names of family membersindividually, but by the closely held companies.

7. The aforesaid award was accepted by all concerned and wasduly implemented. It was made ‘rule’ of the Court and a decree in termsthereof was passed by this Court in Suit No.2461A/1987 on 17.03.1988,as no objections were preferred to the said award by any of the parties.This award would be referred to as the ‘first award’ wherever necessary.

8. It appears that within the members of Group-II, referred to inthe first award, i.e. between four sons of late Kanhaya Lal Punj, namelySh. Virender Prakash Punj, Sh. Satya Narain Prakash Punj, Sh. RavinderPrakash Punj, and Sh. Nilender Prakash Punj, disputes arose which werereferred to the arbitration of Sh. S.C. Mathur vide reference dated09.10.1989. This reference agreement contained the list of variousproperties, private limited companies which were having assets, and all

other assets jointly held by the aforesaid four brothers – sons of late Sh.Kanhaya Lal Punj, which were made the subject matter of arbitration.The reference recorded that by an agreement dated 11.07.1987, theparties had appointed Sh. S.C. Mathur as the sole arbitrator and referredall their unresolved disputes to him for settlement by arbitration. It wasalso recorded that by various resolutions passed by the Board of Directorsand Shareholders, the companies mentioned in the reference dated09.10.1989 had agreed to consider themselves to be bound by the directionsgiven by the sole arbitrator “since it was anticipated that in view ofachieving an overall settlement which would also have an adverse effecton the businesses of the companies, some reallocation of their assetsmay become necessary”.

9. The reference authorized the arbitrator Sh. S.C. Mathur, CharteredAccountant to prescribe:

“(a) (i) Mode and manner of Division and distribution of theownership, management and business of companies, firms referredto above and

(ii) the allocation and distribution of the Immovable Properties inSchedule-II, between the parties.

(b) In connection with the above, to consider the position ofaccounts of the respective companies and firms and to assist inthe handing over of the running businesses to the parties withfinancial books, all records, documents and related files since itsinception and possession of the premises etc. as a on-goingconcerns.”

It was also agreed in the reference that “Alongwith the award, theArbitrator may give other appropriate directions for transfer of properties,transfer of shares, interests and other matters as deemed necessary.”

10. The learned arbitrator Sh. S.C. Mathur made and published hisaward, as aforesaid, dated 15.11.1989. We have already noted the fateof this award, i.e. it was made ‘rule’ of the Court except with thedeletion of the direction contained in para-9 thereof.

11. This award, inter alia, enlisted the various businesses, companies,

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firms, proprietorships etc. belonging to the four groups, namely, Group‘A’ led by Virender Prakash Punj; Group ‘B’ led by Satya Narain Punj,Group ‘C’ led by Ravinder Prakash Punj and, Group ‘D’ led by NilenderPrakash Punj in Schedule I. It also recorded that:

“The companies are being run and owned by the aforesaid Punjbrothers along with their wives and children in their individualcapacity and through HUF wherever applicable and along with asmall number of shares held by certain outsiders who are closefamily friends.

x x x x x x x x x x

WHEREAS now the parties have left it to me as to how therunning businesses are to be allotted, finally divided and sharedbetween the aforesaid four brothers and their heirs who are theparties to this arbitration and to decide how the assets, liabilitiesand running businesses are to be settled.”

12. The award also shows that the same was a result of negotiatedfamily settlement agreeable to all the parties and that the arbitrator soughtto facilitate the smooth transfer of businesses and immovable propertiesamongst the four groups, as aforesaid.

13. We may note that the dispute in the present appeal is primarilybetween the members of the Group ‘C’ and Group ‘D’, the appellantbelonging to Group ‘C’ and the respondent no.2 belonging to Group ‘D’.The aforesaid award dated 15.11.1989 is referred to herein as the ‘secondaward’.

14. Para-3 of the second award deals with the various businesses.One of the companies dealt with in the award is Punj Sons PrivateLimited (PSPL). It appears that this company had different divisionslocated at different locations. The learned arbitrator awarded the AmbatturDivision to Sh. R.P. Punj falling in Group ‘D’. Clause 4 in para 3.1 ofthe award provided as under:

“4. Punj Sons Private Limited (Parent Company) shall continueto exist and run its business under the Chairmanship of ShriV.P.Punj and Shri S.N.P. Punj, Managing Director. The Chairman

shall have full authority over the entire operations and shall havethe right to exercise two votes in case of any dispute. However,the Board is advised to nominate independent persons on theBoard to protect the interest of all the shareholders and assist inthe resolution of the outstanding issues.”

15. The distribution of the equity shares of this company wasprovided in clause 13 of para 3.1. Clause 14 under para 3.1 is relevantand reads as follows:

“14. On the winding up of Punj Sons Private Limited, the factoryindustrial land shall belong to Shri V.P.Punj Group A, Shri R.P.PunjGroup-C, Shri N.P.Punj Group D, in equal ratio. The remainingsurplus will be divided amongst the four brothers.”

16. A perusal of Schedule 3, Schedule 5 and Schedule 6 of thesecond award shows that Group ‘A’ (led by Virender Prakash Punj),Group ‘C’ led by Ravinder Prakash Punj, and Group ‘D’ led by NilenderPrakash Punj got, inter alia, 1/3rd share in factory land at Kalkaji ofPSPL.

17. The appellant preferred Execution Petition No. 186/2009 seekingthe following reliefs:

“a. Direct that the property at Plot No.4, Factory Land KalkajiIndustrial Area, New Delhi-19 of Punj Sons Pvt. Ltd. bepartitioned by metes and bounds and that the petitioner decreeholder be put into possession of 1/3rd share of the same.

b. Direct that property at Building facing middle circle, behindplot no. M-4 and M-5, Connaught Place, New Delhi be partitionedby metes and bounds and the petitioner decree holder be put intopossession of 1/3rd share of the same.

c. Direct that the rental income being derived from property atBuilding facing middle circle, behind plot NO. M-4 and M-5,Connaught Place, New Delhi be attached and the petitioner/decreeholder be paid 1/3rd share of the rental income so being derived.

d. Director the defendants to give an account of the rent derivedfrom portion of property as above and the DH be given 1/3rd of

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the entire rental income so received since the date of decree.

e. Any other and further relief as this Hon’ble Court deems justand proper in the facts and circumstances of the case may alsobe granted.”

18. The appellant disclosed in the execution petition that the factoryland at Kalkaji belonging to PSPL was allotted in the year 1956 by theUnion of India (UOI) on leasehold basis, being a plot of land measuring3 Acres. PSPL was also utilizing the adjacent vacant land admeasuringa few acres. In the dispute which arose with the authorities, i.e. the DDAand the UOI, on account of the demand for conversion charges fortransferring the title of the entire plot of land in the name of PSPL,litigation is pending in this Court. The appellant claimed that the factoryland at Kalkaji, New Delhi, belonging to the PSPL has been apportionedin the ratio of 1/3rd each amongst the appellant, respondent No. 2 &respondent No. 3 as per Schedule 3, 5 & 6 of the second award.

19. Before proceeding further, we may at this stage itself take noteof the fact that, even according to the appellant, the properties falling onPlot Nos. M-4 & M-5, Connaught Place, New Delhi, did not specificallyform part of the arbitral award. On this short ground, the learned SingleJudge held that the appellant was not entitled to seek partition by metesand bounds of the said properties or any specific relief in relation to thesaid properties in the execution petition. Before us, learned counsel forthe appellant has not made any submission in relation to the dismissal ofthe execution petition qua properties falling on Plots Nos. M-4 & M-5,Connaught Place, New Delhi. Consequently, we are not inclined to interferewith the impugned order insofar as it pertains to the said propertiesbearing Nos. M-4 & M-5, Connaught Place, New Delhi. Even otherwise,we concur with the learned Single Judge that since the said propertiesspecifically did not form part of the arbitral award, the appellant couldnot have sought the relief of partition or distribution of rental incomefrom the said properties in execution proceedings.

20. So far as the relief sought in respect of the factory land atKalkaji belonging to the PSPL is concerned, the learned Single Judge hadheld as follows:

“12. The decree holder in this case does not dispute that the

property No.2, Kalkaji Industrial Area belongs to M/s Punj Sons.What is further sought to be argued is that, such company isonly nominal, and, if anything, has become defunct. It is alsoargued that this Court in Execution cannot go behind a decreeand has to enforce it uncritically. The Court is unable to acceptthe contention. Paras 8, 9 and 12 of the award which embodiesthe rights in respect of the company, was affirmed by this Courton 30.05.1997. These conditions in the award – are clearlypremised upon the existence of M/s Punj Sons. Furthermorethere is internal indication that the arbitrator was conscious aboutthe continued existence of Punj Sons as is evident by specificclauses which mention about ownership of the Kalkaji propertyof the said private limited company. It is of course true that inthe award a specific shareholding or entitlement to suchshareholding in respect of such property has also been spelt out;yet the award like another document has to be read as a whole.It clearly indicates that in the event of winding up or liquidationof M/s Punj Sons, the shareholding or entitlement, towardsspecific undivided shares would devolve on one party or theother in the ratio as mentioned. Whether the company is defunctor dysfunctional is something that an Executing Court cannot gointo. Even if such a position were to be accepted the corollarycannot be that such “defunct” company’s assets are to betransmitted according to the terms of an award, without followingthe due procedure as prescribed by law, to wit directions by acompetent Court constituted under the Companies Act.”

21. In substance, the learned Single Judge held that since PSPLcontinues to exist and the factory land at Kalkaji belongs to the PSPL,the factory land at Kalkaji could not be distributed amongst the partiesexcept in accordance with the procedure prescribed by law by a competentCourt constituted under the Companies Act. It is only in the event ofwinding up or liquidation of PSPL that the shareholding or entitlementtowards specific undivided shares would devolve on one party or theother in the ratio mentioned in the award.

22. The submission of learned counsel for the appellant, premisedon the aforesaid background is that the corporate veil had been lifted by

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the learned Arbitrators in both the arbitration proceedings as per theunderstanding and agreement of the parties. It was the clear understandingand admission of the parties that the family concerns/companies weretruly in the nature of partnership and the fact some of the family businesseswere run by closely held companies incorporated under the CompaniesAct did not come in the way of the arbitral tribunal in treating the assetsheld by these companies as different and distinct from the two companies.It is for this reason that the learned Arbitrator in his award consciouslydistributed the shareholding in the company PSPL separately from itsassets.

23. Learned counsel further submits that the Clause 4 of para 3.1of the second award, which talks about the continuation of PSPL andClause 14 of para 3.1, which provides that on the winding up of PSPL,the factory industrial land shall belong to Groups ‘A’, ‘C’ and ‘D’ inequal ratio were required to be understood in the proper context andreconciled which, it is stated that, the learned Single Judge has failed todo.

24. Respondent No. 2 supports the present appeal of the appellant.Learned counsel for the respondent No. 2 Sh. Rajinder Dorian Punjsubmits that even though, under the award, respondent No. 2 is alsoentitled to 1/3rd share in the factory land of PSPL at Kalkaji, it is beingdeprived of the same. It is submitted that the appellant is occupyingabout 25% of the said land and exploiting the same, whereas respondentNo. 1, represented by respondent No. 3 is occupying the remaining about75% and exploiting the same. He places reliance on Section 26 of theTransfer of Property Act to submit that the conditions imposed in thesecond award for transfer of the factory land at Kalkaji of PSPL standfulfilled, and that the possession thereof should be equally divided betweenthe appellant, respondent No. 2 and respondent No.3.

25. On a query from the Court as to why the appellant or respondentNo. 2 have not initiated proceedings for winding up of the PSPL, learnedcounsel for the appellant has informed that since the factory land ofPSPL at Kalkaji (to the extent of 3 Acres) is under a lease from theauthorities, and there is a dispute with regard to conversion charges andtransfer charges for the entire land which admeasures about 10 Acres

(including the land admeasuring 3 Acres duly allotted to PSPL), until andunless the allotment of the entire land is regularized and converted intofreehold, respondent No. 1/PSPL cannot be wound up as the samewould put the entire property into jeopardy. Learned counsel for therespondent No. 2 has responded to by stating that respondent No. 2 doesnot have the requisite shareholding in PSPL to be able to take any actionfor winding up of PSPL.

26. The appeal is primarily opposed by Mr. Naresh Thanai, whoappears on behalf of respondent No. 1 as well as respondent No. 3. Heseeks to place reliance primarily on Clause 14 of para 3.1 of the secondaward by submitting that only on winding up of PSPL, the factory landshall belong to Sh. V.P. Singh of Group ‘A’, Sh. R.P. Punj of Group ‘C’and Sh. N.P. Punj of Group ‘D’ in equal ratio. Till so long as thecompany PSPL is not wound up, the appellant has no right to seekpartition of the said land by metes & bounds and possession thereof tothe extent of 1/3rd. He further submits that the execution petition isbarred by limitation. He submits that the second award was made ‘rule’of the Court upon dismissal of the objections by the learned Single Judgeon 30.05.1997 in Suit No. 327A/1990. Merely because an appeal fromthe said judgment was pending and the appeal came to be dismissed bythe Division Bench on 03.03.2009, the limitation for preferring the executionpetition did not stop to run from the date on which the award was madea ‘rule’ of the Court, as there was no stay operating in the appeal withrespect to the judgment of the learned Single Judge dated 30.05.1997making the award a ‘rule’ of the Court. He has sought to place relianceon the decision of the Hon’ble Supreme Court in Manohar ShankarNale & Others Vs. Jaipalsing Shivlalsing Rajput & Others, AIR2008 SC 429, in support of this submission. He submits that even thoughthe issue of limitation was raised by him before the learned Single Judge,the said issue had not been gone into by the Court. He submits that thelimitation for preferring the execution petition under Article 136 of theLimitation Act was twelve years, which expired before the filing of theexecution petition.

27. We proceed to first consider the submission of Mr. Thanai thatthe execution petition was barred by limitation. Firstly, we may notice

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that even though the said issue of limitation was raised by respondentnos.1 and 3, the executing court did not return a finding thereon. Inspiteof that being the position, the said respondents neither preferred a reviewnor an appeal before this Court. Since the executing court did not dismissthe execution petition on the ground of limitation, it means that the saidobjection of respondent nos.1 and 3 was not accepted. Not having preferreda review or an appeal from the impugned order, in our view, it is notopen to the respondent nos.1 and 3 to now argue as respondents that theexecution petition was barred by limitation. In any event, we haveconsidered the said submission on merits and we find no merit therein.

28. Under Article 136 of the Limitation Act, period of limitation forfiling of an execution petition of a decree begins on the date on whichit becomes enforceable. It is well settled that an appeal is a continuationof the original proceeding and the original decree merges in the appellatedecree. When an appeal is preferred from an original decree, the decreewould also become enforceable after dismissal of the same, and it isimmaterial that there was no order staying the execution of the decreeand that the decree-holder could execute the decree even during pendencyof the appeal. This merger of the original decree into the appellate decreetakes place irrespective of the fact that the appellate court affirms, modifiesor reverses the lower court’s decree. [See Posani Ramachandraiah vs.Daggupati Seshamma, AIR 1978 AP 342; S. Kharak Singh vs.Harbhajan Singh, MANU/PH/0303/1878; Ramji Dass vs. Tilak Raj,MANU/PH/0427/1988; Syed Abdul Rauf vs. Nurul Hussain & Ors.,AIR 1992 Raj 3; Hari Singh vs. Harbhajan Singh, AIR 2001 P&H 108;Chandi Prasad & Ors. vs. Addl. Dist. and Sessions Judge, Hapur &Ors., AIR 2001 All 229; Indradeo Sah vs. Ram Naresh Sah & Ors.,2002 (1) PLJR 423; Nawal Kishore Patel vs. Most. Indrapari Devi,2002 (4) PLJR 272; Uma Shankar Sharma vs. State of Bihar, AIR2005 Pat 94].

29. In Uma Shankar Sharma (supra), the Patna High Court hasobserved as follows:

“8. Article 136 of the Limitation Act, 1963, specifically providesthat the time from which period of limitation begins to run iswhen the decree of order becomes enforceable. In a case where

the decree of the Lower Courts is challenged in Second Appealwhich results into a decree passed by this Court, then the decreeof the Courts below merge with the judgment and decree of theSecond Appeal and the decree becomes enforceable and theperiod of limitation under Article 136 of the Limitation Act is tobe counted from the date of the judgment in the Second appeal.Even when the appeal is dismissed on any preliminary matter oris dismissed for default, it would naturally; amount to confirmationof the judgments and degree of the Lower Courts, which wouldattain finality only thereafter and hence the final decision wouldbe that of the second appellate Court and the decree of theCourts below could be legally treated as enforceable onlythereafter. It would thus be absolutely immaterial that there wasno order in the Second Appeal staying execution of the decreeand that the decree of the Courts below could have been executedby the Decree-holder immediately after the said decree.

x x x x x x x x x x

10. Furthermore, so long as there is any question sub-judicebetween the parties, those affected shall not be compelled topursue the so often thorny path of execution which, if the finalresult is against them, may lead to any disadvantage. Nor in suchcase as this is the judgment-debtor prejudiced as he has indeedobtained a boon of delay which is so dear to debtors and if thejudgment-debtor is virtuously inclined, there is nothing to preventhis paying what he owes into Court, specially when in this casethe judgment-debtor is a welfare State”.

30. The period of limitation, thus, for execution also begins fromthe date of the decision of the appellate court.

31. The decision in Manohar Shankar Nale (supra) does notadvance the case of the respondent. In that case, the material factualdifference was that the decree holder sought to place reliance on thependency of the review petition to claim that the limitation started upondisposal of the review petition. The Hon’ble Supreme Court did not findfavour with the submission, for the obvious reason that a review, unlikean appeal, does not tantamount to continuation of the original proceedings.

333 334Ravinder Prakash Punj v. Punj Sons Pvt. Ltd. (Vipin Sanghi, J.)

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32. In the present case, the appeal against the judgment dated30.05.1997, whereby the award was made ‘rule’ of the court, came tobe dismissed by this court on 03.03.2009. The period of limitation forpreferring the execution thus, began from 03.03.2009. The executionpetition was preferred by the respondent herein within the said period i.e.on 30.06.2009. Consequently, the same was not barred by limitation.Accordingly, the plea of the appellant of the execution petition beingbarred by limitation stands rejected.

33. The above narration of the manner in which the properties andbusinesses being run by the family were treated by the parties and, withtheir consent, by the learned Arbitrators while making both the awardsclearly shows that the parties did not consider the closely held privatelimited companies held by them to be separate juristic entities, rather theywere treated as partnership concerns and upon the consent of the parties,the learned Arbitrators lifted the corporate veil of the closely held privatelimited companies. The learned Arbitrators were thus not inhibited by themere cloak donned by various business entities as that of a companyregistered under the Companies Act, 1956. The learned Arbitrators weregiven the freedom to equitably distribute the shareholdings in the companiesdistinctly from the assets held by them. We have set out the relevantclauses of the reference dated 09.10.1989 which clearly shows that theparties contemplated that, to achieve an overall settlement, reallocation oftheir assets may be necessary and so as to meet any possible subsequentobjection on the ground that the companies are separate juristic entitiesand not bound by such reallocation of assets of companies, the Board ofDirectors and shareholders of the various companies passed resolutionsagreeing to consider themselves to be bound by the directions given bythe sole Arbitrator. The mode and manner of division & distribution ofthe ownership, management and business of companies envisaged thatthe Arbitrator may give appropriate directions for transfer of properties,transfer of shares, interest and other matters as deemed necessary.Therefore, there was no impediment in the Executing Court in lifting thecorporate veil and treating PSPL as a partnership concern and distributingits assets in terms of the award.

34. The award, on the one hand, provides that PSPL shall continueto exist and run its business under the chairmanship of Sh.V.P. Punj and

Sh. S.N.P. Punj, Managing Director. It also provides that on winding upof PSPL, the factory industrial land shall be divided, as aforesaid, in threeequal shares. On the other hand, it also provides that 1/3rd share in thefactory land at Kalkaji shall go each to Group ‘A’, Group ‘C’ and Group‘D’.

35. Merely because the company PSPL continues to exist in termsof the award, it does not mean that the said factory land at Kalkajibelonging to PSPL could not be distributed in equal ratio between Groups‘A’, ‘C’ & ‘D’. The title of the company PSPL in respect of the entirefactory land at Kalkaji has not yet been perfected as disputes are statedto be pending with the Government authorities. Moreover, the 3-Acreland allotted to PSPL is held by it on leasehold basis. Obviously, the saidland cannot be transferred or hired of by PSPL to give legal effect to thedistribution of the factory land as envisaged in the award. That, however,in our view, should not have inhibited the Executing Court from directingprovisional physical demarcation of the factory land at Kalkaji fordistribution amongst the Groups ‘A’, ‘C’ & ‘D’ so that each of themcould use, exploit and enjoy, in the meantime, the said factory land inequal shares. Otherwise, it has been leading to, and would continue tolead to a highly inequitable situation not contemplated under the award,with respondent No. 3 enjoying about 75% of the said factory land andthe appellant enjoying about 25% of the said factory land, and respondentNo. 3 being completely ousted therefrom. The provisional division anddistribution of the said factory land does not militate against the continuedexistence of PSPL. In our view, on a complete reading of the award, itis clear that the learned Arbitrator also envisaged the said course ofaction to be adopted as, otherwise, the group holding majority shares andDirectors in PSPL could take control of the entire factory land at Kalkajiand defeat the distribution of the said factory land as envisaged under theaward, particularly when the award provides for the continued existenceof PSPL. In our view, clause 14 of para 3.1 of the award, whichprovides that on winding up of PSPL the factory industrial land at Kalkajishall belong to Groups ‘A’, ‘C’ & ‘D’ means that upon such windingup, the legal title to the said land was to be transferred to Groups ‘A’,‘C’ & ‘D’, However, the said clause does not contra indicate the actualphysical provisional division of the said factory land for use, enjoyment

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and exploitation by the said three groups till so long as PSPL continuesto exist.

36. There can be no doubt that the assets of a company cannot bede jure transferred without completing the procedure prescribed by law,i.e., by obtaining directions from a competent Court constituted underthe Companies Act, 1956. However, when the award distributes thefactory land belonging to the company PSPL amongst the three groupsin equal shares, it is open to one or the other group, who wishes toenforce the said direction to require the others to take all steps necessaryfor effectuation of the award both, in letter & spirit.

37. Accordingly, we allow the present appeal, set aside the impugnedorder and restore the execution petition to its original number. We directthat the factory land at Kalkaji belonging to PSPL be provisionally dividedin three equal shares by metes and bounds and be allocated to Groups‘A’, ‘C’ & ‘D’, either as mutually agreed upon by them, or by draw oflots.

38. To give effect to the aforesaid directions and for passing furtherorders, the parties should appear before the Executing Court on 14.09.2012

39. The appeal stands disposed of leaving the parties to bear theirrespective Costs.

ILR (2012) 6 DELHI 338CS (OS)

RAVI SHANKAR SHARMA …..PLAINTIFF

VERSUS

KALI RAM SHARMA AND ORS. …..DEFENDANTS

(VALMIKI J. MEHT A, J.)

CS (OS) NO. : 2329/1999 DATE OF DECISION: 07.09.2012

Code of Civil Procedure, 1908—Section 2, Order 12Rule 6—Delhi Land Reforms Act, 1985—Plaintiff filedsuit for partition, possessions, rendition of account,injunction etc alleging that suit properties which werevested with his grandfather, on death of hisgrandfather, were inherited by him and defendant no.1 (his father)—Defendant no. 1 raised variousobjections including that suit was barred by DelhiLand Reforms Act. Held—As per the provisions ofOrder 12 Rule 6 CPC, A Court is entitled to decide thesuit on the basis of admitted facts at any stage—Adecree as per section 2 (2) CPC includes dismissal ofa suit and therefore, the provision of Order 12 Rule 6CPC applies even for dismissal of a suit which is alsocalled a decree.—Since properties in the hand ofdefendants not was self acquired, suit dismissed.

In view of the fact that the only cause of action which ismentioned in the plaint is of the defendant no.1 inheritingthe properties from his ancestor/father Sh. Tulsi Ram, onaccount of death of Sh.Tulsi Ram on 2.11.1980, theproperties which have been inherited by the defendant no.1, are in fact self-acquired properties in the hands ofdefendant no.1 in view of the ratio of the decisions of theSupreme Court referred to above. Once there is no HUF

337 338Ravinder Prakash Punj v. Punj Sons Pvt. Ltd. (Vipin Sanghi, J.)

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which is alleged to exist of Sh.Tulsi Ram, and the inheritanceby defendant no. 1 is self-acquired in his hands, then, theplaintiff cannot claim any right in such properties.

(Para 7)

I do not find it necessary to go into the defence ascontained in the written statement of the bar of the suit onaccount of provisions of Delhi Land Reforms Act, 1985 asunder Order 12(6) I may only look at the admitted facts inthe suit/plaint, and whether the case as set up entitles theplaintiff to the reliefs as claimed or not. (Para 8)

Important Issue Involved: As per the provisions of Order12 Rule 6 CPC, a Court is entitled to decide the suit on thebasis of admitted facts at any stage. A decree as per section2 (2) CPC includes dismissal of a suit and therefore theprovision of Order 12 Rule 6 CPC applies even for dismissalof a suit which is also called a decree.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFF : Mr. Ravi Prakash Gupta. Adv.

FOR THE DEFENDANT : Mr. Amit Jain, Adv. for D-6.

CASES REFERRED TO:

1. Thamma Venkata Subbamma Thr. LR vs. ThammaRattamma & Ors., 1987 (3) SCC 294.

2. Yudhishter vs. Ashok Kumar AIR 1987 SC 558.

3. Commissioner of Wealth Tax, Kanpur etc. vs. ChanderSen AIR 1986 SC 1753.

RESULT: Suit dismissed.

VALMIKI J. MEHTA, J. (ORAL)

1. The subject suit has been filed by the plaintiff for partition,possession, rendition of accounts, injunction, etc. on the ground that the

suit property vested with Sh. Tulsi Ram, who was the grandfather of theplaintiff and the father of the defendant no.1. As per the suit/plaint,plaintiff has rights in the properties inherited by the defendant no.1 fromhis father, and which properties are set out in para 4 of the plaint asunder:

“(A) AGRICULTURAL LAND – 29 BIGHAS 5 BISWAS

(i) Khasra No.78/1 (3 Bighas 11 Biswas)

(ii) Khasra No.78/9 (4 Bighas)

(iii)Khasra No.78/10 (4 Bighas 5 Biswas)

(iv)Khasra No.78/11 (4 Bighas 5 Biswas)

(v) Khasra No.78/12 (4 Bighas 16 Biswas)

(vi)Khasra No.81/6 (4 Bighas 16 Biswas)

(vii) Khasra No.81/15 (3 Bighas 12 Biswas) Situated in VillageRithala, Delhi-110085

(B) One Double storey house constructed over the plotmeasuring about 75 sq. yds. bearing House No.161/164situated at Village Rithala, Delhi.

(C) One double storey house constructed on plot bearing No.67measuring about 125 sq. yds. including one shop.

(D) RESIDENTIAL PLOT

(i) Plot No. 931 (02 Bighas 04 Biswas)

(ii) Plot No.1012/1 (08 Biswas)

(iii) Plot No.1013 (02 Bighas 11 Biswas)”

2. The date of death of the grandfather, Sh. Tulsi Ram is 2.11.1980,and as noted in the order of this Court dated 4.9.2012. On 4.9.2012, thefollowing order was passed:-

“I.A. No. 10268/2012 (u/O XIV R 2(2) CPC for deciding thepreliminary issues, by plaintiff)

As per the suit plaintiff claims right to the properties of lateSh. Tulsi Ram who was said to have expired on 02.11.1980 i.eafter the passing of the Hindu Succession Act, 1956. I have put

Ravi Shankar Sharma v. Kali Ram Sharma (Valmiki J. Mehta, J.)339 340

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the counsel for the plaintiff to notice of the judgments deliveredin The Commissioner of Wealth Tax, Kanpur and Ors. vs.Chander Sen Ors., 1986 AIR 1753 and Yudhister Vs. AshokKumar, 1987 AIR 558 which say that if a person inheritedproperty from his paternal ancestor after passing of HinduSuccession Act, 1956, the inheritance will be as a self-acquiredproperty and not as HUF property. Prima facie, therefore, thesuit, on the admitted facts, does not make out a legal entitlementwhich needs to be adjudicated and, therefore, may have to bedismissed. Counsel for the plaintiff after having gone through theaforesaid judgments on the matter being passed over prays forfurther time to address arguments.

At request, adjourned to 7th September, 2012.”

3. Issues in this case were framed on 21.10.2002 and whereafter,the suit was to be listed for deciding of a preliminary issue under IANo.10268/2012, and as per which, it had to be decided whether theproperties which are governed by the Delhi Land Reforms Act, 1985,cannot be the subject matter of the present suit. Issue nos. 2 and 3 wereframed on this aspect. Therefore, plaintiff wanted to get the issues,which were got framed on behalf of the contesting defendant of bar ofthe suit under Section 185 of the Delhi land Reforms Act, 1985 decidedas preliminary issues.

4. I have already reproduced the order dated 4.9.2012 above. It isadmitted that the defendant no.1 inherited the property from his fatherSh.Tulsi Ram, and who is the grandfather of the plaintiff, when Sh. TulsiRam died on 2.11.1980. It is not the case of the plaintiff that Sh.TulsiRam was a member of an existing HUF. The only case as per the plaintiffis that on the death of Sh. Tulsi Ram, his son-defendant no.1-the fatherof the plaintiff, received the properties from Sh.Tulsi Ram as ancestralproperties in his hands.

5. This issue is no longer res integra that if a male member inheritsproperty from his paternal ancestors after passing of the Hindu SuccessionAct in 1956 then the inheritance in his hands is not an HUF property butonly as a self-acquired property. This is the ratio of the judgments of theSupreme Court in the cases of Commissioner of Wealth Tax, Kanpuretc. v. Chander Sen AIR 1986 SC 1753 and Yudhishter v. Ashok

341 342Ravi Shankar Sharma v. Kali Ram Sharma (Valmiki J. Mehta, J.)

Kumar AIR 1987 SC 558. These judgments have also thereafter beenrelied upon in the subsequent judgments of the Supreme Court.

6. As per the provisions of Order 12 Rule 6 CPC, a Court is entitledto decide the suit on the basis of admitted facts at any stage. Theintendment of Order 12 Rule 6 CPC is that litigants should not undergorigours of long pendency of a case and tribulations of a trial if on theadmitted facts the entitlement of the plaintiff to the reliefs is not madeout. The salutary object under Order 12 Rule 6 CPC is utilized in orderto cut short such litigation which should no longer remain pending. I maynote that a decree as per Section 2(2) CPC includes dismissal of a suitand therefore the provision of Order 12 Rule 6 CPC applies even fordismissal of a suit which is also called a decree.

7. In view of the fact that the only cause of action which ismentioned in the plaint is of the defendant no.1 inheriting the propertiesfrom his ancestor/father Sh. Tulsi Ram, on account of death of Sh.TulsiRam on 2.11.1980, the properties which have been inherited by thedefendant no. 1, are in fact self-acquired properties in the hands ofdefendant no.1 in view of the ratio of the decisions of the Supreme Courtreferred to above. Once there is no HUF which is alleged to exist ofSh.Tulsi Ram, and the inheritance by defendant no. 1 is self-acquired inhis hands, then, the plaintiff cannot claim any right in such properties.

8. I do not find it necessary to go into the defence as contained inthe written statement of the bar of the suit on account of provisions ofDelhi Land Reforms Act, 1985 as under Order 12(6) I may only look atthe admitted facts in the suit/plaint, and whether the case as set upentitles the plaintiff to the reliefs as claimed or not.

9. Learned counsel for the plaintiff has sought to place relianceupon the judgment of the Supreme Court in the case of Thamma VenkataSubbamma Thr. LR vs. Thamma Rattamma & Ors., 1987 (3) SCC294. I really fail to understand as to how this cited judgment appliesinasmuch as that judgment even as per the counsel for the plaintiffapplies to the fact that once there exists a Mitakshara property the samecannot be alienated to the detriment of the other members. There is noMitakshara coparcenery in the present case as I have already statedabove that the defendant no.1 inherited the properties as self-acquired

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properties and not as a Mitakshara coparcener. The judgment cited bythe plaintiff has therefore no application to the facts of the present case.

10. In view of the above, the suit of the plaintiff does not make outany legal entitlement for the reliefs claimed, and is therefore dismissedleaving the parties to bear their own costs.

ILR (2012) 6 DELHI 343CS (OS)

SHEENAM RAHEJA ….PLAINTIFF

VERSUS

AMIT WADHWA ….DEFENDANT

(REVA KHETRAPAL, J.)

CS (OS) NO. : 990/2010 DATE OF DECISION: 10.09.2012

Code of Civil Procedure, 1908—Section 3—Plaintifffiled suit seeking declaration against defendant thatproceedings initiated by defendant for dissolution ofmarriage between them on ground of irreconcilabledifferences pending before Superior Court ofCalifornia, U.S was illegal, invalid and void ab-initio—During pendency of suit, however, decree fordissolution of marriage was passed by Superior Courtof California and thus, plaintiff amended the plaint toseek appropriate orders declaring order or dissolutionof marriage as null and void and non-est in eyes oflaw—As per plaintiff, the parties were married accordingto Hindu rites and ceremonies at New Delhi and twofemale children were born out of their wedlock—Theirmarriage ran into troubled waters on account of crueltyinflicted upon her by defendant and his relatives—

343 344Sheenam Raheja v. Amit Wadhwa (Reva Khetrapal, J.)

Plaintiff became unwell and came to India along withher two children—Mother-in-law of the plaintiffclandestinely took away the children to U.S. and plaintiffwas forced to live with her parents as her matrimonialhome in New Delhi was locked by her mother-in-law-Plaintiff came to know through close relatives ofparties that defendant had filed proceedings before aCourt in U.S. and on checking website of Court, shecame to know about the case for dissolution ofmarriage; thus plaintiff initiated present suit in Delhi.Held—The first and foremost requirement ofrecognizing a foreign matrimonial judgment is that therelief should be granted to the petitioner on a groundavailable under the matrimonial law under which theparties were married, or where the respondentvoluntarily and effectively submits to the jurisdictionof the forum and contests and claim which is based ona ground available under the matrimonial law underwhich the parties are married.—Plaintiff did not contestthe claim nor agree to the passing of decree—Decreeof dissolution of marriage passed by superior court ofCalifornia held to be null and void and not enforceablein India.

The Supreme Court thereafter deduced the following rule asregards to the binding effect of a decree of dissolution ofmarriage passed by a foreign court :-

“The jurisdiction assumed by the foreign Court as wellas the grounds on which the relief is granted must bein accordance with the matrimonial law under whichthe parties are married. The exceptions to this rulemay be as follows:- (i) where the matrimonial action isfiled in the forum where the respondent is domiciledor habitually and permanently resides and the relief isgranted on a ground available in the matrimonial lawunder which the parties are married; (ii) where therespondent voluntarily and effectively submits to the

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jurisdiction of the forum as discussed above andcontests the claim which is based on a ground availableunder the matrimonial law under which the parties aremarried; (iii) where the respondent consents to thegrant of relief although the jurisdiction of the forum isnot in accordance with the provisions of the matrimoniallaw of the parties.” (Para 12)

In Smt.Anubha v . Vikas Aggarwal & Ors, 100 (2002) DLT682, this Court relying upon the decision of the SupremeCourt in the case of Narasimha Rao (supra), held that aslaid down by the Supreme Court, the first and foremostrequirement of recognising a foreign matrimonial judgmentis that the relief should be granted to the petitioner on aground available under the matrimonial law under which theparties are married, or where the respondent voluntarily andeffectively submits to the jurisdiction of the forum andcontests the claim which is based on a ground availableunder the matrimonial law under which the parties aremarried. On the facts of the case before it, the Court furtherheld as under:-

“25. The ground on which the marriage of thedefendant was dissolved is not available in the HinduMarriage Act. The parties are Hindus. Their marriagewas solemnised according to the Hindu rites. Theirmatrimonial dispute or relationship was, therefore,governable by the provisions of Hindu Marriage Act.Since the plaintiff did not submit to the jurisdiction ofthe USA Court nor did she consent for the grant ofdivorce in the US Court the decree obtained by thedefendant from the Connecticut Court of USA isneither recognisable nor enforceable in India.”

(Para 14)

Important Issue Involved: The first and foremostrequirement of recognizing a foreign matrimonial judgmentis that the relief should be granted to the petitioner on aground available under the matrimonial law under which theparties were married, or where the respondent voluntarilyand effectively submits to the jurisdiction of the forum andcontests the claim which is based on a ground availableunder the matrimonial law under which the parties aremarred.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFF : Mr. Deepak Anand, Advocates alongwith plaintiff in person.

FOR THE DEFENDANT : Defendant is Ex-parte.

CASES REFERRED TO:

1. Smt.Anubha vs. Vikas Aggarwal & Ors, 100 (2002) DLT682.

2. Veena Kalia vs. Dr. Jatinder Nath Kalia and Anr., 59(1995) DLT 635.

3. Neeraja Saraph (Smt) vs. Jayant V.Saraph and Anr, (1994)6 SCC 461.

4. Y. Narasimha Rao and Others vs. Y.Venkata Lakshmiand Another, (1991) 3 SCC 451.

RESULT: Suit decreed.

REVA KHETRAPAL, J.

1. The plaintiff has filed the present suit seeking a decree ofdeclaration in favour of the plaintiff and against the defendant, declaringthat the proceedings initiated by the defendant for the dissolution ofmarriage between the parties on the ground of irreconcilable differences,arising out of File No.1-09-FL-149089, pending before the Superior Courtof California, County of Santa Clara, San Jose, USA are illegal, invalid

345 346Sheenam Raheja v. Amit Wadhwa (Reva Khetrapal, J.)

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and void ab-initio.

2. During the pendency of the present suit, however, a decree ofdissolution was passed by the Superior Court of California, County ofSanta Clara, San Jose, USA in favour of the defendant/Husband andthereupon the plaintiff amended her plaint to seek appropriate ordersdeclaring the order of dissolution of marriage dated January 14, 2011 andJanuary 18, 2011 passed by the Superior Court of California as null andvoid and non-est in the eyes of law.

3. The plaintiff and defendant were married on 15th April, 2000according to Hindu rites and ceremonies at New Delhi. The marriage wasduly registered under the Hindu Marriage Act, 1955 on 24th April, 2000.From the wedlock two female children were born on 17th August, 2001and 2nd July, 2004, aged 9 years and 6 years respectively. Both thechildren are presently in the custody of the defendant, who, as detailedin the plaint, has taken them away clandestinely. Shorn of details, themarriage of the plaintiff ran into troubled waters on account of crueltyinflicted upon her by the defendant, his mother, sister and other relatives.The mother and sister of the defendant publicly humiliated the plaintifffor dowry, whenever she visited India, even though for short spells. Onaccount of said cruelty and harassment, the plaintiff had become unwell,and on 7th July, 2008, when the plaintiff came to India along with hertwo children she had to be hospitalized at New Delhi. During this periodthe mother-in- law of the plaintiff, without the knowledge and consentof plaintiff, preponed the already confirmed tickets of the two childrenfor 17th August, 2008 and took them away with her to USA on 5thAugust, 2008. The aforesaid act of the plaintiff’s mother-in-law naturallycaused apprehension in the mind of the plaintiff about her safety andsecurity in USA, as it became clear to her that the defendant had nointention to call her to USA. The mother-in-law of the plaintiff withmalafide intentions locked the matrimonial home i.e H-87, Kirti Nagar,New Delhi and all the belongings of the plaintiff therein. Since the parentsof the plaintiff had limited financial resources, the plaintiff in order towithdraw money from her savings bank account visited the State Bankof Patiala, Branch Pusa Road, New Delhi and was flabbergasted todiscover that her savings had already been withdrawn fraudulently by thedefendant and his relatives by forging her signatures. On coming to

know that her bank account had been cleaned out in this manner, theplaintiff informed the law enforcing agencies and got registered FIRbearing No.164/2009 under Sections 420/467/468/471/120-B IPC withthe Economic Offences Wing, Crime Branch (Delhi Police), where thematter is still pending for investigation. To be noted at this juncture thatthe plaintiff had also lodged a complaint in USA against the defendant fordomestic violence committed in the USA.

4. As averred in the plaint, the plaintiff in the third week of March,2010, through a whisper campaign amongst close relatives of the plaintiffand defendant, came to know that the defendant has filed someproceedings before a Court in USA. The plaintiff checked the website ofthe said Court and came to know that a case for dissolution of marriageof the parties on the ground of irreconcilable differences had been filedby the defendant before the Superior Court of California, County ofSanta Clara, San Jose, USA. It is the allegation of the plaintiff that theplaintiff was never served with the petition and other pleadings by thedefendant, who has played a fraud on the judicial process to the extentthat he did not even disclose the address of the plaintiff to the CalifornianCourt. The plaintiff on 8th April, 2010 after obtaining copies of the Courtpapers through her friends in USA sent a letter to the Court at California,disputing the jurisdiction of the said Court to entertain the petition of thedefendant for dissolution of her marriage, solemnized and registered underthe provisions of the Hindu Marriage Act, 1955. The plaintiff also institutedthe present suit seeking a declaration that the proceedings before theSuperior Court at California were illegal, invalid and void ab-initio.

5. During the pendency of this suit, the plaintiff learnt that a finalorder of dissolution of marriage was granted by the Superior Court ofCalifornia, County of Santa Clara, San Jose, USA in favour of the defendanton January 14, 2011 (vide notice of entry judgment dated January 18,2011). The plaintiff now seeks to assail the said order of dissolution ofthe marriage as null, void and non-est by amendment of the plaint.

6. Summons of the institution of the present suit were issued to thedefendant on 18th May, 2010. By an order of the same date this Courtopined that prima facie the continuance of proceedings in the SuperiorCourt of California, County of Santa Clara, San Jose, USA would act to

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the prejudice of the plaintiff, as she did not appear to have any meansto contest the said proceedings, and, in the circumstances, the defendantwas restrained from proceeding further with the aforesaid case. Thedefendant was duly served with the order of this Court along with thecopy of plaint and application by all modes including E-mail, RegisteredA.D post and UPC at the local address and at the USA address-3651,Cabernet, Vineyards Circle, San Jose, CA 95117, USA. Acknowledgementdated 5th June, 2010, signifying the receipt of the copy of the plaint andthe injunction order of this Court, duly served upon the defendant by theUnited States Postal Service and Indian Postal Service, are placed onrecord by the plaintiff. It is pleaded that despite being aware of therestraint order passed by this Court, the defendant knowingly, wilfullyand intentionally continued to proceed with the case in USA in breach ofthe interim injunction passed by this court. The plaintiff also served uponthe defendant legal notice dated 12th October, 2010, making the defendantaware of the consequences ensuing from the breach of injunction orderdated 18th May, 2010 passed by this Court, but to no avail.

7. Mr. Deepak Anand, the learned counsel representing the plaintiff,had drawn my attention to the fact that the order of the Superior Courtof California, County of Santa Clara, San Jose, USA dated September 3,2010 unequivocally shows that the order of this Court was on the fileof the said Court. The relevant portion of the order of the Superior Courtof California states:

“The Court notes that it received a letter from Wife dated May28, 2010, to which she attached a non-certified copy of an orderdated May 18, 2010, from the High Court of New Delhi in NewDelhi, India. The order, which appears to bear two case numbers-6701/2010 and 99/2010 (sic.)-purports to prohibit Husband fromproceeding with his divorce action in California based on thetheory that California recognizes divorce based on a finding ofirreconcilable differences which, according to the order, iscontrary to Indian marriage law.”

8. After noting that this Court had prohibited the husband fromproceeding with the divorce action in California, the Court at California,however, observed that the Indian order did not indicate that the husband

was ever served with the Indian order. The learned counsel for theplaintiff contended and I think rightly so, that the said observation is ofno consequence in view of the fact that there is proof of service uponthe defendant on 5th June, 2010, through the United States Postal Service,which even bears the signatures of the defendant, namely, Amit Wadhwawith the date and time of service i.e 05-June-2010 – 10.35 A.M endorsedon it. This is quite apart from the fact that the defendant was servedthrough all other modes including E-mail, proof whereof has been placedon record. The learned Superior Court of California, despite full andcomplete knowledge of the existence of the injunction order passed bythis Court, authorized the defendant to proceed with his request to enterthe plaintiff’s default in case bearing No.1-09-FL-149089 for legalseparation and dissolution of marriage initiated by the defendant in USA.

9. The learned counsel for the plaintiff on the aforesaid facts andon the basis of the affidavits by way of evidence filed by the plaintiffcontends that the marriage between the parties having been solemnizedand registered under the provisions of the Hindu Marriage Act, 1955 inNew Delhi, within the jurisdiction of this Court, its dissolution could beeffected only under the said Act. Both the parties are Indian citizensholding Indian passports and are permanent residents of India, hence aregoverned by Indian laws. The Superior Court of California does not havethe jurisdiction to grant decree of divorce as per the provisions of HinduMarriage Act, 1955, as neither the marriage between the parties wassolemnized in USA nor the plaintiff was residing within the jurisdictionof the Superior Court of California at the time of the presentation of thepetition. The jurisdiction assumed by the foreign Court as well as thegrounds on which the relief is claimed must be in accordance with thematrimonial law under which the parties are married i.e. the Hindu MarriageAct, 1955. The plaintiff and the defendant have both resided together inIndia and hence as per Section 19 of the Hindu Marriage Act, 1955, thejurisdiction for the grant of decree of divorce vests with the Courts inIndia. It is further the contention of the learned counsel for the plaintiffthat the plaintiff has till date not submitted herself to the jurisdiction ofthe foreign Court i.e Superior Court of California, County of Santa Clara,San Jose, USA nor was she represented through counsel and the Courtpassed the decree in her absence.

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10. The learned counsel placed reliance on the provisions of Section13 of the Code of Civil Procedure, 1908 to contend that the plaintiff isentitled to a decree of declaration as claimed by her. For the sake offacility of reference, the provisions of Section 13 of the CPC arereproduced hereunder:-

“13. When foreign judgment not conclusive- A foreign judgmentshall be conclusive as to any matter thereby directly adjudicatedupon between the same parties or between parties under whomthey or any of them claim litigating under the same title except-(a) where it has not been pronounced by a Court of competentjurisdiction; (b) where it has not been given on the merits of thecase; (c) where it appears on the face of the proceedings to befounded on an incorrect view of international law or a refusal torecognize the law of India in cases in which such law is applicable;(d) where the proceedings in which the judgment was obtainedare opposed to natural justice; (e) where it has been obtained byfraud; (f) where it sustains a claim founded on a breach of anylaw in force in India.”

11. Mr. Anand relied on the decision in the case of Y. NarasimhaRao and Others Vs. Y.Venkata Lakshmi and Another, (1991) 3SCC 451, where the Hon’ble Supreme Court interpreted each and everyclause of Section 13 of the Civil Procedure Code vis-a-vis matrimoniallaw with a view to secure required certainty and protect the sanctity ofthe institution of marriage and the unity of family which are thecornerstones of our societal life. Clauses (b), (c), (d) and (f) of Section13 were interpreted by the Supreme Court in the following manner :

“16. Clause (b) of Section 13 states that if a foreign judgmenthas not been given on the merits of the case, the courts in thiscountry will not recognise such judgment. This clause shouldbe interpreted to mean (a) that the decision of the foreigncourt should be on a ground available under the law underwhich the parties are married, and (b) that the decisionshould be a result of the contest between the parties. Thelatter requirement is fulfilled only when the respondent isduly served and voluntarily and unconditionally submits

351 352Sheenam Raheja v. Amit Wadhwa (Reva Khetrapal, J.)

himself/herself to the jurisdiction of the court and conteststhe claim, or agrees to the passing of the decree with orwithout appearance. A mere filing of the reply to the claimunder protest and without submitting to the jurisdiction of thecourt, or an appearance in the court either in person or througha representative for objecting to the jurisdiction of the court,should not be considered as a decision on the merits of the case.In this respect the general rules of the acquiscence to thejurisdiction of the court which may be valid in other matters andareas should be ignored and deemed inappropriate.

17. The second part of clause (c) of Section 13 states thatwhere the judgment is founded on a refusal to recognise the lawof this country in cases in which such law is applicable, thejudgment will not be recognised by the courts in this country.The marriages which take place in this country can only beunder either the customary or the statutory law in force in thiscountry. Hence, the only law that can be applicable to thematrimonial disputes is the one under which the parties aremarried, and no other law. When, therefore, a foreignjudgment is founded on a jurisdiction or on a ground notrecognised by such law, it is a judgment which is in defianceof the law. Hence, it is not conclusive of the mattersadjudicated therein and, therefore, unenforceable in thiscountry. For the same reason, such a judgment will also beunenforceable under clause (f) of Section 13, since such ajudgment would obviously be in breach of the matrimoniallaw in force in this country.

18. Clause (d) of Section 13 which makes a foreign judgmentunenforceable on the ground that the proceedings in which it isobtained are opposed to natural justice, states no more than anelementary principle on which any civilised system of justicerests. However, in matters concerning the family law suchas the matrimonial disputes, this principle has to be extendedto mean something more than mere compliance with thetechnical rules of procedure. If the rule of audi alterampartem has any meaning with reference to the proceedings

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in a foreign court, for the purposes of the rule it should notbe deemed sufficient that the respondent has been dulyserved with the process of the court. It is necessary toascertain whether the respondent was in a position to presentor represent himself/herself and contest effectively the saidproceedings. This requirement should apply equally to theappellate proceedings if and when they are filed by either party.If the foreign court has not ascertained and ensured sucheffective contest by requiring the petitioner to make allnecessary provisions for the respondent to defend includingthe costs of travel, residence and litigation where necessary,it should be held that the proceedings are in breach of theprinciples of natural justice. It is for this reason that we findthat the rules of Private International Law of some countriesinsist, even in commercial matters, that the action should be filedin the forum where the defendant is either domiciled or ishabitually resident. It is only in special cases which is calledspecial jurisdiction where the claim has some real link with otherforum that a judgment of such forum is recognised. Thisjurisdictional principle is also recognised by the JudgmentsConvention of the European Community. If, therefore, the courtsin this country also insist as a matter of rule that foreignmatrimonial judgment will be recognised only if it is of the forumwhere the respondent is domiciled or habitually and permanentlyresides, the provisions of clause (d) may be held to have beensatisfied.”

12. The Supreme Court thereafter deduced the following rule asregards to the binding effect of a decree of dissolution of marriagepassed by a foreign court :-

“The jurisdiction assumed by the foreign Court as well as thegrounds on which the relief is granted must be in accordancewith the matrimonial law under which the parties are married.The exceptions to this rule may be as follows:- (i) where thematrimonial action is filed in the forum where the respondent isdomiciled or habitually and permanently resides and the relief isgranted on a ground available in the matrimonial law under which

the parties are married; (ii) where the respondent voluntarily andeffectively submits to the jurisdiction of the forum as discussedabove and contests the claim which is based on a ground availableunder the matrimonial law under which the parties are married;(iii) where the respondent consents to the grant of relief althoughthe jurisdiction of the forum is not in accordance with theprovisions of the matrimonial law of the parties.”

13. Reliance was also placed by Mr. Anand on the decision ofVeena Kalia v. Dr. Jatinder Nath Kalia and Anr., 59 (1995) DLT635, wherein a learned Single Judge of this Court, Hon’ble Mr. JusticeD.P.Wadhwa (as his Lordship then was) after noting that the petitionerhad never contested the proceedings for divorce filed by the respondentin the Supreme Court at Nova Scotia, held that it would not mean thatshe conceded the jurisdiction of that Court or that the Supreme Court atNova Scotia was the Court of competent jurisdiction. The silence of thewife, which the learned Judge observed, was not because of her ownvolition but because of the constraints which she could not overcome tocontest the proceedings there, could not confer jurisdiction on that Court,more so as the husband was not permanently residing within thejurisdiction of the Supreme Court of Nova Scotia. The Court furtherobserved as under:-

“It is also clear that the ground on which the decree of divorcehad been granted by the foreign Court is not a ground on whichsuch a decree could be granted under the Act. Since the petitionerwife was not in a position to contest the proceedings in a foreignCourt as she had no means to go there and the foreign Court didnot see to it whether the wife was possessed of sufficient fundsand her documentation to visit Canada complete, the rules ofnatural justice stood violated. It is a matter of common knowledgethat mere buying an air ticket is not enough to visit Canada.There are various other formalities to be completed. I am of thefirm view that the foreign judgment on which the husband reliedhas no legal validity in this country.”

14. In Smt.Anubha v. Vikas Aggarwal & Ors, 100 (2002) DLT682, this Court relying upon the decision of the Supreme Court in the

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case of Narasimha Rao (supra), held that as laid down by the SupremeCourt, the first and foremost requirement of recognising a foreignmatrimonial judgment is that the relief should be granted to the petitioneron a ground available under the matrimonial law under which the partiesare married, or where the respondent voluntarily and effectively submitsto the jurisdiction of the forum and contests the claim which is based ona ground available under the matrimonial law under which the parties aremarried. On the facts of the case before it, the Court further held asunder:-

“25. The ground on which the marriage of the defendant wasdissolved is not available in the Hindu Marriage Act. The partiesare Hindus. Their marriage was solemnised according to theHindu rites. Their matrimonial dispute or relationship was,therefore, governable by the provisions of Hindu Marriage Act.Since the plaintiff did not submit to the jurisdiction of the USACourt nor did she consent for the grant of divorce in the USCourt the decree obtained by the defendant from the ConnecticutCourt of USA is neither recognisable nor enforceable in India.”

15. The learned counsel for the plaintiff also vehemently contendedthat the defendant-husband has practiced fraud upon the Court at USAinasmuch as no summons were ever served on the plaintiff at any pointof time. The proof of service of summons do not have anyacknowledgement/receipt/signature of the person to whom the summonsand copies were delivered. The issue of service of summons, however,need not be delved into in view of the observations made hereinafter.

16. In the instant case, the Superior Court of California has passedthe decree of dissolution of marriage on the ground of irreconcilabledifferences. The said ground, not being a ground available for dissolutionof marriage under Section 13 of the Hindu Marriage Act, 1955 underwhich the marriage between the parties was contracted, it cannot be saidthat the judgment is passed on merits. Further, it can, by no stretch ofimagination, be said that the decision of the Superior Court of Californiawas the result of the contest between the parties. On the contrary, thejudgment dated 14.01.2011 shows no application of mind or appreciationof facts and is merely mechanical in its form as well as substance.

Moreover, the impugned proceedings and the decree of dissolution are inviolation of the principles of natural justice, which the Supreme Court inthe case of Narasimha (supra) interpreted to mean something more thanmere compliance with the technical rules of procedure. It was observedby the Supreme Court that it should not be deemed sufficient that therespondent had been duly served with the process of the court but itmust also be ascertained whether the respondent was in a position topresent or represent himself/herself and contest effectively the saidproceedings and if the foreign court had not ascertained and ensuredeffective contest by requiring the petitioner to make all necessary provisionsfor the respondent to defend including the costs of travel, residence andlitigation where necessary, it should be held that the proceedings were inbreach of the principles of natural justice. In this regard, the order dated18.05.2010 passed by this Court and the order dated 03.09.2010 passedby the Superior Court of California are of significance. This Court on18.05.2010 concluded that prima facie the continuance of proceedingsin the Superior Court of California would act to the prejudice of theplaintiff, as she did not appear to have any means to contest the saidproceedings, and, in the circumstances, the defendant was restrainedfrom proceeding further with the aforesaid case till the next date ofhearing which was 21.10.2010. The Superior Court of California on03.09.2010, despite being aware of the order of this Court, disregardedthe same merely on the technical ground that the order did not indicatethat the husband was ever served with the Indian order and in completelyignoring the principles of natural justice, concluded that the Court had thejurisdiction to hear the husband’s petition for dissolution of marriage andthat there was no legal basis to stay the divorce proceedings, authorizingthe husband to proceed with his request to enter wife’s default.

17. The cumulative effect of the aforesaid facts, in my consideredopinion, is that the decree of dissolution of marriage passed by theSuperior Court of California cannot be said to have been passed onmerits nor can it be said to be in compliance with the principles of naturaljustice. The plaintiff-wife did not contest the claim nor agree to thepassing of the decree. In fact, the plaintiff in the present case did nothave the wherewithal to contest the impugned proceedings. As noticedabove even her bank account had been fraudulently operated by the

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defendant and his relatives by forging her signatures and First InformationReport in this regard was lodged by her being FIR No.164/2009 underSections 420/467/468/471/120-B IPC, in respect of which Status Reporthas been filed by the Investigating Agency from time to time. In thesecircumstances, the judgment, having been passed in default of wife’sappearance, is clearly in violation of the principle of audi alteram partemas enunciated by the Supreme Court with reference to foreign judgmentsrendered in matrimonial disputes, where the wife is not in a position tocontest the case in a foreign jurisdiction, resulting in grave injustice tothe wife.

18. Lastly, this Court cannot help but refer to the followingobservations made by the Hon’ble Supreme Court in Neeraja Saraph(Smt) v. Jayant V. Saraph and Anr, (1994) 6 SCC 461, which casepertained to desertion of an Indian wife by an NRI husband:-

“...But the rule of domicile replacing the nationality rule in mostof the countries for assumption of jurisdiction and granting reliefin matrimonial matters has resulted in conflict of laws. What thisdomicile rule is not necessary to be gone into. But feasibility ofa legislation safeguarding interest of women may be examined byincorporating such provisions as-

(1) No marriage between a NRI and an Indian womanwhich has taken place in India may be annulled by aforeign court;

(2) Provision may be made for adequate alimony to thewife in the property of the husband both in India andabroad.

(3) The decree granted by Indian courts may be madeexecutable in foreign courts both on principle of comityand by entering into reciprocal agreements like Section44-A of the Civil Procedure Code which makes a foreigndecree executable as it would have been a decree passedby that court.”

19. Regretfully the plight of women and their exploitation by NRIhusbands is yet to be ameliorated through legislative measures as suggestedin the said case.

20. In view of the aforesaid, the decree of dissolution of marriagepassed by the Superior Court of California in favour of the defendant cannot be said to be conclusive under Section 13 of the Civil ProcedureCode and hence is not enforceable in India. The decree of dissolution ofmarriage dated January 14, 2011 and judgment entered on January 18,2011 passed by the Superior Court of California, County of Santa Clara,San Jose, USA in favour of the defendant be and is hereby declared nulland void and unenforceable in India being opposed to the laws in forcein this country.

21. Resultantly, the suit stands decreed in terms of the prayer madeby the plaintiff. The plaintiff shall also be entitled to recover cost in thesum of Rs.2 lakhs from the defendant.

22. CS(OS) No.990/2010 and IA Nos.182/2012 and 183/2012 standdisposed of.

ILR (2012) 6 DELHI 358RFA

SHANTANU ACHARYA ….APPELLANT

VERSUS

WHIRLPOOL OF INDIA LTD. ….RESPONDENT

(SUDERSHAN KUMAR MISHRA, J.)

RFA. NO. : 329/2012 DATE OF DECISION: 12.9.2012

Code of Civil Procedure, 1908—Order 37—SummarySuit filed by the plaintiff/Respondent seeking recoveryfrom Defendant who was distributor of its products—Leave to Defend pleading lack of territorial jurisdictionfiled by the Defendant—The T rial Court declined theLeave to Defend on the ground that the Application

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seeking Leave to Defend was neither signed by theDefendant nor supported by any Affidavit—Held, thatOrder 37 Rule 5 of the Code postulates that the factssoughts to be disclosed by the Defendant which entitlehim to Leave to Defend need not be on an Affidavitbut should be disclosed in a manner under suchcircumstances, that a similar sanctity, probative valueand presumption of correctness can be accorded tothem by the Court—Open to Defendant to drawattention of the Court either to the facts mentioned inthe Plaint itself or even to the facts of which judicialnotice can be taken as sufficient for the grant ofLeave to Defend.

Important Issue Involved: Facts sought to be disclosedby the Defendant which entitle him to Leave to Defend neednot be on an Affidavit but should be disclosed in a manneror under such circumstances that a similar sanctity, probativevalue and presumption of correctness can be accorded tothem by the Court.

[An Ba]

APPEARANCES:

FOR THE APPELLANT : Ms. Priyanka Upadhyay, Advocates.

FOR THE RESPONDENT : Mr. Tarun Sharma, Advocate.

CASES REFERRED TO:

1. Mechelec Engineers & Manufacturers vs. Basic EquipmentCorporation; and again in Neebha Kapoor vs. JayantilalKhandwala and Ors., AIR 2008 SC 1117.

2. Rama Vision Ltd. vs. Couvery Elecronics Ltd. and Anr.,I.A. No.536/99 in S. No.794/1996.

3. Gainda Mull Hem Raj vs. Arora Bros. and Ors., AIR1973 Delhi 141.

4. Sm. Kiranmoyee Dassi vs. Dr. J. Chatterjee, AIR 1949Cal 479.

RESULT: Appeal dismissed.

SUDERSHAN KUMAR MISRA, J. (ORAL)

RFA 329/2012 & CM Nos.13314 (delay) & 13316/2012 (delay inrefiling)

1. I have heard counsel for both parties at length.

2. The respondent, Whirlpool of India Ltd., had instituted a summarysuit under Order XXXVII of the Code of Civil Procedure against theappellant seeking recovery of Rs.18,78,000/-, along with pendente liteand future interest @ 24% per annum against the defendant/appellant. Itwas the case of the plaintiff that the defendant is a sole proprietor of afirm dealing in domestic and home appliances and, at his request, theplaintiff appointed him as a distributor for the sale of its products.Thereafter, and in terms of the agreement between the parties, thedefendant purchased goods from the plaintiff from time to time. Ultimately,with a view to settling the outstandings, a joint meeting took place at theoffice of the plaintiff company at New Delhi on 22nd March, 2004where, out of the total outstandings of Rs.32,78,000/- shown in thebooks of accounts of the plaintiff company, the defendant admitted hisliability to the extent of Rs.18,78,000/-, after adjustment of Rs.14,00,000/- towards certain defective stocks. A copy of the minutes of the aforesaidmeeting held on 22nd March, 2004 was also annexed to the suit. Afterservice of summons for judgment, the defendant applied for leave todefend under Order XXXVII Rule 3 (5) of the CPC on the ground, interalia, that no cause of action in favour of the plaintiff and against thedefendant had arisen within the territorial jurisdiction of the court below.

3. In response, the plaintiff took the stand that a part of cause ofaction had taken place in Delhi since the defendant had approached theplaintiff at Delhi seeking the distributorship, and that the joint meeting inquestion had also taken place on 22nd March, 2004 at New Delhi whenthe defendant agreed to pay a sum of Rs.18,78,000/-. Furthermore,minutes of that meeting dated 22nd March, 2004 were also executedbetween the parties at New Delhi, and the said outstandings of

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Gainda Mull Hem Raj v. Arora Bros. and Ors., AIR 1973 Delhi 141;and in Rama Vision Ltd. V. Couvery Electronics Ltd. and Anr., I.A.No.536/99 in S. No.794/1996, decided on 28.02.2001, where also asimilar preliminary objection was taken by the plaintiff that the applicationfor leave to defend was not supported by an affidavit. In the latter case,while relying upon the ratio in Gainda Mull Hem Raj (supra), this Courtheld that under the circumstances, “in the eyes of law there is no applicationfor leave to defend”.

9. The only other aspect which remains for consideration in thisregard is the option granted by Rule 3(5) of Order XXXVII of the CPCto disclose relevant facts by applying, “on affidavit or otherwise disclosingsuch facts”, as may be deemed sufficient to entitle him to defend thesuit. In this context, whilst no direct authority with regard to the scopeof the expression, “or otherwise disclosing such facts.....”, occurring inRule 3(5) has been brought to my notice; a decision of the Calcutta HighCourt in Sm. Kiranmoyee Dassi v. Dr. J. Chatterjee, AIR 1949 Cal479, which has been quoted with approval by the Supreme Court inMechelec Engineers & Manufacturers v. Basic EquipmentCorporation; and again in Neebha Kapoor v. Jayantilal Khandwalaand Ors., AIR 2008 SC 1117, is of some significance. It states asfollow:

“(c) If the defendant discloses such facts as may be deemedsufficient to entitle him to defend, that is to say, although theaffidavit does not positively and immediately make it clear thathe has a defence, yet, shows such a state of facts as leads tothe inference that at the trial of the action be may be able toestablish a defence to the plaintiff’s claim the plaintiff is notentitled to judgment and the defendant is entitled to leave todefend but in such a case the court may in its discretion imposeconditions as to the time or mode of trial but not as to paymentinto court or furnishing security.”

10. In my view, Order XXXVII of the Civil Procedure Code postulatesan expeditious summary procedure for deciding certain actions broughtin the special circumstances mentioned in that Order. It is with thisobject in mind that once the basic requirements of the Order XXXVII are

Rs.18,78,000/- were also payable by the defendant at New Delhi.

4. After hearing the parties, the plea of lack of jurisdiction raisedby the defendant was rejected by the trial court and leave to defend wasdeclined, inter alia, also on grounds that the application seeking leave todefend was neither signed by the defendant nor was it supported by anyaffidavit. However, the court found that the plaintiff was not entitled tointerest @ 24% per annum, as claimed, since there was no document tosupport its claim and, in its view, it was excessive. Consequently, thesuit was partly decreed for Rs.18,78,000/-, along with interest @ 12%per annum from the date of filing of the suit till realisation, along withcosts.

5. Dissatisfied with this, the defendant has appealed to this Court.It might be noted that the appeal was initially filed after the delay of 622days when it was returned under objections; it was then refiled after afurther delay of 200 days. In view of the Delhi High Court Rules, in casethe appeal is not refiled, after being returned under objections, within thetime granted, it shall amount to a fresh filing. In other words, there isa total delay of 822 days in filing this appeal.

6. The only ground being urged by counsel for by the appellant isthat the settlement dated 22nd March, 2004, relied upon by the plaintiffin the court below is just, “a piece of paper”, and that the same was notsigned at Delhi, therefore, the trial court did not have jurisdiction in thematter.

7. Significantly, even before this Court, counsel for the appellantdoes not deny the signatures of the appellant on the minutes of themeeting dated 22nd March 2004, which the respondent claimed constituteda settlement between the parties and an acknowledgement of debt by theappellant to the tune of Rs.18,78,000/-. The only thing being urged is thatno place of signing is indicated on the document. Be that as it may, thefact remains that even as regards the objection with regard to thejurisdiction raised by the appellant/defendant, even the applicationcontaining the factual matrix upon which this objection is based, is noteven signed nor is it supported by any affidavit.

8. The requirement for the application for leave to defend to besupported by an affidavit has been clearly enunciated by this Court in

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satisfied by a party who brings an action under that provision, thedefendant is obliged to obtain leave to defend the suit by disclosing suchfacts that would appear to the court to be sufficient to entitle him in lawto defend the action. Naturally, for the disclosure of those facts to betaken seriously by the court, and with a view to ensuring that the veryobject of providing summary trial is not easily set at nought by anunscrupulous defendant, the defendant is obliged to disclose relevantfacts under circumstances that enable the court to attach some sanctityto such disclosure. One method, recognized at law, is for the facts reliedupon by the defendant to either be disclosed on an affidavit or in anapplication supported by an affidavit testifying to their correctness. Tomy mind, the expression, “or otherwise disclosing such facts.......”, usedin this sub rule(5) takes its colour from the preceding expression, “byaffidavit”, meaning thereby, that the facts that come to the knowledge ofthe court at the instance of the defendant though not on affidavit, shouldnevertheless be disclosed in such a manner, or under such circumstances,that a similar sanctity and presumption of correctness would be accordedto them by the court. In other words, the expression, “or otherwisedisclosing such facts.....”, should be considered ejusdem generis to thepreceding expression, “on affidavit”. This is more so because if theexpression, “or otherwise disclosing such facts.....”, was to be construedin its ordinary grammatical context, without anything more, then it wouldsimply mean that if the defendant were to state any facts at all; neitheron affidavit, nor under circumstances in which the requisite sanctity orprobity can be attached to them; the court would still be obliged to treatthem with the same sanctity. Such an approach would tend to render thepreceding expression, “on affidavit”, otiose. It would lose its significancealtogether. Such a situation could not have been intended by the legislaturewhen it prescribed the words, “by affidavit or otherwise...”, in Rule 3(5)of Order XXXVII.

11. There is another reason for preferring this approach. Before theinsertion of Sub-Rule (4) in Order VI Rule 15 of the CPC that providesfor verification of pleadings, it was not necessary for pleadings in anordinary civil suit to also be supported by an affidavit. This amendmentwas inserted in the year 1999 and has become effective from 1.7.2002.Obviously, the legislature considered it necessary to prescribe rules that

ensure a greater probity and sanctity to the correctness of facts that arepleaded by the parties even in an ordinary civil suit. Not only that, evenin a summary suit the allegations of fact made in the plaint must besupported by an affidavit. Under the circumstances, to conclude thatwhere a claim in a suit is to be disposed of expeditiously under a summaryprocedure, the opportunity envisaged by the legislature to be afforded tothe defendant to disclose relevant facts; with a view to satisfying thecourt that he should be permitted to defend the action, permits thedefendant to do so in a manner that may have a lower probative value,is inconceivable. To hold otherwise, would mean that while on the onehand, even in an ordinary civil suit, a written statement filed by a defendantasserting facts that go to defeat the claim of the plaintiff are required tonow be supported by an affidavit testifying to their correctness on oathor solemn affirmation, on the other hand, the disclosure of facts by adefendant in a summary suit while seeking leave to defend need not havethe same probative value or sanctity; but once he secures leave to defend,the defendant is then obliged to support the same facts in his writtenstatement, which he is then permitted to file, with an affidavit.

12. Looked at differently, there is no gainsaying the fact that theprovision mandating an application by the defendant to apply for leave todefend is key to the entire concept of summary procedure envisagedunder Order XXXVII of the Code of Civil Procedure. It is the decisionof the Civil Court at this stage which really determines whether it is amatter deserving an expeditious disposal by resorting to summary procedureor whether the action brought by the plaintiff should be left to be triedin the normal course. The normal procedure under the Civil ProcedureCode does not envisage the application for, and grant of Leave to Defend;and the defendant is obliged to enter his defence directly by way of awritten statement. The facts on which the defendant relies in his writtenstatement must necessarily be supported by an affidavit. Surely, whenthe court is called upon to decide the question whether an extraordinary,expeditious procedure envisaging summary disposal is warranted or not,the facts sought to be disclosed by the defendant to demonstrate that theaction brought by the plaintiff does not deserve the benefit of suchexpedited procedure; should also be disclosed in a manner that, at thevery least, has probative value and sanctity similar to a written statement

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filed under the usual procedure. It is hardly conceivable that a lowerstandard should be adopted with regard to the facts being disclosed bythe defendant when the court is considering whether or not to grant leaveto defend in the suit.

13. To my mind, the observation of the Supreme Court in MechelecEngineers & Manufacturers(supra) is also to the same effect. A closereading of the said observation shows that the emphasis is on disclosureof facts that may be deemed sufficient to entitle the defendant to defendthe action as mentioned by the Supreme Court in paragraph 10 of NeebhaKapoor(supra) which read as follows:

“10. ——the Code does not put any embargo on the courtsexercising a suo moto power of granting leave in a case of thisnature. If a court does so even when an application was notfiled, keeping in view the admitted position of the case, we donot see any illegality therein—.”

14. It follows, therefore, that what is really necessary is for thecourt to examine the overall context of the matter keeping in view, notonly the application for leave to defend or the lack of it, but also thepleadings of the party who had brought the action under Order XXXVIIof the CPC. It would therefore, always be open to the defendant to drawthe attention of the court either to facts mentioned in the plaint itself oreven to facts of which Judicial notice can be taken, as sufficient for thegrant of leave to defend. In such a case, there need be no affidavit atall. In fact, in such a situation, court may grant leave to defend even ifno application was filed. Obviously, it all depends on a given set ofcircumstances; but it can never be taken to mean that just any disclosureof facts; with no probative value or sanctity at all, would meet therequirement of Order XXXVII Rule 3(5) of the Code of Civil Procedure.

15. Some efforts have also been made to suggest that the appellantis seriously handicapped. On a query put by this Court, counsel statesthat the appellant is both mentally and physically handicapped. Consequently,the probity of the statements of fact mentioned in the leave to defendapplication which are not supported by affidavit is further undermined bythe appellant’s own case that he is mentally handicapped since the year2007. I also notice that even in the application for leave to defend, it had

been stated that the defendant has been physically and mentally handicappedsince the year 2007. It is, therefore, not known whether the appellanteven has the requisite mental capacity to enter his defence himself or toinstitute this appeal. Also, the application for leave to defend has not beensigned by the appellant/defendant; nor has he bothered to append anaffidavit to the said application before the trial court. Furthermore, evenwith the application for leave to defend, incomplete as it was, the appellantdid not bother to file any statement of accounts to establish his stand thatnothing is payable to the plaintiff by him, even though he had admittedlysigned the minutes dated 22nd March 2004 showing Rs. 18,78,000/- aspayable by him to the respondent.

16. Under the circumstances, it is obvious that the appellant hasraised no substantial defence in the matter and no triable issue has emerged,it therefore, follows that the decision of the court below in placing noreliance on the allegations of fact with regard to jurisdiction of the courtcannot be faulted with.

17. I might notice in this behalf also that in CM No.13316/2012moved for condonation of delay of 200 days in refiling the appeal, it isstated that the appellant met with an accident in the year 2007 and, “sincethen he is mentally and physically incapable to look after the matter ....”,whereas in CM No.13314/2006, seeking condonation of delay of 622days in filing the appeal, it is stated that he met with an accident on 1stFebruary, 2006. I also notice that the appellant has annexed a medicalcertificate dated 5th November, 2011 issued by one Dr. Narayan Karan,who proclaims on his letterhead to have degrees of, “MBBS (Cal)W.B.H.S..”. It is also stated that he is a, “general physician, Suri SadarHospital”. As far as I am able to decipher, whilst MBBS is a knownmedical degree, W.B.H.S. is probably with reference to West BengalHealth Scheme and it cannot be said to be a separate medical degreealthough it has been placed under the name of Dr. Narayan Karan on hisletterhead to give the impression as if it is a separate qualification.

18. The aforesaid medical certificate states that the appellant metwith a car accident on 1st February, 2006 which caused, “serious typeof head injury”, and that he was, “admitted in National Neuro ScienceCentre, Calcutta, Peerless Hospital Campus, and got released after having

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treatment on 03.02.2006”, i.e., within two days from the date of theaccident. I might note that it seems rather unusual for a qualified medicaldoctor, which Dr. Narayan Karan has claimed to be, to describe theinjuries allegedly received by any person, in this case the appellant, merelyas, “serious type of head injury”, without any further assessment onmedical terms as to the type of trauma to the head. Furthermore, nothingis stated as to the type of treatment, which was given to the appellantat the National Neuro Science Centre, Calcutta, during the two dayswhen he was kept there as an inmate. Apart from that, said certificateobserves conditions such as, “unconscious recurrently with intenseheadache, vertigo”, for which the learned doctor appears to have advisedthe appellant, “not to move anywhere alone so as to compromise withany situation.” It is also stated, inter alia, that the appellant is a patientof, “chronic obstructive sleep apnoea syndrome with snoring”, and that“this may cause his life fatal at any place and in any place in everymoment.” The certificate also states, “he was treated from outside andfrom specific higher centres. He was under my supervision from thevery beginning and was treated empirically.”

19. Furthermore, there is no indication whatsoever of the course oftreatment given to the appellant either by Dr. Narayan Karan or by anyother institution which may have treated him for such severe disabilityas is being claimed. Ex-facie, such a certificate does not inspire confidenceand appears to have been procured merely to serve the purpose of theappellant. I do not, therefore, place much reliance on the aforesaidcertificate.

20. Under the circumstances, I conclude that no reasonable groundhas been raised for condoning the delay of 822 days. Consequently, theappeal deserves to be dismissed as barred by limitation.

21. No other ground is raised.

22. It is obvious that the appellant who appears to reside in Calcutta,has managed to avoid execution of the decree for nearly three years. Isee no reason to interfere.

23. The application s for condonation of delay in filing and refilingthe appeal are dismissed. The appeal is also dismissed on merits.

CM Nos.13313(Stay)

24. Since the appeal has been dismissed, this application does notsurvive and the same is dismissed as such.

ILR (2012) 6 DELHI 368CS (OS)

HINDUSTAN VEGETABLE OIL ….PLAINTIFFCORPORATION LTD.

VERSUS

GANESH SCIENTIFIC RESEARCH ….DEFENDANTFOUNDATION

(V.K. JAIN, J.)

CS (OS) NO. : 985/2007 DATE OF DECISION: 13.09.2012

Code of Civil Procedure, 1908—Order 39 Rule 10—Transfer of Property Act, 1882—Section 53A—PlaintiffCompany became owner of suit property videnotification issued by Government in the year 1984,which was acquired by Government in the year 1972—Defendant, a Public trust created by plaintiff undername and style of M/s Ganesh Scientific ResearchFoundation was allowed by plaintiff to run its office inpart of suit premises—However, no lease deed wasexecuted in favour of defendant T rust—Defendantfailed to vacate portion in its possession despite itwas asked to do by plaintiff and accordingly plaintiffhad put its lock on there rooms and two big halls, inpremises—Plaintiffs, then filed suit seeking possessionof premises from defendant and also pressed fordamaged—Plaintiff moved an application U/o 39 Rule

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10 seeking direction for defendant to deposit chargesfor use and occupation of property and urged,defendant had no right to continue in possession ofportion occupied by it, without consent of plaintiffcomp any—defendant T rust defended suit and claimedthat it was lawful tenant under plaintiff and relief uponvarious minutes of meetings of Board of T rusties ofplaintiff comp any as well as defendant T rust—It alsorelied upon S-53A of Act. Held: Section 53A of Transferof Properties Act comes into play when there is acontract between the parties for transfer of any portionof suit property on leasehold or any other basis.There absolutely was no contract between the plaintiffand the defendant for transfer of any portion of suitproperty either on leasehold or any other basis.

The learned counsel for defendant relies upon Section 53Aof the Transfer of Properties Act, which, to the extent it isrelevant, provides that where any person contracts to transfer,for consideration, any immoveable property by writing signedby him or on his behalf, from which the terms necessary toconstitute the transfer can be ascertained with reasonablecertainty, and the transferee has, in part performance of thecontract, taken possession of the property or any partthereof, or the transferee, being already in possession,continues in possession in part performance of the contract,has done some act in furtherance of the contract, and hasperformed or is willing to perform his part of the contract,then, notwithstanding that the contract, though required tobe registered, has not been registered, or, where there isan instrument of transfer, that the transfer has not beencompleted in the manner prescribed therefor by the law forthe time being in force, the transferor or any person claimingunder him shall be debarred from enforcing against thetransferee and persons claiming under him any right inrespect of the property of which the transferee has taken orcontinued in possession, other than a right expressly provided

369 370 Hindustan Vegetable Oil Corporation Ltd. v. Ganesh Scientific Research Foundation (V.K. Jain, J.)

by the terms of the contract: (Para 6)

Important Issue Involved: Section 53A of Transfer ofProperties Act comes into play when there is a contractbetween the parties for transfer any portion of suit propertyon leasehold or any other basis.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFF : Ms. Sonia Arora. Advocates

FOR THE DEFENDANT : Mr. Karuna Nundy, Adv.

RESULT: Application allowed.

V.K. JAIN, J. (ORAL)

IA No.6352/2007 (under Order 39 Rule 10 CPC)

1. This is a suit for possession of the part of the property bearingnumber 64-65, Satguru Ram Singh Marg, Kirti Nagar, New Delhi. Thisproperty belonged to M/s Ganesh Flour Mills Company Limited (hereinafterreferred to as the company), which stands acquired by the governmentin the year 1972. The assets of the said company were transferred to theplaintiff company vide notification dated 30.3.1984. The company hadcreated a public charitable trust under the name and style of M/s GaneshScientific Research Foundation in the year 1978. The said centre wasmeant for carrying out research and development with regard to theactivities of the company and was duly registered under the Indian TrustAct, 1882. The defendant trust was allowed, by the company, to run itsoffice in a part of the premises bearing number 64-65, Satguru RamSingh Marg, Kirti Nagar, New Delhi. In its meeting held on 7.2.1979, theBoard of Directors of the company resolved to build a proper buildingand to allow the defendant trust to use the same. However, no leasedeed, license deed or documents of title was executed in favour of thedefendant trust. The case of the plaintiff is that the defendant has notvacated the portion occupied by it in the aforesaid premises despitehaving been asked to do so. The plaintiff put its lock on three rooms and

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two big halls which the defendant trust continues to occupy in theaforesaid building. Now, the plaintiff, in the present has suit, soughtpossession of the portion as shown in red colour in the site plan annexedto the plaint besides recovery of Rs.36 lac as damages for the periodfrom 1.3.2004 to 31.3.2007. IA No.6352/2007 has been filed by theplaintiff.

2. The contention of the learned counsel for the defendant is thatthe status of the defendant in the suit premises is that of a tenant. In thisregard, she has placed reliance on the minutes of the meeting of Boardof Directors of plaintiff company held on 7.2.1979. This document hasbeen referred to in the plaint itself and the resolution passed in the saidmeeting reads as under:

“Lease of land to Ganesh Scientific Research Foundation

In view of the policy adopted in the past regarding the leasingof property and taking into account the importance of GaneshScientific Research Foundation research activity, it was decidedthat Ganesh Flour Mills will build an appropriate building forGanesh Scientific Reserach on its land at Nazafgarh Road andpermit Ganesh Scientific Research Foundation to use it. Theproperty will be owned by GFM and GSRF will be permittedusers. Appropriate letters clearly stating position may be exchangedafter obtaining competent legal advice.”

This document is not a lease deed and in fact no decision has beentaken vide the abovereferred resolution even to grant lease to the defendanttrust. The use of the expression “...Ganesh Flour Mills will build anappropriate building for Ganesh Scientific Research on its land atNazafgarh and permit Ganesh Scientific Research Foundation to use it”coupled with the fact that no charges are sought to be recovered fromthe trust clearly indicates that only a permission amounting to license wassought to be given to the defendant trust, to use the building, which theBoard of Management of Ganesh Flour Mills had decided to construct.Therefore, this resolution does not give any legal right to the defendantto continue to occupy the suit premises without consent of the plaintiff.

(3) The learned counsel for the defendant also relies upon the

minutes of the meeting of the Board of Trustees of the defendant heldon 9.7.1982. The following extracts from the minutes of the meeting hasbeen relied upon by the learned counsel for the defendant:

“...Shri Shetty was associated with GSRF from its very inceptionand he was instrumental in getting the building constructed forthe GSRF in a record time. Because of his association withGFM/AOW, the trust is likely to have full support from theseinstitutions as in the past.

xxxx

The Board was informed that GSRF has a total of 1.17 acres(5662.8 sq. Yd) land out of which an area of approx. 5000 sqft. where earlier pilot plant had had been working is lying vacantas the pilot plant is not functioning and later on the same wasoccupied by HVOC for the time being after shifting its corporateoffice from Nehru Place. The Board was informed that after theclosure of HVOC’s office at Nehru Place, the corporate officewas shifted to GSRF premises. HVOC instead of paying any rentto GSRF, had agreed for the payment of electricity charges. Allthe electricity bills are being received in the name of GSRF. Itwas requested to the Chairperson that the payment of electricitycharges may continue to be paid by HVOC till they occupy thepremises of GSRF. Now that HVOC’s staff has taken VRS/ VSSand this area where pilot plant has been lying vacant, this are canbe given on rent. The fund generated out of the rented space willbe utilized towards up-to-date of GSRF.

xxxxx

It was opined ultimately that the present arrangement shouldcontinue without any further change. Chairman put forth that incase there is any proposal for disposal of the land by HVOC inwhich GSRF is situated, alternative accommodation and otherfacilities of GSRF shall be worked out and it will be consideredas HVOC’s obligation to provide for the alternate arrangement.

4. The learned counsel for the defendant also pointed out that Mr.Shetty, Chairperson-cum-Executive Officer of the plaintiff company was

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also the Chairman of the Board of Trustees of defendant trust and shesubmits that the decision taken in the meeting held on 9.7.1982 binds theplaintiff company.

5. In my view, the contentions are wholly misconceived. No decisiontaken by the Board of Trustees of the defendant trust would bind theplaintiff company merely because the Chairman-cum-CEO of the plaintiffcompany also happened to be the Chairman of the Board of Trustees ofthe defendant trust. The plaintiff being a separate legal entity, has to takeits decision and the resolution passed by the defendant trust does not inany manner binds the plaintiff company. In any case, even this resolutiondoes not indicate any lease deed already having been granted to thedefendant trust in respect of the portion of the suit premises which areoccupied by it. An assurance given by the Chairperson of plaintiff companyto provide an alternate accommodation to the defendant, does not constitutea lawful agreement between the plaintiff and the defendant trust whichare two separate legal entities. Therefore, prima facie, the defendant hasno legal right to continue in possession of the portion occupied by it inthe suit property, without consent of plaintiff company.

6. The learned counsel for defendant relies upon Section 53A of theTransfer of Properties Act, which, to the extent it is relevant, providesthat where any person contracts to transfer, for consideration, anyimmoveable property by writing signed by him or on his behalf, fromwhich the terms necessary to constitute the transfer can be ascertainedwith reasonable certainty, and the transferee has, in part performance ofthe contract, taken possession of the property or any part thereof, or thetransferee, being already in possession, continues in possession in partperformance of the contract, has done some act in furtherance of thecontract, and has performed or is willing to perform his part of thecontract, then, notwithstanding that the contract, though required to beregistered, has not been registered, or, where there is an instrument oftransfer, that the transfer has not been completed in the manner prescribedtherefor by the law for the time being in force, the transferor or anyperson claiming under him shall be debarred from enforcing against thetransferee and persons claiming under him any right in respect of theproperty of which the transferee has taken or continued in possession,other than a right expressly provided by the terms of the contract:

7. Reliance upon the aforesaid provision in my view is whollymisplaced. There is absolutely no contract between the plaintiff and thedefendant for transfer of any portion of the suit property either onleasehold or any other basis. In any case, no such contract between theparties has been pleaded in the written statement.

8. For the reasons stated hereinabove, prima facie, the defendant isliable to pay damages for use and occupation of the portion occupied byit in the suit property, to the plaintiff. The present suit was filed on25.05.2007. In IA No.6352/2007, the plaintiff has demanded charges foruse and occupation @ Rs.1 lac per month. This demand was in respectof the whole of the portion occupied by defendant in the suit property.The learned counsel for the plaintiff states that the total area occupied bythe defendant in the suit property comes to about 8300 sq. ft. Out ofthis, the portion measuring 5800 sq ft. Has been locked by the plaintiffas well as by the defendant and the plant and machinery of the defendantis lying therein. Considering the fact that neither the plaintiff nor thedefendant is able to use this portion, I refrain from passing order at thisstage with respect to the damages for use and occupation of the aforesaidportions. The remaining portion, which admittedly is in possession of thedefendant comes to 2500 sq. ft. On proportionate basis, the plaintiff isentitled to recover damages @ Rs.30,120/- per month for this portion.The defendant is, therefore, directed to deposit charges for use andoccupation @ Rs.30,120/- with effect from 1.8.2007 to 31.8.2012 within8 weeks from today. The defendant would continue to deposit damagesfor use and occupation at the same rate during pendency of this suit by10th of each succeeding calendar month. The aforesaid amount, as andwhen deposited by the defendant, would be released to the plaintiff onits furnishing an undertaking to deposit the same with interest @ 12%per annum, if so directed by the Court. This interim arrangement iswithout prejudice to the rights and contentions of respective parties inthis suit.

The application stands disposed of.

IA No.8972/2011 (under Order XIII Rule 1 CPC)

Heard. The additional documents mentioned in the application aretaken on record, subject to payment of Rs.10,000/- as costs.

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The application stands disposed of.

IA No.13286/2010 (under Section 151 CPC)

The learned counsel for the defendant wants an issue to be framedwith respect to applicability of Section 53A of Transfer of PropertiesAct.

No such plea has been taken by the defendant in the writtenstatement. Hence, no such issue arises from the pleading of the parties.

No other additional issue arises from the pleadings of the parties.The application is devoid of any merit and is hereby dismissed.

IA No.18528/2011(under Order XXVI Rule 4 CPC)

The prayer made in this application is for appointment of a LocalCommissioner to determine the violation of the order dated 25.5.2007and non-compliance of the order dated 21.12.2010. Yet another prayermade in this application is to direct the locks to the premises be brokenand status quo ante as on 25.5.2007 to be restored.

While deciding IA No.6352/2007, I have taken a view that primafacie defendant has no right to continue to occupy the suit premises. Thelearned counsel for the defendant states that the grievance of the defendantis that its vehicles are not be allowed to enter the suit premises.

An interim order has already been passed by this Court on 29.11.2011making the following arrangement:

a. That the plaintiff will allow one car belonging to the officialof the defendant’s trust to be parked in the HVOCCompound.

b. The plaintiff will also allow the vehicles to be taken insidethe compound for loading and off loading the goods.

c. The plaintiff will see that during 24 hours, his securityguard will remain present to open the gate for the purposeof entry and exit as agreed in para 6 of the affidavit.

d. The goods of the defendant’s trust are also to be allowedto enter and the plaintiff shall see that no such trouble iscaused to the defendant’s trust.

Since not only one car of the defendant trust has been allowed to

be parked, even the vehicles carrying goods have been allowed to enterinto the suit premises for the purpose of loading and off-loading thegoods, and the security guards have also been directed to remain presentat the gate to open the same for the purpose of entry and exit, no furtherorder is required to be passed on this application. The interim order dated29.11.2011 shall continue during pendency of this suit. The applicationstands disposed of.

IA No.13195/2009 (under Section 151 CPC)

The prayer made in this application is that the parties may bedirected to open the lock of the pilot plant and the defendant may bepermitted to execute the project in the pilot plant as mentioned in para10 of the application.

The defendant has been awarded a project by Department of BioTechnology and claims to have a sum of Rs.8.73 lac to the defendantto purchase the extruder for this purpose. That extruder is to be installedin the shed where the pilot plant is located.

The learned counsel for the plaintiff wants some time to takeinstructions as to whether the plaintiff is willing to allow the defendantto use the aforesaid portion on payment/ damages for use and occupationof the portion by the defendant. The learned counsel for defendant alsowants to take instructions as to whether the defendant is ready andwilling to pay the charges on account of use and occupation as conditionprecedent for use of the aforesaid portion occupied by pilot plant.

The defendant also wants permission to remove its machinery fromthe pilot plant installed in the portion occupied by it. The plaintiff isdirected not to obstruct the defendant in removing the aforesaid machineryfrom the portion occupied by it.

Renotify on 18.09.2012.

CS(OS) 985/2007

Affidavits by way of evidence be filed by the parties within fourweeks.

The parties are directed to appear before the Joint Registrar on8.11.2012 for fixing dates of recording of evidence.

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jurisdiction where mortgaged property is situated butalso in DRT having jurisdiction where branch of Bank/Financial Institution which has distributed loan issituated as well as in all DRT s which would havejurisdiction in terms of Section 19(1) of DRT Act readwith Rule 6 of DRT Rules, Full bench was constituted—Plea taken, DRT Delhi has jurisdiction by virtue ofprovisions of Section 19(1) (c) of DRT Act read withRule 6(d) of DRT Rules to entertain and decide suchappeal—Per contra, counsel for bank supportingimpugned order, contended that it is rather in interestof Bank also, if jurisdiction of DRT Delhi is permittedto be invoked and on same parity, bank should alsohave freedom to approach Chief MetropolitanMagistrate at Delhi for assistance for taking possessionof mortgaged property, even if situated outside Delhi—jurisdiction of DRT before which appeal under Section17 (1) of SARFAESI Act can be filed shall be determinedas per DRT Act and Rules made thereunder—Referringto Section 19(1) of DRT Act it was contended thatjurisdiction thereunder is of DRT where defendants orany of them resides or carries on business or wherecause of action wholly or in part arises—Event whichtriggers appeal under Section 11 (1), is action ofAuthorized Officer of Bank—DRT within whosejurisdiction said Authorized Officer is situated, wouldhave jurisdiction—Since in present case, AuthorizedOfficer of Respondent Bank has issued notice toPetitioners from within jurisdiction of Delhi, DRT havingjurisdiction over Delhi would Definitely havejurisdiction to entertain appeal—Rule 6 has beenamended to provide for jurisdiction not only of DRTWhere applicant is functioning as a Bank or FinancialInstitution, but also of DRT s within whose jurisdictiondefendants or any of them resides or carry on businessor where cause of action wholly or in part arises—Amendment of Rule 6 is af ter SARFAESI Act came into

377 378Amish Jain & Anr. v. ICICI Bank Ltd. (Rajiv Sahai Endlaw, J.)

ILR (2012) 6 DELHI 377W.P

AMISH JAIN & ANR. ….PETITIONERS

VERSUS

ICICI BANK LTD. ….RESPONDENTS

(A.K. SIKRI, ACJ., KAILASH GAMBHIR &RAJIV SAHAI ENDLA W, J.)

W.P. (C) NO. : 3957/2012 DATE OF DECISION: 13.9.2012

The Securitization and Reconstruction of FinancialAssets and Enforcement of Security Interest Act, 2002—Section 2(zc), (ze), (zf), 2(1), 13(2) (4), 14, 17 and 17A—The Recoveries of Debts Due to Banks and FinancialInstitutions Act, 1993 –Section 2(9), 3(2), 19(1) and 25—The Debt Recoveries T ribunal (Procedure) Rules, 1993—Rule 6—Code of Civil Procedure, 1908—Section 16, 20and Order 34—The Security Interest (Enforcement)Rules, 2002—Rule 4, 5, 6 and 8 –The Hindu MarriageAct, 1955—Section 21—Petition filed impugning orderof DRT—III, Delhi holding that it has no jurisdiction toentertain appeal preferred by petitioners under Section17 of SARFAESI Act for reason of petitioners beingresident of Meerut, loan in their favour having beensanctioned by branch of respondent bank at Meerut,loan being repayable at Meerut and mortgaged propertybeing at Meerut and even if action under Section13(4) or Section 14 of SARF AESI Act is to be t aken bybank, bank will have to approach concerned DistrictMagistrate at Meerut for appointment of receiver, fortaking possession of property—A doubt having arisenas to correctness of judgment of DB of this Court inIndira Devi insofar as holding that appeal under Section17 of SARFAESI Act can be filed not only in DRT having

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force and legislature should be deemed to haveamended Rule to provide for jurisdiction of DRT quaappeal under section 17 (1) of SARF AESI Act also—Held—Division Bench fell in error in assuming Debt/money recovery proceeding to be initiated by Bankunder DRT Act as equivalent to legal proceedingsubject whereof is a mortgaged property, withinmeaning of section 16 of CPC—Proceedings referredto in Section 19(1) of DRT Act are merely proceedingfor recovery of debt and not for enforcement ofmortgage—Even prior to coming into force of DRT,Act, Bank, even if a mortgage, was not mandatorily,required to enforce mortgage and which under Section16 of CPC could be done only within territorialjurisdiction of Court where mortgaged property wassituated and Bank was free to institute a suit, only forrecovery of money and territorial jurisdiction whereofwas governed by Section 20 of CPC, containing sameprinciples as in Section 19(1) of DRT Act—Recoveryproceeding under DRT Act are equivalent to a suit forrecovery of money before a Civil Court and cannot besaid to be for enforcement of mortgage—Cause ofaction of appeal under Section 17(1) of SARF AESI Actis taking over of possession/management of securedasset and which cause of action can be said to haveaccrued only within jurisdiction of DRT where securedasset is so situated and possession thereof, is takenover—It is said DRT only which can be said to behaving “Jurisdiction in the matter” within meaning ofSection 17(1) of Act—Exercise of jurisdiction underSection 17(1) of SARF AESI Act by DRT s of a place otherthan where secured asset is situated is likely to leadto complexities and difficulties which are bestavoided—There is no provision in DRT Act providingfor territorial jurisdiction of appeal under Section 17(1)of SARFAESI Act and question of application thereofunder Section 17(7) does not arise—Limits of territorial

jurisdiction described under Section 19(1) of DRT Actcannot be made applicable to Section 17(1) of SARF AESIAct—Section 19(1) of DRT Act is not omnibus provisionqua territorial jurisdiction—It is concerned only withproviding for territorial jurisdiction for applicationsfor recovery of debts by Bank/Financial Institutions—Same can have no application to appeals under Section17(1) of SARFAESI Act which are to be preferred, notby Banks/Financial Institutions, but against Banks/Financial Institutions—Use, in section 17(7) of SARF AESIAct, of words “as far as may be” and “same asotherwise provided in Act” also exclude applicabilityeven of principles contained in Section 19(1) of DRTAct to determine territorial jurisdiction of appeal underSection 17(7) of SARF AESI Act—Merely becausedefendant if were to sue, can sue at place of residenceof plaintiff, does not entitle plaintiff to sue at place ofhis residence if that place would otherwise not haveterritorial jurisdiction—Application under Section 17(1)of SARFAESI Act can be filed only before DRT withinwhose jurisdiction property/secured asset againstwhich action is taken in situated and in no otherDRT—No error found in order of DRT. Delhi holding itto have no jurisdiction to entertain appeal/applicationunder Section 17(1) of SARF AESI Act, mortgage propertyagainst which action is taken being situated at Meerut.

Important Issue Involved: An application under section17(1) of the SARFAESI Act can be filed only before theDRT within whose jurisdiction the property/secured assetagainst which action is taken is situated and in no otherDRT.

[Ar Bh]

APPEARANCES:

FOR THE PETITIONER : Mr. Rajiv Bansal, Amicus Curiae withMr. Saurav Suman Sinha & Mr.

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Rahul Bhandari, Advs and thepetitioner No. 1 in person.

FOR THE RESPONDENT : Mr. Punit K. Bhalla & Ms. ChetnaBhalla, Advs.

CASES REFERRED TO:

1. Kanaiyalal Lalchand Sachdev vs. State of Maharashtra(2011) 2 SCC 782.

2. United Bank of India vs. Satyawati Tandon (2010) 8SCC 110.

3. Authorized Officer, Indian Overseas Bank vs. Ashok SawMill (2009) 8 SCC 366.

4. Harman Electronics Pvt. Ltd. vs. National Panasonic IndiaPvt. Ltd. (2009) 1 SCC 720.

5. Elements Coke Pvt. Ltd. vs. UCO Bank AIR 2009 Calcutta252.

6. Transcore vs. Union of India (2008) 1 SCC 125.

7. Bank of Baroda vs. Teg’s Musrado Ltd. (2006) 129CompCas 275 (NULL).

8. Harshad Chiman Lal Modi vs. DLF Universal (2005) 7SCC 791.

9. Mardia Chemicals Ltd. vs. Union of India (2004) 4 SCC311.

10. Hindustan Laminators Pvt. Ltd. vs. Central Bank of IndiaAIR 1998 Cal 300.

11. State Bank of India vs. Gujarmal Modi Hospital &Research Centre for Medical Sciences 61 (1996) DLT614.

12. State Bank of India vs. Samneel Engineering Co. MANU/DE/0462/1995.

13. Ujagar Prints vs. Union of India (1989) 3 SCC 488.

14. Dr. Pratap Singh vs. Director of Enforcement (1985) 3SCC 72.

15. State of Rajasthan vs. M/s Swaika Properties AIR 1985SC 1289.

16. Guda Vijayalakshmi vs. Guda Ramachandra SekharaSastry AIR 1981 SC 1143.

17. Upendra Kumar vs. Harpriya Kumar MANU/DE/0136/1978.

RESULT: Judgment of Division Bench in Indira Devi set aside.

RAJIV SAHAI ENDLAW, J.

1. A doubt having arisen as to the correctness of the judgment ofthe Division Bench of this Court in Indira Devi Vs. Debt RecoveryAppellate Tribunal 171 (2010) DLT 439 (DB), insofar as holding that anappeal under Section 17 of The Securitization and Reconstruction ofFinancial Assets and Enforcement of Security Interest Act, 2002(SARFAESI Act) can be filed not only in the Debt Recovery Tribunal(DRT) having jurisdiction where the mortgaged property is situated butalso in DRT having jurisdiction where the branch of the Bank / FinancialInstitution which has disbursed the loan is situated as well as in all DRTswhich would have jurisdiction in terms of Section 19(1) of The Recoveriesof Debts Due to Banks and Financial Institutions Act, 1993 (DRT Act)read with Rule 6 of the Debts Recovery Tribunal (Procedure) Rules,1993 (DRT Rules), this Full Bench was constituted.

2. This petition was filed impugning the order dated 7th June, 2012of DRT-III, Delhi holding that it has no jurisdiction to entertain the appealpreferred by the petitioners under Section 17 of the SARFAESI Act forthe reason of, i) the petitioners being residents of Meerut; ii) the loan intheir favour having been sanctioned by the branch at Meerut of therespondent ICICI Bank Limited and being re-payable at Meerut; and, iii)the mortgaged property being also situated at Meerut. It was further heldthat merely because the notice under Section 13(2) of the SARFAESIAct had been issued by the Jhandewalan, New Delhi Branch of therespondent Bank, would not vest the DRT Delhi with a jurisdiction toentertain the appeal at Delhi. Yet another reason given is, that even ifaction under Section 13(4) or Section 14 of the SARFAESI Act is to betaken by the Bank, the Bank will have to approach the concerned District

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Magistrate at Meerut for appointment of Receiver, for taking possessionof the property.

3. It is the contention of the petitioners in the writ petition, thatDRT, Delhi has jurisdiction by virtue of the provisions of Section 19(1)(c)of the DRT Act read with Rule 6(d) of the DRT Rules, to entertain anddecide such an appeal. Reliance is placed on State of Rajasthan Vs. M/s Swaika Properties AIR 1985 SC 1289 and Indira Devi Vs. Debt RecoveryAppellate Tribunal 171 (2010) DLT 439 (DB). It is further pleaded, thatthe Bank cannot sell the mortgaged property of the petitioners by violatingthe procedure laid down in SARFAESI Act and the Rules framed thereunder;that the notices under Sections 13(2) and 13(4) of the SARFAESI Actare illegal and the Bank cannot take possession of or sell the property inpursuance thereto. It is yet further pleaded that since the challenge in theappeal preferred by the petitioners before DRT, Delhi is to the validity ofthe notices and which notices have been issued by the branch of therespondent Bank at Delhi within the jurisdiction of DRT, Delhi, DRT,Delhi would have jurisdiction. The petition contains numerous avermentspointing out the defects in notices under Section 13(2) and 13(4) of theSARFAESI Act, but which it is not necessary to discuss.

4. Finding the question raised to be one purely of law, notwithstandingthe availability of the remedy of appeal to Debt Recovery Appellate Tribunal(DRAT), notice of the petition was issued to the respondent Bank. Thecounsel for the Bank appeared on 19th July, 2012 and though supportingthe reasoning in the impugned order, contended that it is rather in theinterest of the Bank also if the jurisdiction of DRT Delhi is permitted tobe invoked; it was submitted that on the same parity, the Bank shouldalso have the freedom to approach the Chief Metropolitan Magistrate(CMM) at Delhi for assistance for taking possession of the mortgagedproperty, even if situated outside Delhi. Since the petitioner No.1 wasappearing in person, Mr. Rajiv Bansal, Advocate was appointed as AmicusCuriae.

5. We have heard the petitioner No.1 appearing in person, thelearned Amicus Curiae and the counsel for the respondent Bank.

6. The Amicus Curiae has supported the petitioners and hascontended that the appeal can be filed before the DRT having jurisdiction

wherever the cause of action has accrued. It is contended that theapplication under Section 17(1) of the SARFAESI Act is against themeasures under Section 13(4) of the SARFAESI Act taken by the Bank/ Financial Institution as a Secured Creditor or its ‘Authorized Officer’and thus can be filed wherever the ‘Authorized Officer’ of the SecuredCreditor i.e. the Bank or Financial Institution is situated. Attention is alsoinvited to Section 17(7) of the SARFAESI Act providing for disposal ofsuch appeal in accordance with the provisions of the DRT Act and theRules made thereunder. On the basis thereof, it is argued that thejurisdiction of the DRT before which appeal under Section 17(1) of theSARFAESI Act can be filed shall be determined as per the DRT Act andthe Rules made thereunder. Reference thereafter is made to Section 19(1)of the DRT Act to contend that the jurisdiction thereunder is of the DRTwhere the defendants or any of them resides or carries on business orwhere the cause of action wholly or in part arises. It is contended thatsince the event which triggers the appeal under Section 17(1), is theaction of the Authorized Officer of the Bank / Financial Institution, theDRT within whose jurisdiction the said Authorized Officer is situatedwould have jurisdiction. It is thus argued that since in the present case,the Authorized Officer of the respondent Bank has issued notice to thepetitioners from within the jurisdiction of Delhi, the DRT having jurisdictionover Delhi would definitely have jurisdiction to entertain the appeal.Attention is next invited to Rule 6 supra and it is highlighted that priorto amendment thereof on 21.01.2003, the same provided for the jurisdictiononly of the DRT where the applicant was functioning as a Bank orFinancial Institution but after amendment, the same has been amended toprovide for the jurisdiction not only of the DRT where the applicant isfunctioning as a Bank or Financial Institution but also of the DRTs withinwhose jurisdiction the defendants or any of them resides or carry onbusiness or where the cause of action wholly or in part arises. It iscontended that the said amendment dated 21.01.2003 of Rule 6 is afterthe SARFAESI Act came into force on 17.12.2002 and the Legislatureshould be deemed to have amended the Rule to provide for the jurisdictionof the DRT qua appeal under Section 17(1) of the SARFAESI Act also.Learned Amicus Curiae, besides Indira Devi (supra), has also referredto i) Transcore Vs. Union of India (2008) 1 SCC 125, ii) MardiaChemicals Ltd. Vs. Union of India (2004) 4 SCC 311, iii) State of

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Rajasthan Vs. M/s Swaika Properties AIR 1985 SC 1289, iv) HarmanElectronics Pvt. Ltd. Vs. National Panasonic India Pvt. Ltd. (2009)1 SCC 720 and Elements Coke Pvt. Ltd. Vs. UCO Bank AIR 2009Calcutta 252. Attention is also invited to the definition of “defendant” inPramanatha Aiyar’s, The Major Law Lexicon, 4th Edition 2010.

7. The counsel for the respondent Bank, though contending asaforesaid that it would be in the interest of the Bank also if they arepermitted to approach, the District Magistrate / CMM, under Section 14of the SARFAESI Act of any of the aforesaid jurisdiction, has on thequestion of law argued that if the aforesaid argument were to be accepted,then the Bank / Financial Institution would be entitled to create jurisdictionof any DRT by sending the notice under the SARFAESI Act therefrom.

8. It is important to highlight the context in which the question hadarisen before the Division Bench in Indira Devi . The appeal under Section17(1) of the SARFAESI Act, in that case, had been filed before the DRTwithin whose jurisdiction the secured asset was situated. There it wasthe contention of the creditor Bank that since under Rule 6 supra (as itstood prior to the amendment) the Bank could file recovery proceedingsonly in the DRT within whose jurisdiction the branch of the Bank /Financial Institution which had disbursed the loan was functioning andin no other DRT, similarly the appeal under Section 17(1) of theSARFAESI Act could also be filed in that DRT only and in no other. Thesaid contention was negated by the Division Bench observing that eventhe Bank under Rule 6 (as it stood after the amendment and withoutnoticing that the argument of the Bank was predicated on the un-amendedRule) could file recovery proceedings in the DRT in which its branch,which had disbursed the loan, was situated or in the DRT where any ofthe defendants was residing or carrying on business or in the DRT inwhich the cause of action has arisen and hence even the appeal underSection 17(1) of the SARFAESI Act can be filed in any of the said DRT.It would thus be seen that before the Division Bench, it was not thecontention of either of the parties that the jurisdiction should be confinedonly to the place where the property was situated, though notice is takenby the Division Bench that under Section 16 of the CPC, legal proceedings,subject matter whereof was a mortgaged property, could be filed only inthe Court within whose territorial jurisdiction the mortgaged property

was situated. It was however held that the DRT Act made a specificdeparture from the provision of Section 16 of CPC inasmuch as the Bankwas not required to file recovery proceedings only with the DRT whichhad territorial jurisdiction over the mortgaged property and could file theproceedings for recovery either where the defendant resides or carries onbusiness or where whole or part of cause of action arose includingwhere the branch which had advanced the loan was situated, althoughthe mortgaged property was situated elsewhere. Having held so, theDivision Bench held that since there was no restriction on the Bank,under Section 19(1) of the DRT Act, to institute recovery proceedingsat any one place, no such restriction could be placed on the borrower/ mortgagor also. Accordingly, option of choosing territorial jurisdiction,as available to the Bank under Section 19(1) of the DRT Act, was heldto be available to the borrower / mortgagor also under Section 17(1) ofthe SARFAESI Act. Relying on Mardia Chemicals Ltd. supra, it wasalso held that in an application under Section 17(1) of the SARFAESIAct, the aggrieved person has a right also to challenge the amount beingclaimed by the Bank / Financial Institution under Section 13 of theSARFAESI Act. The judgment of a Single Judge of the Calcutta HighCourt in Elements Coke Pvt. Ltd. supra laying down that only DRT ofthe place where the mortgaged property is situated would have jurisdictionto decide the appeal under Section 17(1) of the SARFAESI Act wasdissented from by observing that the proceedings under Section 17(1) ofthe SARFAESI Act though titled as ‘Appeal Proceedings’ are ‘OriginalJurisdiction Proceedings’.

9. The reasons for which a doubt was entertained as to thecorrectness of the view taken in Indira Devi , are stated in para 6 of thereferral order dated 26.07.2012 as under:

“6. The right of appeal under Section 17(1) of SARFAESI Actis only against measures under Section 13(4) of the Act and notagainst a notice under Section 13(2) of the Act. A notice underSection 13(2) of the Act cannot thus be the cause of action foran appeal under Section 17(1) of the Act, even if it be defectiveor invalid. The measures under Section 13(4) of the Act are interalia of taking possession of the secured assets of the borrowersand transferring the same by way of lease, assignment or sale,

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for realizing the said secured assets or taking over managementof the business or of appointment of any person to manage thesecured assets etc. The manner of so taking over possession isprovided in Section 14 of the SARFAESI Act which requires thesecured creditor to approach the Chief Metropolitan Magistrateor the District Magistrate within whose jurisdiction any suchsecured assets may be situated. Thus the secured creditor i.e.,the Bank has no choice but to approach the Chief MetropolitanMagistrate or District Magistrate having jurisdiction over the areawhere the secured asset is situated. Once the grievance is againstthe action of so taking over the assets with the assistance of theChief Metropolitan Magistrate or the District Magistrate, it primafacie appears that the jurisdiction to entertain an appeal againstsuch action also will be of the DRT having jurisdiction over thearea where the secured asset is situated and over the area whoseChief Metropolitan Magistrate or District Magistrate has beenapproached for so taking over the secured assets. It may benoticed that the DRT, in such appeal under Section 17(3) of theSARFAESI Act, if finds that the measures taken under Section13(4) are not in accordance with SARFAESI Act and the Rulesmade thereunder, is authorized to declare such measures to beinvalid and to restore the possession of the secured assets to theborrowers. We have wondered whether the DRT not havingjurisdiction over the Chief Metropolitan Magistrate/DistrictMagistrate would be entitled to direct such restoration ofpossession. It is not as if DRT exercises jurisdiction over theentire country. Section 3 of the DRT Act providing forestablishment of DRTs, in sub-Section (2) thereof requires thenotification establishing a DRT to specify the areas within whichthe said DRT shall exercise jurisdiction for entertaining anddeciding an application filed before it. From the same it appearsthat DRT at Delhi is unlikely to have jurisdiction over the areaof Meerut for it to declare any action of Chief MetropolitanMagistrate / District Magistrate of Meerut as invalid if finds infavour of the petitioners or to direct the secured assets to berestored etc. We are further prima facie of the view that theprinciple applicable to a suit for enforcement of mortgage i.e., of

it being maintainable only in the Courts within whose jurisdictionthe mortgaged property is situated, would also apply. Theprovisions of Section 19 of the DRT Act and of Rule 6 of theDRT Rules are intended for applications before the DRT forrecovery of money and which can be filed in the DRT withinwhose jurisdiction any part of the cause of action has accruedand would have no application to an action for enforcement ofsecurity interest under the SARFAESI Act.”

10. We have considered the matter. The reason which prevailedwith the Division Bench in Indira Devi , to hold that an appeal underSection 17(1) of the SARFAESI Act can be filed in any of the DRTswhere the Bank under Section 19(1) of the DRT Act could initiateproceedings, was predicated on the DRT Act making a departure fromSection 16 of the CPC in enabling the Bank to initiate proceedings notnecessarily within the jurisdiction of the DRT where the mortgagedproperty is situated but in any of the DRTs. The Division Bench was alsoguided by the consideration of giving the same opportunity of choosingjurisdiction to the borrower, as available to the Bank.

11. We are however of the opinion that the Division Bench fell inerror in assuming the debt / money recovery proceedings to be initiatedby the Bank under the DRT Act as equivalent to legal proceedings subjectwhereof is a mortgaged property, within the meaning of Section 16 ofthe CPC. The proceedings referred to in Section 19(1) of the DRT Actare merely proceedings for recovery of debt and not for enforcement ofmortgage. Even prior to coming into force of the DRT Act, the Bank,even if a mortgagee, was not mandatorily required to enforce the mortgageand which under Section 16 of the CPC could be done only within theterritorial jurisdiction of the Court where the mortgaged property wassituated and the Bank was free to institute a suit, only for recovery ofmoney and territorial jurisdiction whereof was governed by Section 20of CPC, containing the same principles as in Section 19(1) of the DRTAct. We are therefore unable to accept that any departure qua territorialjurisdiction has been made in the DRT Act, as has been observed by theDivision Bench in Indira Devi .

12. The proceedings in the DRT for recovery of debt, culminate in

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a ‘Certificate of Recovery’ which is equivalent to a Money Decree of aCivil Court. Just like a Money Decree of a Civil Court, can be transferredfor execution to another Court where the assets of the Judgment Debtorfrom which recovery is to be effected are situated, under Section 19(23)of the DRT Act also, where the property from which recoveries are tobe effected, is situated outside the local limits of the jurisdiction of theDRT which has issued the Certificate, the DRT is required to send acopy of the Certificate for execution to the DRT within whose jurisdictionthe property is situated. Section 25 provides for modes of recovery ofthe debts specified in the Certificate, including by attachment and sale ofproperty. The recovery proceedings under the DRT Act are thus equivalentto a suit for recovery of money before a Civil Court and cannot be saidto be for enforcement of mortgage. Thus it cannot be said that the DRTAct has made any departure from Section 16 of the CPC.

13. We may however notice that in State Bank of India Vs.Samneel Engineering Co. MANU/DE/0462/1995 an argument was raisedthat a proceeding under Section 19(1) of the DRT Act for recovery ofdebt did not include a debt which was secured by a mortgage. Thiscontention was negatived by this Court holding a mortgage debt to beincluded in ‘debt’ within the meaning of Section 2(g) of the DRT Act.It was further held that the modes of recovery prescribed in the DRTAct are inclusive of the rights of the Bank as a mortgagee and the rightsunder Order 34, CPC of the mortgagor, have been taken away by theDRT Act. This Court explained that the DRT Act had made the recoveryof debt as distinct from enforcement of mortgage, a cause of action andfor this reason the situs of mortgaged property, relevant under Section16 of the CPC, had become irrelevant. We respectfully concur. Thoughthis judgment of a Single Judge of this Court was cited before theDivision Bench in Indira Devi but was held to be not applicable. TheDivision Bench did not notice that this Court in Samneel EngineeringCo. has held, the DRT Act to be not in departure from Section 16 ofthe CPC, and the situs of the mortgaged property being irrelevant to theproceedings under Section 19(1) of the DRT Act which are for recoveryof debt. We find the Debt Recovery Appellate Tribunal (DRAT) also inBank of Baroda Vs. Teg’s Musrado Ltd. (2006) 129 Comp Cas 275(NULL) to have held that the relief sought under Section 19(1) of the Act

is for a money decree and even if consequent reliefs are also sought, thatcannot be a ground to construe the proceeding as for enforcement ofmortgage. We further find Samneel Engineering Co. to have beenfollowed in State Bank of India Vs. Gujarmal Modi Hospital &Research Centre for Medical Sciences 61 (1996) DLT 614 as well asin Hindustan Laminators Pvt. Ltd. Vs. Central Bank of India AIR1998 Cal 300.

14. For enforcement of the mortgage, the SARFAESI Act wasenacted. While the Preamble of the DRT Act describes the same as toprovide for establishment of Tribunals for expeditious adjudication andrecovery of debts due to the Banks and Financial Institutions, the Preambleto the SARFAESI Act describes the same as an act inter alia forenforcement of security interest. The Supreme Court in Transcore supra,on analysis of provisions of DRT Act in juxtaposition to SARFAESI Act,held the DRT Act to be providing for adjudication of disputes, as far asdebt due is concerned, whether it be a secured or an unsecured debt.

15. We may mention, that while in the DRT Act, there is nomention of mortgage and even an application under Section 19(1) isrequired to only specify the properties required to be attached and whichmay not necessarily be mortgaged property, Section 2(l) of the SARFAESIAct while defining “financial asset” expressly includes “mortgage” andSections 2(zc), 2(ze) and 2(zf) define the “secured asset”, “secureddebt” and “secured interest” as meaning the property on which securityinterest is created and rights under a mortgage. Section 13 of theSARFAESI Act provides for enforcement of such mortgage without theintervention of the Court or the DRT.

16. We are therefore of the view that the question of territorialjurisdiction for the remedy of appeal provided in Section 17(1) of theSARFAESI Act has to be construed in the said light and not in the lightof the DRT Act making a departure from the principle enshrined inSection 16 of the CPC.

17. Section 17(1) of the SARFAESI Act provides for filing of theappeal / application thereunder not to any DRT but only to the “DRThaving jurisdiction in the matter”. However, such jurisdiction is notspecified. To determine which DRT will have jurisdiction in the matter,

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we have to find as to what is to be the matter for adjudication in aproceeding under Section 17(1) of the SARFAESI Act and what reliefthe DRT is empowered to grant in the said proceeding. The scope of aproceeding under Section 17(1) of the SARFAESI Act is described inSection 17(2) of the SARFAESI Act as of “whether any of the measuresreferred to in Sub-Section (4) of Section 13 of the SARFAESI Act takenby the secured creditor for enforcement of security are in accordancewith the provisions of the SARFAESI Act and the Rules made thereunder”.The measures which the Bank / Financial Institution is empowered totake under Section 13(4) of the SARFAESI Act are of taking overpossession or management as aforesaid of the secured asset. Of course,the action of so taking over possession or management is to be precededby (a) the borrower under a liability under a secured agreement makingany default in repayment of the secured debt or any installment thereof;(b) the borrower’s account in respect of such debt being classified asnon-performing asset; (c) the Bank / Financial Institution requiring theborrower by notice in writing to discharge in full his liabilities withinsixty days and giving details of the amount payable and the secured assetintended to be enforced in the event of non-payment; d) consideration ofrepresentation if any made by the borrower thereagainst andcommunication to the borrower of the reasons for non-acceptance ofsuch representation. Though, it could well be argued that the DRT withinwhose jurisdiction Bank / Financial Institution to whom the borrower isindebted is situated, would also have jurisdiction to adjudicate whetherthe action under Section 13(4) of taking over possession / managementis in accordance with the aforesaid procedure but the explanation toSection 17(1) of the SARFAESI Act clarifies that the communication ofthe reasons to the borrower for not accepting the representation or thelikely action of the Bank/Financial Institution shall not entitle the borrowerto make an application under Section 17(1) of the SARFAESI Act. Thusthe cause of action for the appeal under Section 17(1) of the SARFAESIAct is the taking over of the possession / management of the securedasset and which cause of action can be said to have accrued only withinthe jurisdiction of the DRT where the secured asset is so situated andthe possession thereof is taken over. We are thus of the view that it isthe said DRT only which can be said to be having “jurisdiction in thematter” within the meaning of Section 17(1) of the Act.

18. Further, the relief to be granted by the DRT in an appeal underSection 17(1) of the SARFAESI Act, if successful, is (under Section17(3)) of restoration of possession / management of the secured assetto the borrower and to pass such order as it may consider appropriateand necessary in relation to the recourse taken by the Banks / FinancialInstitution under Sub-Section (4) of Section 13 of the SARFAESI Act.This relief also, we find, the DRT within whose jurisdiction the securedasset to be so restored to the borrower is situated, to be the mostcompetent to grant and implement. The orders which the DRT underSection 17(3) of the SARFAESI Act may be required to pass may alsoentail exercising jurisdiction over the CMM / DM which is approachedby the Bank / Financial Institution for assistance for taking over possession/ management. Notice in this regard may be taken of Kanaiyalal LalchandSachdev Vs. State of Maharashtra (2011) 2 SCC 782 and of UnitedBank of India Vs. Satyawati Tandon (2010) 8 SCC 110 suggestingthat appeal under Section 17(1) can be filed after the Bank has filedapplication under Section 14, even if possession / management has notbeen taken. In such a situation, DRT may be required to issue directionto the CMM / DM approached by the Bank / Financial Institution. Asalready noticed in the referral order dated 26.07.2012, Section 3(2) of theDRT Act requires the notification constituting the DRT to specify thearea within which the said DRT shall exercise jurisdiction. A DRT atDelhi, as in the facts of the present case, would have no jurisdiction overthe DM at Meerut or for that matter over the property at Meerut. We areof the view that exercise of jurisdiction under Section 17(1) of theSARFAESI Act by DRTs of a place other than where the secured assetis situated is likely to lead to complexities and difficulties and which arebest avoided. It may also be mentioned that the remedy under Section17(1) is available not only to the borrower or mortgagor, but also to anyother person aggrieved from the measures under Section 13(4). InSatyawati Tandon supra it was invoked by the guarantor. If it were tobe held that more than one DRT will have jurisdiction, it may also leadto remedy under Section 17(1) against same action under Section 13(4)being invoked by different persons before different DRTs. There is noprovision in the DRT Act for transfer of proceedings from one DRT toanother. The Supreme Court, in Authorized Officer, Indian OverseasBank Vs. Ashok Saw Mill (2009) 8 SCC 366 has held the scope of a

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proceeding under Section 17(1) to be extending to scrutinizing even thesteps taken by the Bank / Financial Institution subsequent to measuresunder Section 13(4). Such scrutiny by the DRT may entail adjudicationof disputes as to preservation and protection of the secured asset (seeRule 4 of the Security Interest (Enforcement) Rules, 2002), valuation ofthe secured asset (Rule 5), sale thereof (Rules 6 to 8) and in the caseof the borrower being a company in liquidation, distribution of saleproceeds thereof or between more than one secured creditor of thesecured asset (see Section 13(9) of the SARFAESI Act). Such scrutinyby DRT of post Section 13(4) measures may yet further enlarge thenumber of persons interested in invoking the remedy under Section 17(1).Also, all these disputes bear closest proximity to the place where thesecured asset is situated and the DRT having jurisdiction over that placewould be the most suitable DRT to entertain such disputes.

19. As far as Section 17(7) of the SARFAESI Act requiring disposalof appeals under Section 17(1) of the SARFAESI Act, “as far as maybe” in accordance with the provisions of the DRT Act and the Rulesframed thereunder is concerned, though the learned Single Judge of thisCourt in Upendra Kumar Vs. Harpriya Kumar MANU/DE/0136/1978had held that Section 21 of the Hindu Marriage Act, 1955 providing forthe proceedings thereunder to be regulated ‘as far as may be’ by theCPC, could not be read as incorporating every provision of CPC ormaking applicable the provisions of CPC to substantive aspects likejurisdiction but the Supreme Court in Guda Vijayalakshmi Vs. GudaRamachandra Sekhara Sastry AIR 1981 SC 1143 took a contraryview and held that Section 21 of the Hindu Marriage Act does not makea distinction between procedural and substantive provisions of CPC andthus the provisions of CPC as partake of the character of substantive laware also by implication to apply to the proceedings under the HinduMarriage Act and the use of the expression “as far as may be” is intendedto exclude only such provisions of CPC as may be inconsistent with anyof the provisions of the Hindu Marriage Act. Applying the said law,Section 17(7) of the SARFAESI Act is to be read as providing fordisposal of appeal under Section 17(1) of the SARFAESI Act in accordancewith the provisions of the DRT Act and the Rules made thereunder saveas otherwise provided in the SARFAESI Act.

20. The expression ‘as far as may be’ still means ‘to the extentnecessary and practical’. Supreme Court in Dr. Pratap Singh Vs. Directorof Enforcement (1985) 3 SCC 72 held that the expression ‘so far asmay be’ has always been construed to mean that those provisions maybe generally followed to the extent possible but if a deviation becomesnecessary to carry out the purposes of the Act in which reference toanother legislation is made, it would be permissible. Similarly, in UjagarPrints Vs. Union of India (1989) 3 SCC 488 a five Judge Bench of theSupreme Court held that the Legislature sometimes takes a shortcut andtries to reduce the length of a statute by omitting elaborate provisionswhere such provisions have already been enacted earlier and can beadopted for the purpose in hand. The expression ‘so far as may be’ washeld to be meaning ‘to the extent necessary and practical’.

21. What we however find is that the DRT Act is not containingany provision for territorial jurisdiction of an appeal as under Section17(1) of the SARFAESI Act, even if it were to be construed not as anappeal and as an original application. The jurisdictional provision underSection 19(1) of the DRT Act is only for applications by the Bank /Financial Institution for recovery of debt from any person. An applicationby a Bank / Financial Institution for recovery of debt can by no stretchof imagination be equated with an appeal under Section 17(1) of theSARFAESI Act. We are therefore of the view that there is no provisionin the DRT Act providing for territorial jurisdiction of an appeal underSection 17(1) of the SARFAESI Act and the question of applicationthereof under Section 17(7) does not arise. Under Section 17(7) of theSARFAESI Act only that much of the DRT Act can be said to beincorporated therein as is contained in the DRT Act and not more.Whether a particular provision of DRT Act would apply or not, woulddepend upon the nature and scope of proceeding under the SARFAESIAct.

22. Once it is held that an appeal under Section 17(1) of theSARFAESI Act cannot be equated with an application by the Bank /Financial Institution for recovery of debt under Section 19 of the DRTAct, the limits of territorial jurisdiction described under Section 19(1) ofthe DRT Act cannot be made applicable to Section 17(1) of the SARFAESIAct.

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23. It would thus be seen that the provision for territorial jurisdictionunder Section 19 (1) of the DRT Act is only qua the applications to bemade by the Bank or Financial Institution for recovery of its debt.However, a proceeding under Section 17(1) of the SARFAESI Act isinitiated not by the Bank or the Financial Institution but by a personincluding the borrower aggrieved from the measures taken by the Bankor Financial Institution under Section 13 (4) of the SARFAESI Act. Weare thus of the view that notwithstanding Section 17(7) of the SARFAESIAct providing for the disposal of the proceedings under Section 17(1) ofthe SARFAESI Act in accordance with the provisions of the DRT Actand the Rules made thereunder, the same cannot make the provisions ofSection 19(1) of the DRT Act applicable to proceedings under Section17(1) of the SARFAESI Act. As aforesaid, Section 19(1) of the DRT Actis not an omnibus provision qua territorial jurisdiction. It is concernedonly with providing for territorial jurisdiction for applications for recoveryof debts by the Banks / Financial Institutions. The same can have noapplication to the appeals under Section 17(1) of the SARFAESI Actwhich are to be preferred, not by the Banks / Financial Institutions, butagainst the Banks / Financial Institutions.

24. We are further of the view that the use, in Section 17(7) of theSARFAESI Act, of the words “as far as may be” and “save as otherwiseprovided in this Act” also exclude applicability even of the principlescontained in Section 19(1) of the DRT Act to determine the territorialjurisdiction of an appeal under Section 17(1) of the SARFAESI Act. Ourreasons therefor are stated herein below.

25. The provisions of Sections 14 and 17A of the SARFAESI Actclearly establish the nexus of the appeal under Section 17(1) to the placewhere the secured asset is situated. Section 14 of the SARFAESI Actvests the territorial jurisdiction, for filing of an application by the Bank/ Financial Institution for assistance in taking over possession of thesecured asset, in the Chief Metropolitan Magistrate (CMM) or the DistrictMagistrate (DM) within whose jurisdiction the secured asset is situated.Similarly, Section 17A of the SARFAESI Act, while making a provisionfor appeal under Section 17(1) of the SARFAESI Act for borrowersresiding in the State of Jammu & Kashmir (to which the DRT Act doesnot apply and where there are no DRTs), provides for filing of such

appeals in the Court of District Judge in that State having jurisdictionover the borrower. If an appeal under Section 17(1) of the SARFAESIAct was maintainable in any of the DRTs as mentioned in the DRT Actand the DRT Rules or as found by the Division Bench in Indira Devi i.e.either in the DRT having jurisdiction where the Branch of the Bank /Financial Institution which has disbursed the loan is situated or in theDRT where the Bank carries on business or in the DRT where cause ofaction wholly or in part arises, there was no need for insertion of Section17A of the SARFAESI Act with effect from 11.11.2004 to provide foran appeal under Section 17 of the SARFAESI Act by borrowers residingin the State of Jammu & Kashmir. Further, the jurisdiction under Section17A of the SARFAESI Act being limited to only one DRT i.e. the DRThaving jurisdiction over the borrower, is also indicative of the DRThaving jurisdiction in the matter under Section 17(1) of the SARFAESIAct being only one and the multiple choice available under Section 19(1)of the DRT Act being not applicable to an appeal under Section 17(1) ofthe SARFAESI Act.

26. It would thus be seen that the principles of Section 16 of theCPC are reflected in the Sections 14 and 17A of the SARFAESI Act.Assistance to the Secured Creditor has not been provided of any Courtbut only of the Court within whose jurisdiction secured asset is situated.This is not without reason. It is only the CMM / DM within whosejurisdiction such secured asset is situated who can render such assistance.

27. Mention at this stage may also be made of the dicta of theSupreme Court in Harshad Chiman Lal Modi Vs. DLF Universal(2005) 7 SCC 791 holding that Section 16 of the CPC recognizes a wellestablished principle that actions against res or property should be broughtin the forum where such res is situated and a Court within whoseterritorial jurisdiction the property is not situated has no power to dealwith and decide the rights or interests in such property or to give aneffective judgment with respect thereto. The Supreme Court met the plearaised, of Section 21 of the CPC, by holding that when a Court has nojurisdiction owing to the property being not situated within its jurisdiction,the objection goes to the extent of making the order of that Court anullity on the ground of want of jurisdiction and jurisdiction could nothave been conferred by non traverse or consent. The importance given

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ILR (2012) 6 DELHI 398CS (OS)

J.K. SYNTHETICS LTD. ….PLAINTIFF

VERSUS

DYNAMIC CEMENT TRADERS ….DEFENDANT

(VALMIKI J. MEHT A, J.)

CS (OS) NO : 782/1998 DATE OF DECISION: 13.9.2012

Indian Evidence Act, 1872—Section 34—Plaintiff filedsuit for recovery—According to plaintiff, suit amountwas on account of debit balance due from defendantas per running account—Defendant contested thesuit and pleaded that there was no running accountbut payment was made bill-wise—Also relationshipbetween parties was terminated all payments werecleared—Also suit was barred by limit ation—T o proverecovery of amount, plaintiff relied upon statement ofaccount. Held: A mere entry in the statement of accountis not sufficient to fasten any liability and the entriesin the statement of account have to be proved bymeans of the documents/vouchers of the transaction.

The only averment in the plaint for claiming amount due isthat the amount claimed in the suit is an entry dated31.3.1995 which is found in the statement of account of theplaintiff. The statement of account of the plaintiff has beenproved and exhibited as Ex.PW1/50. This is a statement ofaccount from 1.4.1993 to December, 1997. Anotherdocument, which of course, is not a statement of accountbut only some of the entries in the statement of account isEx.PW1/49. In view of Section 34 of Indian Evidence Act,1872, a mere entry in the statement of account is notsufficient to fasten any liability and the entries in the statement

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to territorial jurisdiction in the context of immovable property can thusbe deciphered from the said judgment.

28. We are thus unable to concur with the second reasoning givenby the Division Bench in Indira Devi of any need to provide parity to theborrower with the Bank, in the matter of territorial jurisdiction. Principlesof parity do not apply to territorial jurisdiction. Merely because thedefendant if were to sue, can sue at the place of the residence of theplaintiff, does not entitle the plaintiff to sue at the place of his residenceif that place would otherwise not have territorial jurisdiction. We re-emphasize that the scope of the proceedings under Section 19(1) of theDRT Act is entirely different from a proceeding under Section 17(1) ofthe SARFAESI Act and no need for parity exists.

29. For all the aforesaid reasons, we set aside the judgment of theDivision Bench in Indira Devi supra and hold that an appeal / applicationunder Section 17(1) of the SARFAESI Act can be filed only before theDRT within whose jurisdiction the property / secured asset against whichaction is taken is situated and in no other DRT.

30. Axiomatically, we do not find any error in the order of theDRT, Delhi impugned in this petition holding it to have no jurisdiction toentertain the appeal / application under Section 17(1) of the SARFAESIAct, the mortgaged property against which action is to be taken beingsituated at Meerut. No costs.

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of account have to be proved by means of the documents/vouchers of the transaction. Admittedly, the entry dated31.3.1995 in Ex.PW1/50 for Rs. 69,36,240.36/- has notbeen substantiated by means of any document showing asto how and for what this amount of Rs. 69,36,240.36/- isdue. The Supreme Court in the judgment reported asCentral Bureau of Investigation Vs. V.C. Shukla & Ors.(1998) 3 SCC 410 has observed that Section 34 is in twoparts. The first part speaks of relevancy of the entries inevidence once the books of accounts are shown to beregularly kept in the course of business and the secondaspect is that even if it is proved that the statements ofaccounts are regularly kept in course of business, yet, thestatement of account/entry alone is not sufficient evidenceto charge a person with liability. The object of law is thatmere entries should not be sufficient to fasten the monetaryliability unless documents of transaction (which would beinvoices, challans and receipts of supply of goods etc) arefiled and exhibited in support of the entries made. I thereforehold that mere entry of Rs. 69,36,240.36/- existing in thestatement of account in Ex.PW1/50 is not sufficient tocharge the defendant with liability as claimed by the plaintiffin the suit. Once this entry is not proved, then, even if I takethe payment of Rs. 2 lacs made by the defendant on 21/22.4.1995 and as admitted by the defendant in his cross-examination, will not in any manner help to prove theexistence of debit entry of Rs. 69,36,240.36/-. Even theplaint is totally silent as to because of what reason this entryexists i.e for supply of goods or towards interest or towardsany other aspect, and if so what are such invoices/agreementqua the supply or interest or other aspects. I therefore holdthat the plaintiff has failed to prove the entries dated31.3.1995. (Para 6)

Important Issue Involved: A mere entry in the statementof account is not sufficient to fasten any liability and theentries in the statement of account have to be proved bymeans of the documents/vouchers of the transaction.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFF : Mr. S.K. Chachra, Advocates withMs. Gaganpreet Chawla, Advocate.

FOR THE DEFENDANT : None.

CASES REFERRED TO:

1. Syndicate Bank vs. R. Veeranna & Ors. (2003) 2 SCC15.

2. Central Bureau of Investigation vs. V.C. Shukla & Ors.(1998) 3 SCC 410.

3. United Bank of India vs. Naresh Kumar & Ors. AIR1997 SC 3.

4. Hindustan Forest Company vs. Lal Chand and OthersAIR 1959 SC 1349.

RESULT: Suit decreed.

VALMIKI J. MEHTA, J. (ORAL)

1. The subject suit for recovery of Rs. 45,30, 506.36/- has beenfiled by the plaintiff-M/s. J.K. Synthetics Ltd against the defendant-M/s.Dynamic Cement Traders. The plaintiff was the seller of cement and thedefendant was the buyer. As per para 3 of the plaint, the suit amount isthe debit balance which is due from the defendant as per the runningaccount.

2. The defendant has contested the suit and pleaded that there wasno running account but payment was made bill-wise. The defendant hasreferred to the fact that either each bill was cleared under a specificcheque or there was a bunch of bills corresponding to the amount of thatcheque which was given for payment of those bills. The defendant

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claims that relationship between the parties was terminated w.e.f. 31.3.1995and whereafter there was only a single transaction on 26.9.1995 andeven that was cleared by making the payment of specific bill amount bycheque dated 10.10.1995 of Rs. 76,960/-. The defendant has pleaded thatthe suit is barred by limitation.

3. The following issues were framed on 16.3.2004:-

“1. Whether the suit is barred by limitation? OPD

2. Whether the suit has been filed by a duly authorized person?

3. Whether the plaintiff’s company supplied the requisite quantityof cement to the defendants?

4. To what amount, if any, the plaintiff is entitled to recoverfrom the defendant?

5. Whether the plaintiff is entitled to interest and if so at whatrate and to what amount?

6. Relief.”

Issue No.2

4. So far as issue No.2 is concerned, though the plaintiff has failedto file any resolution of the Board of Directors of the plaintiff-companynor was filed any power of attorney in favour of Sh. A. Pradhan whohas filed the suit, however, since Sh. A. Pradhan is the Deputy GeneralManager in terms of the statement of Sh. Sanjeev Sharma, PW-1, andthe fact that suit has been pursued by the plaintiff to the hilt, in view ofthe judgment of the Supreme Court in the case of United Bank of IndiaVs. Naresh Kumar & Ors. AIR 1997 SC 3, it is held that suit is validlyinstituted. A principal officer/Deputy General Manager is under Order 29CPC authorized to institute the suit. This issue is therefore decided infavour of the plaintiff.

Issue No.1

5. Issue No.1 pertains to limitation. In the peculiar facts of thiscase and as stated below, this issue will have to be decided with issueNos.3 and 4 as to what is the amount the plaintiff is entitled to recover.

Issue Nos.3 and 4

6. The only averment in the plaint for claiming amount due is thatthe amount claimed in the suit is an entry dated 31.3.1995 which is foundin the statement of account of the plaintiff. The statement of account ofthe plaintiff has been proved and exhibited as Ex.PW1/50. This is astatement of account from 1.4.1993 to December, 1997. Anotherdocument, which of course, is not a statement of account but only someof the entries in the statement of account is Ex.PW1/49. In view ofSection 34 of Indian Evidence Act, 1872, a mere entry in the statementof account is not sufficient to fasten any liability and the entries in thestatement of account have to be proved by means of the documents/vouchers of the transaction. Admittedly, the entry dated 31.3.1995 inEx.PW1/50 for Rs. 69,36,240.36/- has not been substantiated by meansof any document showing as to how and for what this amount of Rs.69,36,240.36/- is due. The Supreme Court in the judgment reported asCentral Bureau of Investigation Vs. V.C. Shukla & Ors. (1998) 3SCC 410 has observed that Section 34 is in two parts. The first partspeaks of relevancy of the entries in evidence once the books of accountsare shown to be regularly kept in the course of business and the secondaspect is that even if it is proved that the statements of accounts areregularly kept in course of business, yet, the statement of account/entryalone is not sufficient evidence to charge a person with liability. Theobject of law is that mere entries should not be sufficient to fasten themonetary liability unless documents of transaction (which would beinvoices, challans and receipts of supply of goods etc) are filed andexhibited in support of the entries made. I therefore hold that mere entryof Rs. 69,36,240.36/- existing in the statement of account in Ex.PW1/50 is not sufficient to charge the defendant with liability as claimed bythe plaintiff in the suit. Once this entry is not proved, then, even if I takethe payment of Rs. 2 lacs made by the defendant on 21/22.4.1995 andas admitted by the defendant in his cross-examination, will not in anymanner help to prove the existence of debit entry of Rs. 69,36,240.36/-. Even the plaint is totally silent as to because of what reason this entryexists i.e for supply of goods or towards interest or towards any otheraspect, and if so what are such invoices/agreement qua the supply orinterest or other aspects. I therefore hold that the plaintiff has failed to

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cross-examination DW-1 was forced to admit the documents Ex.DW1/D1 and DW1/D2. These two documents are one page each of the balancesheets as maintained by the defendant for the years ending 31.3.1995 and31.3.1996. As per the document DW1/D2, the amount due to the plaintiffis shown at Rs. 22,70,973.89/-. It would be for this amount the suit hastherefore to be decreed inasmuch as this specific admission of liability isitself enough to pass a money decree against a person vide SyndicateBank Vs. R. Veeranna & Ors. (2003) 2 SCC 15. As per the judgmentof the Supreme Court in this case, an unqualified acknowledgment ofliability gives a fresh period of limitation and also gives the plaintiff acause of action to base his claim. Accordingly, giving the plaintiff benefitof the judgment in the case of Syndicate Bank, I hold that plaintiff willbe entitled to a money decree of Rs. 22,70,973.89/-. Of course, at thisstage, I must also mention that counsel for the plaintiff vainly tried toupgrade this amount of Rs. 22,70,973.89/- to the suit amount, however,this argument is liable to be rejected inasmuch as either the document istaken as a whole or rejected as a whole. The document cannot be takenin bits and pieces to overlook one part and to concentrate on the otherpart.

10. Issue Nos.1, 3 and 4 are decided by holding that the plaintiffwill be entitled to a money decree of Rs. 22,70,973.89/- and for whichamount the suit is within limitation.

Issue No.4

11. Issue No.4 is with respect to claim of the plaintiff to interest.Since the transaction is a commercial transaction, considering all thefacts and circumstances of the present case, I hold that the plaintiff willbe entitled to interest @ 9% per annum simple from 1.4.1996 till the dateof filing of the suit. Plaintiff will also be entitled to interest at the samerate pendente lite and future till payment. Issue No.4 is decided accordingly.

Relief

12. The suit of the plaintiff is therefore decreed for a sum of Rs.22,70,973.89/- alongwith interest @ 9% per annum simple from 1.4.1996till the date of filing of the suit and which rate of interest will also be theinterest pendente lite and future till payment. Plaintiff will also be entitled

J.K. Synthetics Ltd. v. Dynamic Cement Traders (Valmiki J. Mehta, J.)

prove the entries dated 31.3.1995.

7. At this stage, I must state that the statement of account Ex.PW1/50 can be taken as an open, mutual and current account only upto theend of the financial year 1992-93 inasmuch as w.e.f. 1.4.1995 thestatement of account itself shows that the cheques which have beendrawn by defendant are with respect to either a specific bill or a specificbunch of bills. In fact, the defendant has very meticulously in the evidenceled on its behalf shown each particular invoice of the plaintiff and eachparticular cheque covering that particular invoice or bunch of invoices.In the affidavit of Sh. Vinod Sharma, DW-1 from paras 9(i) to 9(xxxxviii)DW-1 has given Ex.P-1, Ex.PW-1/2 to Ex.PW-1/48 as the bills and ineach of the paragraphs with respect to the bills, the specific chequetowards that amount has been given. This aspect is not disputed in anymanner in the cross-examination of this witness. Therefore, for thefinancial year 1995-96, there would be no mutuality as is known underArticle 1 of the Schedule I of the Limitation Act, 1963 inasmuch asmutuality requires shifting balances vide Hindustan Forest Company v.Lal Chand and Others AIR 1959 SC 1349.

8. The net result of the above is that:-

(i) The entry of Rs. 69,36,240.36/- has not been proved. If thisentry is not proved, therefore, the suit amount of Rs.45,30,506.36 andwhich is part of this entry amount will also not stand proved. Once theprincipal due of Rs. 45,30, 506.36/- is not proved nothing will come outfor the purpose of extending of limitation by payment of cheque of Rs.2 lacs on 21/22.4.1995 by the defendant and at best it will only amountto a reduction of the liability of the defendant, assuming it was provedbut which has not been done.

(ii) If, however, the principal amount due was proved, the suitwould have been within limitation inasmuch as the suit was filed on17.4.1998, and limitation once we take the cheque of Rs. 2 lacs intoaccount, would have expired by 21/22.4.1998.

9. The question is in spite of the above conclusions can the suit ofthe plaintiff be decreed for any amount. On this aspect, the counsel forthe plaintiff has astutely cross-examined the witness DW-1 and in the

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to costs in accordance with the Rules of this Court. Decree sheet beprepared.

ILR (2012) 6 DELHI 405CS (OS)

K.K. SAREEN AND ORS. ….PLAINTIFFS

VERSUS

NEETA SHARMA AND ORS. ….DEFENDANTS

(V.K. JAIN, J.)

CS (OS) NO. : 1318/2005 DATE OF DECISION: 20.09.2012I.A. NO. 19926/2011

Code of Civil Procedure, 1908—Order 6 Rule 17—Plaintiffs had filed suit for damages and possession ofsuit property against defendants—Defendantscontested vigorously suit and at time of advancementof final arguments, they moved application seekingamendment of the written statement. Held:—Noapplication for amendment shall be allowed unlessthe court is satisfied that inspite of due diligence, thematter could not be raised before the commencementof trial. The proviso to Order 6 Rule 17of the code putan embargo on the exercise of jurisdiction by theCourt; unless the jurisdiction fact as envisaged in theproviso is found to be existing. No amendment ofplaint can be allowed.

I had an occasion to consider aforesaid provision in Smt.Kailash Sharma v. Sh. Jagdish Lal Sharma & Others2010 (10) AD Del. 622, and the following view was taken byme in this regard:-

“9. Before the proviso came to be added to Order VIRule 17 of CPC, it was not uncommon for theunscrupulous litigants, who, for one reason or theother, were not interest in expeditious disposal of thecase, to prolong the trial by seeking unnecessary andsometimes mala fide and frivolous amendments, inorder to delay the progress of the trial. This mischiefwas sought to be remedied by the legislature byputting an embargo on the power of the Court to allowamendments, once the trial has begun. That preciselywas the objective behind adding the aforesaid provisoto the statute book. The legislative intent, therefore,needs to be given a meaningful effect and, therefore,unless the amendment sought by a party squarelyfalls in the four corners of the legal provision, theCourts need to discourage such amendments. Thelegislative intent cannot be frustrated by the Courtsby giving so liberal an interpretation as to allow theamendment even where they find that the amendmentnow sought by the party could, on exercise of duediligence, have been conveniently sought before thetrial began.” (Para 3)

Important Issue Involved: No application for amendmentshall be allowed unless the court is satisfied that inspite ofdue diligence the matter could not be raised before thecommencement of trial. The proviso to Order 6 Rule 17 ofthe Code put an embargo on the exercise of jurisdiction bythe Court and unless, the jurisdiction fact as envisaged inthe proviso is found to be existing. No amendment can beallowed.

[Sh Ka]

APPEARANCES:

FOR THE PLAINTIFFS : Ms. Shalini Kapoor and Ms. KritiArora Advs.

405 406K.K. Sareen and Ors. v. Neeta Sharma and Ors. (V.K. Jain, J.)

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FOR THE DEFENDANTS : Mr. K.C. Mittal, Adv. for D-1.

CASES REFERRED TO:

1. Smt. Kailash Sharma vs. Sh. Jagdish Lal Sharma & Others2010 (10) AD Del. 622.

2. Vidyabai vs. Padmalatha 2009 (2) SCC 409.

3. Chander Kanta Bansal vs. Rajinder Singh Anand AIR2008 Supreme Court 2234.

4. Rajkumar Gurawara (Dead) through LRs. vs. S.K. Sarwagiand Co. Pvt. Ltd. and Anr. AIR 2008 SCC 2303.

RESULT: Application dismissed.

V.K. JAIN, J. (ORAL)

IA No. 19926/2011 (O. 6 R. 17 CPC)

1. This is an application for amendment of the written statement.It is stated in para 2 of the application that the plaintiffs have admittedthe status of defendant No. 1 as a tenant from 01.04.1993 to 30.06.1994and, therefore, this Court has no jurisdiction to try the present suit. Theapplicant wants to amend the written statement by inserting the followingpreliminary objections:-

“That even otherwise admittedly, the defendant No. 1 had beenpaying the rent to the plaintiffs hence this Hon’ble court has nojurisdiction to entertain the present suit in view of the bar ofsection 50 of Delhi Rent Control Act, 1958.

The following sub-paras is sought to be inserted after paras No.8to 11 and the new para 17 is also sought to be inserted as follows:-

“It is submitted that the defendant No. 1 has annexed the rentreceipts with her original written statement which belies the caseof the plaintiff of alleged oral licensee.

It is submitted that admittedly, the defendant No. 1 had beenpaying rent to the plaintiffs and as such, at best the defendantNo. 1 may be termed as a tenant in respect of the suit propertyand certainly, the defendant No. 1 is not a licensee of the plaintiffs

as painted by them in the plaint and hence the suit of the plaintiffsis not maintainable before this Hon’ble Court and the plaintiffshave other efficacious remedy available to them under the rentlaws before the appropriate forums.

17. That the contents of para No. 17 of the plaint are a matterof record, except that this Hon’ble Court has no jurisdiction toentertain and try the present suit in view of the bar under Section50 of Delhi Rent Control Act, 1958. Hence no cause of actionhad ever arisen in favour of the plaintiffs in any mannerwhatsoever.”

2. The proviso to Order 6 Rule 17 of the Code of Civil Procedureprovides that no application for amendment shall be allowed after the trialhas commenced, unless the Court comes to the conclusion that in spiteof due diligence, the party could not have raised the matter before thecommencement of trial.

3. In Vidyabai vs. Padmalatha 2009 (2) SCC 409, referring to theproviso added to Order VI Rule 17 of CPC by way Civil Procedure Code(Amendment) Act, 2002, Supreme Court observed that the proviso iscouched in a mandatory form and held that the jurisdiction of the Courtto allow an application for amendment is taken away unless the conditionsprecedent therefor are satisfied viz. it must come to a conclusion that inspite of due diligence the parties could not have raised the matter beforethe commencement of the trial. The Court clearly held that no applicationfor amendment shall be allowed unless the Court is satisfied that in spiteof due diligence the matter could not be raised before the commencementof trial. The Court was of the view that the proviso puts an embargo onthe exercise of jurisdiction by the Court and unless the jurisdiction factas envisaged in the proviso is found to be existing, the Court will haveno jurisdiction at all to allow the amendment of the plaint.

In Rajkumar Gurawara (Dead) through LRs. Vs. S.K. Sarwagiand Co. Pvt. Ltd. and Anr. AIR 2008 SCC 2303, Supreme Court,referring to the aforesaid proviso to Rule 17 of Order VI, inter alia,observed as under:-

“The said rule with proviso again substituted by Act 22 of 2002

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with effect from 01.07.2002 makes it clear that after thecommencement of the trial, no application for amendment shallbe allowed. However, if the parties to the proceedings able tosatisfy the court that in spite of due diligence could not raise theissue before the commencement of trial and the court satisfiestheir explanation, amendment can be allowed even aftercommencement of the trial. To put it clear, Order VI Rule 17C.P.C. confers jurisdiction on the Court to allow either party toalter or amend his pleadings at any stage of the proceedings onsuch terms as may be just. Such amendments seekingdetermination of the real question of the controversy betweenthe parties shall be permitted to be made. Pre-trial amendmentsare to be allowed liberally than those which are sought to bemade after the commencement of the trial. As rightly pointed outby the High Court in the former case, the opposite party is notprejudiced because he will have an opportunity of meeting theamendment sought to be made. In the latter case, namely, afterthe commencement of trial, particularly, after completion of theevidence, the question of prejudice to the opposite party mayarise and in such event, it is incumbent on the part of the Courtto satisfy the conditions prescribed in the proviso.”

I had an occasion to consider aforesaid provision in Smt. KailashSharma v. Sh. Jagdish Lal Sharma & Others 2010 (10) AD Del. 622,and the following view was taken by me in this regard:-

“9. Before the proviso came to be added to Order VI Rule 17 ofCPC, it was not uncommon for the unscrupulous litigants, who,for one reason or the other, were not interest in expeditiousdisposal of the case, to prolong the trial by seeking unnecessaryand sometimes mala fide and frivolous amendments, in order todelay the progress of the trial. This mischief was sought to beremedied by the legislature by putting an embargo on the powerof the Court to allow amendments, once the trial has begun.That precisely was the objective behind adding the aforesaidproviso to the statute book. The legislative intent, therefore, needsto be given a meaningful effect and, therefore, unless theamendment sought by a party squarely falls in the four corners

of the legal provision, the Courts need to discourage suchamendments. The legislative intent cannot be frustrated by theCourts by giving so liberal an interpretation as to allow theamendment even where they find that the amendment now soughtby the party could, on exercise of due diligence, have beenconveniently sought before the trial began.”

4. The case set out in the written statement is that in the year 1991at the time when the suit property was purchased by the plaintiffs, theyassured the defendant that they would transfer and convey the same toher for a total consideration of Rs 3,50,000/-. It is further alleged thatit was the consequence of the said agreement that defendant No.1 movedin the suit property in October, 1992 and renovated the same by spendinga sum of Rs 4,95,000/-. Thus, a clear case has been pleaded in thewritten statement setting up an agreement to sell in favour of the defendantNeeta Sharma, who is the daughter of the plaintiffs.

The following issues were framed on 06.03.2006:-

“1. Whether the plaint has been verified in accordance withOrder VI Rule 15 CPC? OPD

2. Whether suit discloses any cause of action in favour of theplaintiffs and against the defendants? OPP

3. Whether there was any sale consideration paid by defendantNo. 1 to the plaintiffs in respect of the suit property? OPD

4. Whether the defendant No. 2 had paid Rs 16,00,000/- to theplaintiffs as a sale consideration in respect of the suit propertyand/or if any documents such as Agreement to Sell, Sale Deedetc. has been executed by defendant No. 2 in favour of theplaintiffs? OPD

5. Whether the defendant is entitled to a direction against theplaintiffs to execute and register Agreement to Sell, Sale Deed inrespect of suit property?

6. Whether defendant No. 1 is entitled to return of the allegedbalance amount with interest after adjusting the so called saleconsideration?

409 410K.K. Sareen and Ors. v. Neeta Sharma and Ors. (V.K. Jain, J.)

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7. Whether the plaintiffs are entitled for damages and possessionof the suit property from the defendants if so, at what rate andat what interest? OPP

8. Relief.”

5. It was thus be seen that the defendant did not claim at any pointof time that she was a tenant in the suit property. Accordingly no issuein this regard was framed by the Court. The evidence of the plaintiff wasconcluded on 25.11.2009. Thereafter, evidence of the defendant wasalso recorded and concluded and the parties were directed to file synopsiswith list of judgments they wish to rely upon. Synopsis by the counselfor the plaintiff was filed on 06.09.2011 with copy to the oppositecounsel. It was thereafter that the application for amendment of thewritten statement was filed. In the application under consideration, thereis absolutely no explanation as to why the plea of tenancy was taken inthe written statement. There is no explanation as to why the amendmentwas not sought before the trial began in this case. The learned counselfor the defendant states that in cross-examination the plaintiff No. 2 hasadmitted having executed various rent receipts in favour of SouthernComfort Fashion Limited. This, according to the learned counsel for thedefendant, is the company where the defendant was employed. Even ifthe aforesaid company was a tenant in the suit property, the defendantherself does not acquire the status of a tenant in case the said tenancywas surrendered or otherwise expired by afflux of time. The defendanthas also placed on record, a number of other rent receipts purporting tobe executed in her favour by plaintiff No.2 who is her mother. The caseof the plaintiff is that these rent receipts do not bear signature of plaintiffNo.2 and her purported signatures on these rent receipts are forged.These rent receipts were denied during the course of admission/denial ofdocuments as well as during cross-examination of plaintiff No. 2. Sincethese documents were in possession of the defendant, it was certainlypossible for her to take the plea of tenancy at the time written statementwas filed. If for some reason, the plea could not be taken in the originalwritten statement, the amendment could certainly have been sought beforecommencement of recording of evidence in the matter. Since the defendanthas failed to establish that she despite exercise of due diligence could nothave sought amendment of the written statement before commencement

of the trial, the application is clearly hit by the proviso to Order 6 Rule17 of the Code of Civil Procedure.

6. The learned counsel for the defendant/applicant has relied uponthe decision of Supreme Court in Chander Kanta Bansal v. RajinderSingh Anand AIR 2008 Supreme Court 2234, where the Apex Courtreferring to the proviso to Order 6 Rule 17 of the Code of Civil Procedure,inter alia, observed as under:-

“8. X X X X The proviso limits the power to allow amendmentafter the commencement of trial but grants discretion to thecourt to allow amendment if it feels that the party could not haveraised the matter before the commencement of trial in spite ofdue diligence. It is true that the power to allow amendmentshould be liberally exercised. The liberal principles which guidethe exercise of discretion in allowing the amendment are thatmultiplicity of proceedings should be avoided, that amendmentswhich do not totally alter the character of an action should begranted, while care should be taken to see that injustice andprejudice of an irremediable character are not inflicted upon theopposite party under pretence of amendment.

10. The entire object of the said amendment is to stall filing ofapplications for amending a pleading subsequent to thecommencement of trial, to avoid surprises and the parties hadsufficient knowledge of the others case. It also helps in checkingthe delays in filing the applications. Once the trial commences onthe known pleas, it will be very difficult for any side to reconcile.In spite of the same, an exception is made in the newly insertedproviso where it is shown that in spite of due diligence, he couldnot raise a plea, it is for the court to consider the same. Therefore,it is not a complete bar nor shuts out entertaining of any laterapplication. As stated earlier, the reason for adding proviso is tocurtail delay and expedite hearing of cases.”

There is no quarrel with the proposition of law enunciated bySupreme Court in the above-referred case. But, nowhere has the Courtsaid that an application seeking amendment of the written statementshould be allowed after the trial has practically concluded even in a case

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65 A—Respondent No. 2 to 6 availed loans from ICICIBank by creating equitable mortgage of property inquestion owned by Respondent no. 6 HUF as well asother immovable properties and also hypothecation oftheir movable assets—Since borrowers failed to repaysaid loan, ICICI Bank approached DRT by filling twooriginal applications—DRT restrained Respondent No.6 from selling or parting with possession of mortgagedproperties—Later, ICICI assigned aforesaid debt andincidental rights together with security interest heldby it to Respondent no. 1 Bank I.e. Kotak MahindraBank Ltd—Respondent no. 1 Bank initiated proceedingfor recovery by issuing notice under Section 13 (2) ofSARFAESI Act—HUF filed Securitization Appeal beforeDRT—While said Securitization Appeal was pendingHUF and petitioner, despite restrain order, enteredinto registered lease deed—Securitization Appealdismissed by DRT against which HUF filed appealbefore DRAT—In meanwhile HUF and Respondent No.1 Bank entered into a compromise and movedapplication before DRT—In terms of joint compromise,consent decree passed by DRT—Alleging default inpayment by borrowers, in terms of aforesaidcompromise, Respondent no. 1 Bank moved applicationunder Section 14 of SARFESI Act before DRT forseeking assistance in taking possession of mortgagedproperties—Borrowers filed Securitization Appealagainst same before DRT—DRT declined to grantinterim relief—subsequently writ petition filed beforeHigh Court wherein borrowers offered to liquidatetheir dues by bringing in purchasers—High Courtdismissed application seeking extension of time tosell property observing that borrowers have not onlycheated and misled Respondent no. 1 Bank, but havebeen even tried to over reach this court by notdisclosing to this court that they had created thirdparty interest in respect of various portions of

413 414 Harsh Vardhan Land Ltd. v. Kotak Mahindra Bank Ltd. (Vipin Sanghi, J.)

where there is no explanation at all for not seeking amendment beforecommencement of the trial. The Court needs to keep in mind that in theevent the amendment is allowed, amended written statement will have tobe taken on record and the plaintiff will have to given an opportunity tofile replication to the amended written statement. Thereafter, an issue willhave to be framed with respect to the plea of tenancy which the defendantproposes to set up by way of proposed amendment. The parties will thenhave to be given an opportunity to lead evidence on the additional issue.This inevitably is likely to result in delaying the trial for a substantialperiod. Considering all these facts and circumstances of the case coupledwith the fact that there is no explanation for not seeking the amendmentbefore commencement of trial, I find no merit in the application and thesame is hereby dismissed.

CS(OS) 1318/2005

List in the category of ‘Finals’ at its turn before the Roster Bench.

ILR (2012) 6 DELHI 413W.P. (C)

HARSH VARDHAN LAND LIMITED ….APPELLANT

VERSUS

KOTAK MAHINDRA BANK LIMITED & ORS. ….RESPONDENTS

(SANJAY KISHAN KAUL & VIPIN SANGHI, JJ.)

W.P. (C) : 5930/2012 DATE OF DECISION: 21.9.2012

The Recovery of Debts due to Banks and FinancialInstitutions Act, 1993—Section 19 (1)—TheSecuritization and Reconstruction of Financial Assetsand Enforcement of Security Interest Act, 2002—Section13 (2), 14, 17—Transfer of Property Act, 1882—Section

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mortgaged properties—In meanwhile, upon motion byRespondent no. 1 Bank, Ld. ACMM (Special Acts)appointed a court receiver to take possession ofmortgaged properties which included property inquestion—A notice in respect of taking physicalpossession of secured assets was served uponborrowers by court appointed receiver—Petitionerwhile in possession of property in question filedsecuritization appeal impugning aforesaid notice whichwas dismissed by DRT—Petitioner filed appeal beforeDRAT alongwith application seeking interim protectionagainst taking of possession of property in questionby court receiver—DRAT vide impugned orderdismissed application—Order challenged before HighCourt—Plea taken, joint application filed before DRTitself recorded that Respondent No. 1 bank would beentitled to receive lease rental arising out of propertyin question—Having so consented, Respondent NO. 1Bank cannot now take a plea that tenancy in questionwas in violation of restrain order—T enancy had beenentered into much prior to compromise applicationmoved by Respondent no. 1 Bank and borroweraccorded its consent and acceptance—Only right ofRespondent no. 1 Bank is to receive rent towardssatisfaction of outstands of borrowers—Aforesaidtenancy had been executed in ordinary course ofmanagement vide a registered lease deed—Amountof Rs. 4.5 crores referred to as security deposit inlease deed had actually been advanced to HUF as aloan, vide a separate agreement, which had to berepaid on expiry of terms of 36 months—Same was notin nature of a premium and as such tenancy was notin violation of section 65 A of T.P. Act—This court itselfin civil suit filed by petitioner herein seeking permanentinjunction against borrowers from dispossessingpetitioner from property in question was pleaded togrant interim protection to petitioner-Per contra plea

taken, tenancy relied upon by petitioner, is in utterviolation of restrain order of DRT—Same has beenentered into between petitioner and HUF in collusion,with a clear fraudulent intent to avoid/defeat requestof Respondent NO. 1 Bank and siphon mortgagedproperty—Considering terms and conditions ofagreements executed between petitioner and HUF,transaction of Rs. 4.5 Crores though nomenclature asa loan, was in true sense, a premium paid in respectof property in question and thus protection of section65 A is not available to petitioner—In terms of jointcompromise entered into between Respondent no. 1Bank and borrworrers, symbolic possession ofmortgaged properties already vested with RespondentNo. 1 Bank and physical possession of same could betaken by per its own discretion as and when it deemedso fit—T enancy of premises expired on 18.9.12 andpossession being taken over by Respondent No 1Bank after passing of impugned order, petitioner hereinhas no legs to seek any interim protection in respectof property in question—Held—DRT vide order dated2.5.2003 had in clear terms restrained borrowers fromcreating and third party interest in mortgagedproperties, including property in question—Said orderwas never modified or set aside in any proceedingsthereafter—However, despite same, tenancy withrespect to property in question came to be enteredinto between petitioner herein and HUF—This clearlydemonstrates fraudulent conduct, not only ofborrowers, but also of petitioner who colluded withborrowers—Said tenancy was not only in utterdisregard of DRT’s order but was also in the teeth ofprovisions of Section 65 A of T.P. Act which providesfor mortgagor’s power to lease mortgaged property,which is in its lawful possession—A perusal of same,reveals a flow of consideration of Rs. 4.5 Croresunder guise and garb of a loan and security deposit,

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which was much more than otherwise agreed rentalamount—As per terms of tenancy and loan agreementnot only would said amount fetch a monthly interest of2.92% to petitioner but in event of default of paymentof same, petitioner would have right to dispose ofleased premises through a public auction and recoveramount—Considering conduct and inability ofborrowers to pay of its principal loans/facilities, andconditions of said lease and loan agreement, were ineffect that of a virtual sale—Said amount was nothingbut a premium paid in respect of said property and assuch violative of Section 65 A of Act—Therefore,protection of said provision would not be available totenancy in question—Next submission of petitionerthat compromise entered into between borrowers andrespondent bank no. 1 provided for a deemed approvalto factum of tenancy in question and as such cannotbe overridden by mortgage created in favour ofrespondent no .1 bank, also has no merit whatsoever—Said compromise also gave symbolic possession ofmortgaged properties to respondent no. 1 Bank withdiscretionary right to take possession as and when itdeemed fit—Even if one were to accept plea ofpetitioner, that compromise (decreed by DRT) accordeda deemed approval to tenancy in question and ineffect over-rid earlier restrain order of DRT, samewould have to be subject and conditional to aforesaidpossessory rights of respondent no. 1 Bank whichformed a part of same compromise—For this reasonas well, said submission of petitioner also standsrejected—Moreover , Tenancy in question also st andsextinguished and possession restored to respondentno. 1 Bank—In view of same, nothing survives inpresent petition—Grievances, if any, that petitionermay have, in view of recovery of possession byrespondent no. 1 bank before expiry of tenancy inquestion are matters which are to be raised in

independent appropriate proceedings and can onlybe against HUF-Since respondent no. 1 Bank has noprivity of contract with petitioner, petitioner cannotclaim any relief against respondent no. 1 Bank—Presentpetition dismissed with costs.

Important Issue Involved: When tenancy reveals a flowof consideration under the guise and garb of a loan andsecurity deposit, which was more than the otherwise agreedrental amount, terms and conditions of the said lease andloan agreement would tantamount to virtual sale and violativeof Section 65 A of the T.P. Act. The protection of the saidprovision would not be available to the tenancy in question.

[Ar Bh]

APPEARANCES:

FOR THE APPELLANT : Mr. Hashmat Nabi, Advocates

FOR THE RESPONDENTS : Mr. Ashwini Kumar Mata, Sr.Advocates with Mr. Suresh Dobhaland Mr. Rahul Tyagi, Advocates forrespondent no . 1

RESULT: Petition dismissed.

VIPIN SANGHI, J. (Oral)

C.M. No. 12221/2012 (Exemption)

Exemption allowed, subject to just exceptions

Caveat No. 960/2012

Caveator/respondent no. 1 has entered appearance. The caveat is,accordingly, discharged.

1. The petitioner assails the order dated 30.07.2012 passed by theDebts Recovery Appellate Tribunal, Delhi (DRAT) in I.A. No.475/2012preferred by the petitioner in Appeal No.113/2012, rejecting the saidapplication seeking interim protection against the taking over of the

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possession of the commercial property in question admeasuring 3650 sq.ft. situated on the 9th floor of Gopaldass Bhawan, 28 Barakhamba Road,New Delhi, wherein the petitioner claims itself to be a tenant on amonthly rent of Rs.2 lacs under a registered lease deed dated 19.08.2009for a tenure of three years.

2. Respondent Nos. 2 to 6 herein (hereinafter referred to as the‘borrowers’) availed of loans/facilities from ICICI Bank by creatingequitable mortgage of the property in question, as well as other immovableproperties, and also the hypothecation of their movable assets. The propertyin question is owned by respondent No.6 i.e. R.L.Varma & Sons (HUF)(hereinafter referred to as the ‘HUF’)

3. Since the borrowers failed to repay the said loan/facility, ICICIBank approached the Debt Recovery Tribunal (DRT), by filing two separateOriginal Applications being O.A. No. 34/2003 and O.A. No. 36/2003under Section 19(1) of the Recovery of Debts due to Banks and FinancialInstitutions Act, 1993 (hereinafter referred to as the RDDBFI Act). TheDRT vide order dated 02.05.2003 restrained respondent No. 6 fromselling, alienating, disposing off, transferring or parting with the possessionin any manner or creating third party interest in respect of the mortgagedproperties. Later, ICICI assigned the aforesaid debt and the incidentalrights together with the Security interest held by it to respondent No. 1Bank i.e., M/s Kotak Mahindra Bank Limited.

4. Respondent No. 1 Bank initiated proceedings for recovery byissuing notice under Section 13(2) of the Securitization and Reconstructionof Financial Assets and Enforcement of Security Interest Act, 2002(SARFAESI Act). The HUF filed Securitization Appeal No. 80/2008 beforethe DRT under Section 17 of SARFAESI Act. While the said SecuritizationAppeal was pending, the HUF and the petitioner, despite restrain orderdated 2.5.2003, entered into the aforesaid registered lease deed.

5. Though the rent of the said commercial property was shown asRs.2 lacs per month, it is clear that the real transaction was worth muchmore. On the same day, the parties executed two other instruments,namely, a loan agreement and a special power of attorney in favour ofthe petitioner. Under the loan agreement, a loan of Rs.4.5 crores wasadvanced by the petitioner/lessee to the lessor i.e. the HUF with interest

at the rate of 2.92% per month. The special power of attorney vestedcomprehensive rights in favour of the petitioner to deal with the saidproperty.

6. From the said three instruments, as also the fact that the possessionof the said property was parted with by the HUF in favour of thepetitioner, it is clear that it was not a plain and simple lease agreementexecuted between the parties at arm’s length. It is clear that the rent wasdeliberately suppressed at Rs.2 lacs per month, whereas the considerationthat was passing from the petitioner to the HUF, for grant of the leasewas much more.

7. The said Securitization Appeal No. 80/2008 came to be dismissedby the DRT, against which the HUF filed an appeal before the DRAT.In the meantime, Respondent No. 1 Bank and the Borrowers entered intoa compromise and, accordingly, moved an application before the DRT inthe pending O.A. No. 34/2003 and O.A. No. 36/2003. The DRT in termsof the joint compromise passed a consent decree vide order dated3.2.2011.

8. Alleging default in payment by the borrowers, in terms of theaforesaid compromise, respondent No. 1 Bank moved an applicationunder Section 14 of the SARFAESI Act before the DRT for seekingassistance in taking possession of the mortgaged properties.

9. It appears that the borrowers filed Securitization Appeal againstthe same before the DRT. However, the learned DRT declined to grantinterim relief. Subsequently, WP(C) No. 7653/2011 was filed before thisCourt, wherein, it appears, the borrowers offered to liquidate their duesby bringing in purchasers. However, the borrowers did not live up totheir representations. This Court vide order dated 10.2.2012 dismissedthe application filed by the borrowers in the aforesaid writ petition,seeking extension of time to sell the property. It was observed that theborrowers have not only cheated and mislead the respondent No. 1 Bank,but have even tried to overreach this Court by not disclosing to this courtthat they had created third party interest in respect of various portionsof mortgaged properties.

10. At this stage, we may note that the aforesaid facts have not

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been pleaded and disclosed in the present writ petition. The petitioner hasmerely filed some documents from which we have been able to gatherthe same.

11. In the meantime, upon motion by respondent No. 1 Bank,learned ACMM (Special Acts) Central, Tis Hazari Court, Delhi, videorder dated 20.1.2012 appointed a court receiver to take possession ofthe mortgaged properties which included the property in question.Accordingly, a notice in respect of taking physical possession of thesecured asset was served upon the borrowers by the Court appointedreceiver on 13.3.2012.

12. The petitioner herein, while being in possession of the propertyin question, filed Securitization Appeal being 15/2012, under Section 17of the SARFAESI Act impugning the aforesaid notice. The same cameto be dismissed by the DRT vide order dated 30.3.2012. Against the saiddismissal, the petitioner filed an appeal being No. 113/2012 before theDRAT along with an application being I.A. No. 475/2012 seeking interimprotection against the taking of possession of the property in question bythe court receiver. The DRAT vide the impugned order dated 30.7.2012declined interim protection and dismissed the application on the followinggrounds:

(a) Property in question was leased out to the petitioner inviolation of the DRT’s restraint order dated 2.5.2003;

(b) The alleged tenancy of the petitioner does not appear tobe in conformity with the provisions of Section 65A ofthe Transfer of Property Act, 1882 (T.P. Act);

(c) The borrowers, in terms of the compromise entered intowith the respondent No. 1 Bank – had agreed that thebank could take physical possession of the mortgagedproperties, including the property in question.

13. Against the aforesaid dismissal, the petitioner has preferred thepresent writ petition.

14. The primary submission of the learned counsel for the petitioneris that the joint application filed before the DRT itself recorded that therespondent no. 1 bank would be entitled to receive lease rental arising out

421 422 Harsh Vardhan Land Ltd. v. Kotak Mahindra Bank Ltd. (Vipin Sanghi, J.)

the property in question. Having so consented, the respondent no. 1 bankcannot now take a plea that the tenancy in question was in violation ofthe restraint order dated 02.05.2003. It is further submitted that the saidtenancy had been entered into on 19.08.2009, much prior to thecompromise application dated 12.01.2011 moved by the respondent no.1 bank and the borrowers, and as such the respondent no. 1 bank wasaware of the same and had, accordingly, accorded its consent andacceptance. He argues that the only right of the respondent No. 1 Bankis to receive the rent towards satisfaction of the outstands of theborrowers.

15. The learned counsel for the petitioner further submits that theaforesaid tenancy had been executed in the ordinary course of management,vide a registered lease deed, at a monthly rental of Rs. 2 Lacs. Theamount of Rs. 4.5 Crores referred to as security deposit in lease deedhad actually been advanced to the HUF as a loan, vide a separate agreement,which had to be repaid on the expiry of the terms of 36 months. Thesaid loan amount carried an interest of 2.92% to be paid monthly. Thesame, therefore, was not in the nature of a premium and as such thetenancy was not in violation Section 65A of the T.P. Act.

16. Learned counsel also submits that this court itself vide orderdated 09.08.2010 in C.S. (OS) 1690/2010, filed by the petitioner hereinseeking permanent injunction against the borrowers from dispossessingthe petitioner from the property in question, was pleased to grant interimprotection to the petitioner.

17. Per contra, learned senior counsel for the respondent no. 1Bank, Mr. Matta, vehemently opposes the present petition and submitsthat the same deserves to be dismissed at the very threshold. He submitsthat the said tenancy, relied upon by the petitioner, is in utter violationof the restrain order dated 02.05.2003 of the DRT. The same has beenentered into between the petitioner and the HUF in collusion, with a clearfraudulent intent to avoid/defeat the right of the respondent no. 1 bankand siphon the mortgaged property in question, which was also takennote of by this Court in its order dated 10.02.2012 in W.P.(C) No. 7653/2011.

18. It is further submitted that the tenancy in question was not

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order but was also in the teeth of the provisions of Section 65 A of theT.P. Act. Section 65A of the T.P. Act provides for the mortgagor’spower to lease mortgaged property, which is in its lawful possession.The said lease should be such as is in made in the ordinary course ofmanagement of the property concerned and in accordance with any locallaw, custom or usage. While the lease shall reserve the best rent that itcan reasonably obtain, no premium shall be paid or promised and no rentshall be payable in advance under it. The tenancy in question, however,was not on such lines. A perusal of the same, as noted hereinabove,reveals a flow of consideration of Rs. 4.5 Crores, under the guise andgarb of a loan and security deposit, which was much more than theotherwise agreed rental amount. As per the terms of the tenancy and theloan agreement, not only would the said amount fetch a monthly interestof 2.92% to the petitioner but in the event of default of the payment ofthe same, the petitioner would have the right to dispose of the leasedpremises through a public auction and recover the amount. Consideringthe conduct and inability of the borrowers to pay of its principal loans/facilities as noted hereinabove, the terms and conditions of the said leaseand loan agreement, were in effect that of a virtual sale. The said amountwas nothing but a premium paid in respect of the said property and assuch violative of Section 65A of the T.P. Act. Therefore, the protectionof the said provision would not be available to the tenancy in question.

23. The next submission of the petitioner that the compromiseentered into between the borrowers and the respondent bank no. 1 providedfor a deemed approval to the factum of the tenancy in question and assuch cannot be overridden by the mortgage created in favour of therespondent no. 1 bank, also has no merit whatsoever. The saidcompromise, as noted hereinabove, also gave symbolic possession of themortgaged properties to respondent no. 1 bank, with the discretionaryright to the take possession as and when it deemed fit. Even if one wereto accept the plea of the petitioner, that the compromise (decreed by theDRT) accorded a deemed approval to the tenancy in question and ineffect over-rid the earlier restrain order of the DRT, the same wouldhave to be subject and conditional to the aforesaid possessory rights ofthe respondent no. 1 bank’s, which formed a part of the same compromise.The terms of the said compromise have to be read in harmony with each

423 424 Harsh Vardhan Land Ltd. v. Kotak Mahindra Bank Ltd. (Vipin Sanghi, J.)

made in the ordinary course of management of the property, as providedfor in Section 65A of the T.P. Act. Considering the terms and conditionsof the agreements executed between the petitioner and the HUF, thetransaction of Rs. 4.5 Crores, though nomenclatured as a loan, was inthe true sense- a premium paid in respect of the property in question and,thus, the protection of Section 65A is not available to the petitioner.

19. Even otherwise, it is submitted by the learned senior counselthat, in terms of the joint compromise entered into between respondentno. 1 bank and the borrowers, the symbolic possession of the mortgagedproperties already vested with the respondent no. 1 bank and the physicalpossession of the same could be taken by it as per its own discretion andas and when it deemed so fit. The tenancy of the premises havingexpired on 18.09.2012, and the possession being taken over by therespondent no. 1 bank after the passing of the impugned order, thepetitioner herein has no legs to seek any interim protection in respect ofthe property in question.

20. Having heard the counsels for the parties and perused therecord, we find no merit whatsoever in the present petition and areinclined to dismiss the same.

21. As noted hereinabove, the DRT vide order dated 02.05.2003had in clear terms restrained the borrowers from creating any third partyinterest in the mortgaged properties, including the property in question.The said order was never modified or set aside in any proceedingsthereafter. However, despite the same, tenancy with respect to the propertyin question came to be entered into between the petitioner herein and theHUF. This clearly demonstrates the fraudulent conduct, not only of theborrowers, but also of the petitioner who colluded with the borrowers.The collusion becomes even more evident from the nature of transactionentered into by the petitioner with the HUF. It is evident that the saidtransaction is not transaction at arm’s length. The tenancy agreementcannot be looked at in isolation from the loan transaction and the SpecialPower of Attorney which, inter alia, permits the petitioner/lessee to dealwith the property in question and seeks to perpetuate its occupation ofthe property in question even beyond the tenancy period.

22. The said tenancy was not only in utter disregard of the DRT’s

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other and not in contra-distinction. For this reason as well, the saidsubmission of the petitioner also stands rejected.

24. Moreover, the tenancy in question also stands extinguished andpossession restored to the respondent no. 1 bank. In view of the same,nothing survives in the present petition. Grievances, if any, that thepetitioner may have, in view of recovery of possession by the respondentno. 1 bank before the expiry of the tenancy in question, are matterswhich are to be raised in independent appropriate proceedings and canonly be against the HUF. Since the respondent No. 1 Bank has no privityof contract with the petitioner, the petitioner cannot claim any reliefagainst the respondent No. 1 Bank.

25. In view of the aforesaid, the present petition is dismissed withcosts, being the fee incurred by respondent no. 1 bank in engaging ofthe learned senior counsel along with the counsels on record. The sameshould be paid within one week of the memos of fees being filed onrecord with copies to the petitioner.

C.M. No. 12220/2012 (For Stay)

In view of the aforesaid, no orders are called for in this applicationand the same is accordingly dismissed.

ILR (2012) 6 DELHI 426CS (OS)

THE INDIAN PERFORMING RIGHT SOCIETY ….PLAINTIFF

VERSUS

AD VENTURE COMMUNICA TION ….DEFENDANTINDIA PRIVATE LIMITED

(V.K. JAIN, J.)

CS (OS) NO. 2132/2010 & DATE OF DECISION: 25.09.2012IA : 14025/2010 (O.39R.1 & 2 CPC)

Copyright Act, 1957—Section 14, 17 & 33—Plaintiffclaimed to be Society of authors, composers andpublishers of various literacy and musical works andadministered public performances/communication topublic rights under Act—By virtue of reciprocalcontracts with other Societies, plaintiff also claimed tobe vested with public performance rights ofinternational music—Defendant alleged to be involvedin organizing live performances, songs and providingD.JS—Defendant organized live musical event whereinliterary/musical work of plaintiff's society werecommunicated to public without obtaining requisitelicense; thus, plaintiff claimed infringement of copyrightand filed out—Defendant did not contest the suit andwas proceeded ex-parte. Held—Communication of asound recording to the public by owner of therecording does not encroach upon the right of theowner of the underlying literary and musical work toperform the said underline works in the public—Copyright Holder of sound recording does not havecopyrights in live performances but a separate license

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from lyricist and musical composer, as the case maybe is required in case of live performances.

A song comprises three elements lyrics, music and singing.As observed by a Division Bench of this Court in IndianPerforming Rights Society Ltd vs. Aditya Pandey & Ors.,FAO Nos. 423-424-425/2011, decided on 08.05.2012 whena song is recorded there is homogenization of the lyrics withthe musical score; where integration is articulated throughthe multi-level hierarchical system of inter-dependence. Thequestion which came up for consideration before the DivisionBench in the aforesaid case was as to whethercommunication to the public, including by way of broadcastingof a song recording also amounts to a communication to thepublic for literary and musical works embodied in the soundrecording and if so whether a separate licence in respect ofsuch literary and musical work can be asserted by the ownerof copyright in such works, in addition to the licence securedfrom the copyright holder in the sound recording. Thelearned Single Judge from whose order the aforesaid appealarose was of the view that once a licence is obtained fromthe owner or someone authorized to give it, in respect of asound recording, for communication to the public, includingby broadcasting, a separate authorization of licence is notnecessary from the copyright owner or author of the musicalwork and/or literary work. The contention of the appellantIPRS, however, was that in addition to licence from thecopyright holder in the sound recording a separate licencefrom the authors of the literary and musical works comprisedin the song was also required. Noticing that the owner of acopyright in a literary and musical work enjoys the right tocommunicate the said work to the public by way of liveperformance, whereas the owner of copyright and soundrecording does not enjoy similar right to communicate thesound recording to the public by way of live performance,the Division Bench was of the view that communication of asound recording to the public by the owner of the recording

does not encroach upon the right of the owner of theunderlying literary and musical works to perform the saidunderlying works in the public. In nutshell, the view taken bythe Division Bench in this case is that no permission from alyricist and music composer is required if licence is obtainedfrom the copyright owner of the sound recording. It wasfurther held by the Division Bench that copyright holder ofsound recording does not have copyrights in live performance.As a necessary coronary, a separate licence from the lyricistand musical composer as the case may be is required incase of live performance. (Para 7)

Important Issue Involved: Communication of a soundrecording to the public by owner of the recording does notencroach upon the right of the owner of the underlyingliterary and musical work to perform the said underlineworks in the public—Copyright Holder of sound recordingdoes not have copyright in live performances, but a separatelicense from lyricist and musical composer, as the casemay be is required in case of live performance.

[Sh Ka]

APPEARANCES:

FOR THE APPELLANT : Mr. Pravin Anand. Advocates.

FOR THE RESPONDENT : None.

CASES REFERRED TO:

1. Autodesk, Inc. & Another vs. Mr. Prashant Deshmukh &Others: 183(2011) DLT 411.

2. Larsen and Toubro Limited vs. Chagan Bhai Patel MIPR2009 (1) 194.

3. Microsoft Corporation vs. Deepak Raval MIPR 2007 (1)72.

4. Hero Honda Motors Ltd. vs. Shree Assuramji Scooters,2006 (32) PTC 117 (Del).

427 428Indian Performing Right Society v. Ad Venture Comm. India Private Ltd. (V.K. Jain. J.)

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5. Time Incorporated vs. Lokesh Srivastava & Anr., 2005(30) PTC 3 (Del).

RESULT: Suit decreed.

V.K. JAIN, J.

1. The plaintiff before this Court is a society of authors, composersand publishers of various literary and musical works and claims to beadministering public performance/ communication to public rights in termsof Section 14(a)(iii) of the Copyright Act, 1957,which vest in its membersand 200 other sister societies. The societies of authors and composersaffiliated with the plaintiff form part of an International Federation calledCISAC (Confederation Internationale des Societes des Auteurs etCompositeurs). By virtue of reciprocal contracts with other societiessuch as BMI, ASCAP, PRS etc plaintiff also claims to be vested withpublic performance rights of international music. It is also alleged that theauthors, composers and publishers, who are members of the plaintiff,have assigned their public performance rights in respect of their respectiveliterary and/or musical works including future works to the plaintiff. Themusical publishers who are members of the plaintiff are either the firstowners of the copyright as employers under Section 17(c) of the CopyrightAct or they have obtained ownership of copyright by virtue of assignmentin their favour. Even de hors various assignments in its favour, theplaintiff claims to be entitled to sue as a Copyright Society, on behalf ofits members.

2. The defendant is stated to be carrying on business of organizinglive events in various cities in which the music is routinely communicatedto the public as a background score, filler or otherwise. The defendantis also alleged to be involved in commercial activities such as organizinglive performances, songs and providing DJs under whose supervision themusic is performed at functions/ events such as monthly parties, singingreality shows auditions, DJ night at clubs etc. It is alleged that thedefendant organized a live musical event (Raghav Live in Concert) on28.08.2010 wherein literary/ musical work of the plaintiff society werecommunicated to the public without obtaining the requisite license. It isalleged that the defendant got performed musical/ literary works belongingto the members of the plaintiff and its sister societies in the above

referred live concert. It is also the case of the plaintiff that PhonographicPerformance Limited (PPL), which is also a copyright society is entitledto collect license fees from the users of the song recordings, but the liveperformance of musical/ literary work does not involve PPL and a personsinging a song recording for the purpose of public performance musttake license from the plaintiff for public performance of the musicalwork and license from PPL for playing song recording.

A table containing the list of songs alleged to have been performedby the artist Raghav on 28.08.2010 at St. Joseph Ground, M.G. Road,Bangalore, along with details such as the name of the composers, publishersand authors is given below:

S.NO. TITLE COMPOSER AUTHOR ARTISTE PUBLISHER

1. ANGEL COWARD COWARD FAIRWOOD

EYES RICARDO RICARDO MUSIC LTD.

DUNBAR SLY DUNBAR SLY UNIVERSAL

LOWELL LOWELL MUSIC

PUBLISHING

LIMITED(GB)

EVERTON EVERTON UNIVERSAL

BONNER BONNER MUSIC

PUBLISHING

LIMITED(GB)

JOHN JOHN WESTBURY

CHRISTOPHE CHRISTOPHE MUSIC LTD.

TAYLOR TAYLOR

R. TAYLOR R.TAYLOR

LLOYD LLOYD

OLIVER OLIVER

WILLIS WILLIS

MATHUR MATHUR

RAGHAV RAGHAV

2. CAN T DUANE MATHUR

GET MICHAEL RAGHAV RAGHAV SAREGAM A

ENOUGH DYER INDIA LTD.

ONKAR MAJROOH

429 430Indian Performing Right Society v. Ad Venture Comm. India Private Ltd. (V.K. Jain. J.)

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PRASAD SULTANPURI

NAYYAR

MATHUR

RAGHAV

MAJROOH

SULTANPURI

3. LET S JAHAZIEL JAHAZIEL RAGHAV FAMOUS

WORK MICAH BEN MICAH BEN FEAT MUSIC

IT OUT ELLIOT ELLIOT JAHAZIE PUBLISHING

LIMITED

MATHUR MATHUR

RAGHAV RAGHAV

MUSTAQU- MUSTAQU-

DDIN DDIN

SAREGAMA SAREGAMA

4. SO COWARD COWARD 2 PLAY CASAB-

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SED RAGHAV MEDIA PUBL-

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DONALD DONALD

ANTONY ANTONY

CAMPBELL CAMPBELL

MATHUR MATHUR

RAGHAV RAGHAV

5. BAD MATHUR MATHUR BMG ENSIGN

BAD RAGHAV RAGHAV MUSIC

BAD

MUSTAQU- MUSTAQU-

DDIN DDIN

SAREGAMA SAREGAMA

6. NO NO MATHUR MATHUR RAGHAV

RAGHAV RAGHAV

MATHUR MATHUR

NINA NINA

UDDIN UDDIN

MUSHTAQ MUSTAQ

7. SO COWARD COWARDO 2 PLAY CASABL-

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SED RAGHAV MEDIA PUBL-

ISHING IN

DONALD DONALD

ANTONY ANTONY

CAMPBELL CAMPBELL

MATHUR MATHUR

RAGHAV RAGHAV

The case of the plaintiff is that defendant infringed its copyright bycommunicating the above referred works to the public. The plaintiff hasaccordingly sought an injunction restraining the defendant from organizingthe events including communicating plaintiff’s repertoire of musical worksadministered to the public without obtaining license from it or doing anyother act infringing its copyright. The plaintiff has also sought renditionof account and damages.

3. The defendant was proceeded ex parte vide order dated31.05.2011. Ex parte evidence of the plaintiff has been recorded onaffidavits.

4. Section 33 of the Copyright Act, 1957 empowers the CentralGovernment to register an association of persons fulfilling the prescribedconditions to do business of issuing or granting licenses in respect of anywork for which the Copyright subsists or in respect of any other rightconferred by the Act, in accordance with the registration granted to suchan association. Ordinarily, the Central Government is to register only onecopyright society to do business in respect of the same class of work.Section 34 of the Act provides that a copyright society may accept froman owner of rights, exclusive authorization to administer any right in anywork by issue of licenses or collection of license fees or both. It is alsopermissible for a copyright society to enter into an agreement with aforeign society or organization administering rights corresponding to therights under the Act and to entrust to such foreign society or organization,the administration in any foreign country, of rights administered by the

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said copyright society in India, or for administering in India the rightsadministered in a foreign country by such foreign society or organization.A copyright society can issue license under Section 30 of the Act, collectfees and distribute such fee among the owners of right after deductingits own expenses.

5. Ex.PW1/4 is the certificate of registration granted to the plaintiffunder Section 33(3) of Copyright Act, 1957, whereby it was permittedto commence and carry on the copyright business in musical works andany words or any action intended to be sung, spoken or performed withthe music. In its affidavit by way of evidence Mr. Hassan Kamal, Chairmanof the plaintiff society has stated that the plaintiff administers relevantrights in India on behalf of the members of about 200 sister societiesfrom different countries. Ex.PW1/5 is the list of such sister societies.Ex.PW1/6, PW1/7, PW1/8 are the agreements of the plaintiff with threesuch societies namely BMI, PRS and ASCAP respectively.

The list of members of the plaintiff society is Ex.PW1/9 and theyare stated to be authors, composers and publishers of Indian literary andmusical works. The tariff fixed by the plaintiff society is Ex.PW1/11.

6. Ex.PW1/13 (Colly) is the printout from the website of the defendantnamely http://adventurehouse.co.in. which shows that the defendant isengaged in the business of organizing events and promotions and theservices offered by the defendant including club gigs, concert, collegefests and off sites.

Ex.PW1/14 (Colly) is the printout from the internet which showsthat defendant proposed to organize ‘Raghav Mathur Live Concert’ at St.Joseph’s Grounds in Bengaluru on August 28, 2010. The tickets of theshow were priced at Rs.500/- and Rs.800/-.

7. A song comprises three elements lyrics, music and singing. Asobserved by a Division Bench of this Court in Indian Performing RightsSociety Ltd vs. Aditya Pandey & Ors., FAO Nos. 423-424-425/2011,decided on 08.05.2012 when a song is recorded there is homogenizationof the lyrics with the musical score; where integration is articulatedthrough the multi-level hierarchical system of inter-dependence. Thequestion which came up for consideration before the Division Bench in

the aforesaid case was as to whether communication to the public,including by way of broadcasting of a song recording also amounts toa communication to the public for literary and musical works embodiedin the sound recording and if so whether a separate licence in respect ofsuch literary and musical work can be asserted by the owner of copyrightin such works, in addition to the licence secured from the copyrightholder in the sound recording. The learned Single Judge from whoseorder the aforesaid appeal arose was of the view that once a licence isobtained from the owner or someone authorized to give it, in respect ofa sound recording, for communication to the public, including bybroadcasting, a separate authorization of licence is not necessary fromthe copyright owner or author of the musical work and/or literary work.The contention of the appellant IPRS, however, was that in addition tolicence from the copyright holder in the sound recording a separatelicence from the authors of the literary and musical works comprised inthe song was also required. Noticing that the owner of a copyright in aliterary and musical work enjoys the right to communicate the said workto the public by way of live performance, whereas the owner of copyrightand sound recording does not enjoy similar right to communicate thesound recording to the public by way of live performance, the DivisionBench was of the view that communication of a sound recording to thepublic by the owner of the recording does not encroach upon the rightof the owner of the underlying literary and musical works to perform thesaid underlying works in the public. In nutshell, the view taken by theDivision Bench in this case is that no permission from a lyricist andmusic composer is required if licence is obtained from the copyrightowner of the sound recording. It was further held by the Division Benchthat copyright holder of sound recording does not have copyrights in liveperformance. As a necessary coronary, a separate licence from the lyricistand musical composer as the case may be is required in case of liveperformance.

8. The affidavits filed by Mr Hassan Kamal of the plaintiff-companyshow that the songs which were sung live by Mr Raghav to a liveaudience on 28.08.2010, included the works titled Angel Eyes, Can’t GetEnough, Let’s Work it Out, So Confused, Bad Bad Bad and No No. TheInlay Card Ex.PW-1/22 would show that the song Angel Eye is authored

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by four persons, namely, Dunbar Sly Lowell , Everton Bonner, LloydOliver Willis, John Christopher Taylor and has music scores from DunbarSly Lowell, Everton Bonner , Lloyd Oliver Willis, John Christopher Taylor.The Inlay Card further shows that the song Can.t Get Enough waswritten by and has music by three persons, namely Duane Michael Dyer,Onkar Prasad Nayyar and Majrooh Sultanpuri. Ex.PW-1/23 is theAssignment Deed, whereby Dunbar Sly assigned his rights in the songand the music to a society called Performing Right Society (PRS). EvertonBonner, Lloyd Oliver Willis also assigned their respective rights in thesong and the music to the same society vide Assignment Deeds Ex.PW-1/24 and PW-1/25 respectively. Duane Michael Dyer and Onkar PrasadNayyar assigned their rights in the song and the music of the song Can.tGet Enough to PRS and another society, IPRS vide Assignment DeedsEx.PW-1/27 and Ex.PW-1/10 respectively. Majrooh Sultanpuri assignedhis rights to the society-IPRS vide Assignment Deed Ex.PW-1/10 (Colly).

9. A perusal of Assignment Deed Ex.PW-1/23 executed by LowellDunbar in favour of PRS would show that the assigner assigned to PRS,all the performing rights and the film synchronization right to the extentprescribed in Article 7 (c) (iii) of the Articles of Association of thesociety. It further shows that the expression “musical work” used in theAssignment Deed means any musical work whether existing at that timeor to be composed thereafter and such words if any as are associatedwith any musical work. The society was assigned all the rights mentionedin the deed in the musical work which belonged to the assignor as alsothe work which were to be thereafter acquired by or were to becomevested in the assignor during continuance of his membership of thesociety. Similar is the Assignment Deeds Ex.PW-1/24 executed by EvertonBonner and deed Ex.PW-1/25 by Lloyd Oliver Willis in favour of PRS.

10. A perusal of Ex.PW-1/27 which is the agreement betweenDuane Michael Dyer and PRS would show that Mr. Dyer has granted toPRS the right to licence non-remedic public performances of each musicalwork of which he is a copyright proprietor or which he either alone orjointly or in collaboration with others wrote, composed, published, acquiredor owned or in which he had any right, title, interest or control or whichthereafter was to be written, composed, acquired, owned, published orcopyrighted by him alone, jointly or in collaboration with others or in

which thereafter he was to have any right or interest or control in wholeor in part.

A perusal of the agreement between Onkar Prasad Nayar and IPRSwould show that Mr Nayar assigned to IPRS, all musical works and allperforming rights and mechanical rights which belonged to him or whichwere to be thereafter acquired by or become vested in him. The expression“performing right” has been defined in the agreement to mean and includethe right of performing in public, broadcasting and causing to betransmitted to subscribers to a diffusion service, in all parts of the world,by any means or in any manner, all musical works and the right ofauthorizing any of the said acts. Identical is the agreement Ex.PW-1/10(Colly) between IPRS and Majrooh Sultanpuri.

11. Affidavit of Mr K.M. Nanjundaswamy shows that the live musicconcert titled “RAGHAV LIVE IN CONCERT” held at St. Joseph Groundon 28.08.2010 was attended by him. He made recording of theperformance using NOKIA Express Music-5130c and saved the same tothe hard disk of his personal computer which belongs to the plaintiffsociety and thereafter transferred the said recording on a compact disk.The said video has also been downloaded on the instructions of ShriHassan Kamal and is Ex.PW-1/21. The plaintiff-society has thus beenable to establish that live performance of various works, including AngelEye and Can.t Get Enough were undertaken by Mr Raghav at Bangaloreon 28.08.2010. Being a live performance of the aforesaid works,permission from the author and composer was necessarily required beforeundertaking any such performance. Since the rights which the authorand composer of the songs “Angel Eyes and Can’t Get Enough” had inthese works been assigned by them to PRS/IPRS, the requisite permission/licence in this regard could have been granted only by the above-referredsocieties. Ex.PW-1/8 is the agreement, between PRS and the plaintiff-society.

12. A perusal of clause 1.1 would show that subject to exceptionsand reservations set out in clauses 2 and 2A and to the provisions ofclauses 8 and 8A, PRS and IPRS each granted to the other non-exclusivelicence and authority to exercise and enforce the performing rights in therepertoire within the territory in accordance with the provisions of the

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agreement. The rights, so granted, to each other include the right to grantlicence in respect of other’s performing rights to persons requiring suchlicences. These rights include the right to collect royalties from licenceesin consideration of the grants of such licences and to institute and prosecuteproceedings against persons infringing the performing rights and to collectdamages or compensation for the unauthorized doing of any part of theperforming right. The rights granted to the plaintiff-society expresslyinclude a right to bring an action in accordance with chapter XII andXIII of Copyright Act, 1957 for infringement of PRS’s copyright inrespect of doing or authorizing the doing of any act restricted by theperforming rights in the repertoire for which IPRS has granted licenceto PRS under the agreement. This power expressly includes the powerto institute legal proceedings, sign and verify pleadings and appoint legalcounsels before the Indian Courts. The exceptions and reservationsmentioned in Clause 2 and 2A are not relevant for the purpose of this suitand, therefore, need not be discussed. The copyright of Dunbar Sly,Everton Bonner, Oliver Willis in the song Angel Eyes and the rights ofDuane Michael Dyer in the song Can’t Get Enough stood transferred toPRS and by virtue of the agreement between PRS and IPRS, the plaintiffhas the legal right to grant licence for live performance, involving theaforesaid works. Therefore, the defendant infringed the copyright whichthe plaintiff holds and is entitled to enforce in respect of the work AngelEyes and Can.t Get Enough. As regards the rights of Onkar PrasadNayar in the song Can.t Get Enough, the same stands assigned directlyto the plaintiff-society vide Assignment Deeds Ex.PW-1/10 (Colly) andthe plaintiff-society, therefore, is competent to grant licence in respect oflive performance of the aforesaid work and is also competent to executelegal proceedings in case of infringement of the aforesaid work by thedefendant.

13. For the reasons stated hereinabove, the plaintiff is entitled to aninjunction, restraining the defendant from organizing events, involvinglive performance in respect of the lyrics(s), musical score(s) copyrightin which are held by the plaintiff-company. It shall be obligatory for thedefendant to ensure that no copyright of the plaintiff-company is infringedin any event organized by it by way of live performance.

14. Coming to damages, I find that no specific amount by way of

damages has been claimed by the plaintiff though it has sought renditionof accounts in respect of profits unlawfully earned by the defendant byinfringing plaintiff’s repertoire. A specific prayer has also been made foraward of damages to the plaintiff-company, though without specifyingthe amount sought by way of damages. In my view, considering theprayer made in the suit, punitive damages can be awarded to the plaintiff,subject to, of course, payment of requisite Court fee, despite no specificamount having been claimed by way of damages.

The question of granting damages in such cases came to beconsidered by me in Autodesk, Inc. & Another v. Mr. PrashantDeshmukh & Others: 183(2011) DLT 411 and the following view wastaken:

“Regarding punitive damages in the case of Time Incorporatedv. Lokesh Srivastava & Anr., 2005 (30) PTC 3 (Del), thisCourt observed that punitive damages are founded on thephilosophy of corrective justice and as such, in appropriate casesthese must be awarded to give a signal to the wrong doers thatthe law does not take a breach merely as a matter between rivalparties but feels concerned about those also who are not partyto the lis but suffer on account of the breach. In the case ofHero Honda Motors Ltd. v. Shree Assuramji Scooters, 2006(32) PTC 117 (Del), this Court noticing that the defendant hadchosen to stay away from the proceedings of the Court felt thatin such case punitive damages need to be awarded, sinceotherwise the defendant, who appears in the Court and submitsits account books would be liable for damages whereas a partywhich chooses to stay away from the Court proceedings wouldescape the liability on account of the failure of the availability ofaccount books.

In Microsoft Corporation v. Deepak Raval MIPR 2007 (1)72, this Court observed that in our country the Courts are becomingsensitive to the growing menace of piracy and have startedgranting punitive damages even in cases where due to absenceof defendant, the exact figures of sale made by them under theinfringing copyright and/or trademark, exact damages are not

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available. The justification given by the Court for award ofcompulsory damages was to make up for the loss suffered bythe plaintiff and deter a wrong doer and like-minded from indulgingin such unlawful activities.

In Larsen and Toubro Limited v. Chagan Bhai Patel MIPR2009 (1) 194, this Court observed that it would be encouragingthe violators of intellectual property, if the defendantsnotwithstanding having not contested the suit are not burdenedwith punitive damages.

Also, the Court needs to take note of the fact that a lot of energyand resources are spent in litigating against those who infringethe trademark and copyright of others and try to encash uponthe goodwill and reputation of other brands by passing of theirgoods and/or services as those of that well known brand. Ifpunitive damages are not awarded in such cases, it would onlyencourage unscrupulous persons who actuated by dishonestintention, in the case of a trademark use the well-reputedtrademark of another person, so as to encash on the goodwilland reputation which that mark enjoys in the market, withimpunity or in the case of a software use the pirated softwarethereby depriving the copyright owner of the revenue to whichhe is entitled by sale of licence to use that software and thenavoid payment of damages by remaining absent from the Court,thereby depriving the plaintiff an opportunity to establish actualprofit earned by him from use of the infringing mark/piratedsoftware, which, if he is using the infringing mark/pirated softwarefor business purposes, can be computed only on the basis of hisaccount books. This would, therefore, amount to putting premiumon dishonesty and give an unfair advantage to an unscrupulousinfringer over those who have a bona fide defence to make andtherefore come forward to contest the suit and place their casebefore the Court.”

15. In the case before this Court, the defendant has sold ticket ofthe event in which Raghav performed for Rs 500 each. Thus, theyexploited the work in which copyright is held by the plaintiff, for their

commercial advantage and to the detriment of the authors and composersof the works. As far as grant of damages is concerned, the live performancein an event organized on a commercial basis by selling tickets needs tobe treated differently from the live performance say in a family function.A soft view, while awarding damages against a person infringing copyrightsof the others to earn unlawful profits, by organizing live events, wouldbe wholly misplaced and uncalled for. If the damages awarded againstsuch persons are token in nature and do not pinch the infringer thatwould only encourage the infringer to repeat such acts in future at thecost of some other copyright holder.

16. For the reasons stated hereinabove, the defendant is restrainedfrom organizing any event involving live performance in respect of thelyrics(s), musical score(s) copyright in which are held by the plaintiff-company. It shall be obligatory for the defendant to ensure that nocopyright of the plaintiff-company is infringed in any event organized byit. The defendant is also directed to pay Rs 5 lakh by way of punitivedamages to the plaintiff. If the damages are not paid within four weeks,interest on the amount of damages would be payable at the rate of 6%per annum from the date of decree till realization of the amount.

Decree sheet be drawn accordingly.

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Indian Law Reports (Delhi) ILR (2012) 6 Delhi441 442 Amarjeet Singh v. Management of National Thermal Power Corpn. Ltd. (D. Murugesan, CJ.)

ILR (2012) 6 DELHI 441W.P. (C)

AMARJEET SINGH ….PETITIONER

VERSUS

THE MANAGEMENT OF NATIONAL ….RESPONDENTTHERMAL POWER CORPORATION LTD.

(D. MURUGESAN, CJ. & RAJIV SAHAI ENDLA W, J.)

W.P. (C) NO. : 2836/2000 DATE OF DECISION: 11.10.2012

Service Law—Constitution of India, 1950—Article 14—Notice issued to petitioner asking too show cause hishabitual absence—Petitioner did not dispute hisabsence as detailed in show cause notice, but merelypleaded that he had been taking leave explaining hisdomestic problems and said leave was approvedwithout pay and ought not be treated unauthorizedabsence—Another notice issued by respondent topetitioner to show cause as to why he should not bedeemed to have voluntarily absented himself fromwork since month of October, 2007 when his leavehad never been approved as claimed by him in earlierreply—Petitioner submitted a reply to said show causenotice stating that leave was taken verbally; he hadapplied for regularization of his absence in terms ofcirculars of year, 1997-1998 of respondent and he wasnot allowed to sign attendance register for last 20months and denied he had been absenting fromOctober, 1997—Respondent vide impugned order heldpetitioner to have voluntarily left services withinmeaning of Rule 24.96—Order of terminationchallenged before High Court—Plea taken, Ruleaforesaid is violative of Article 14 of Constitution ofIndia as it empowers respondent Corporation toterminate service of employee without giving any

chargesheet or opportunity of being heard and withoutholding any enquiry resulting in violation of principlesof natural justice and order of termination alsochallenged on merits—Held—In so far challenge toRule 24.9 of NTPC services Rules is concerned, validityof said Rule was upheld by judgment of DivisionBench—Regularisation of leave vide circulars of year,1997-1998 was at best till issuance thereof—Even if itwere to be held that unauthorized absence ofpetitioner till end of April, 1998 stood regularized,second show cause notice was issued after one yearand appellant has been unable to show any applicationfor leave or sanction thereof for said one year—It isinconceivable that employee who though working, isnot being permitted to mark this attendance for oneyear, would not take up matter—Neither any plea hasbeen raised regarding proof of petitioner havingworked during said time nor counsel has anyknowledge—Petitioner has also not collected his payfrom month of October, 1997 onwards and no demandthereof was made—There is no perversity inapplication of Rule 24.9 qua petitioner and in deemingpetitioner to have abandoned his employment byremaining unauthorizedly absent from duty for morethan consecutives 90 days.

Important Issue Involved: It is inconceivable that anemployee who though working, is not being permitted tomark his attendance, would not take up the matter.

[Ar Bh]

APPEARANCES:

FOR THE PETITIONER : Mr. H.K. Chaturvedi & Ms. AnjaliChaturvedi, Advs.

FOR THE RESPONDENT : Mr. S.K. Taneja, Sr. Adv. With Mr.Rajesh Gupta, Mr. Puneet Taneja &Mr. Anand Kumar Singh, Advs.

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holding any inquiry resulting in violation of principles of natural justiceand secondly on the merits of the order of termination

3. Insofar as challenge to Rule 24.9 of the NTPC Service Rules isconcerned, we need not to trouble ourselves for the simple reason thatthe validity of the said Rule came up for consideration before a DivisionBench of this Court in W.P.(C) No.762/2011 titled Surendra KumarTiwari Vs. National Thermal Power Corporation Ltd. and after referringto various judgments of this Court as well as the Apex Court, the validityof said Rule was upheld in the judgment dated 1st June, 2012. In viewof the said law, the issue of challenge to the said Rule is res integra.Accordingly, the challenge must be negatived. 4. As far as the merits ofthe order of the termination are concerned, it is not controverted that ashow cause notice dated 11th /15th September, 1997 was issued by therespondent to the petitioner asking the petitioner to show cause for hishabitual absence as under:

“Month Total Number of Days Period of Absence

September, 1996 30 13October, 1996 31 16November, 1996 30 10December, 1996 31 19January, 1997 31 20February, 1997 28 15March, 1997 31 22April, 1997 30 15May, 1997 31 22June, 1997 30 18July, 1997 31 24August, 1997 31 25

Total 365 219”

Significantly the petitioner in his reply dated 26th September, 1997did not dispute his absence as detailed in the show cause notice butmerely pleaded that he had been taking leave explaining his domesticproblems and the said leave was approved as leave without pay andought not to be treated as unauthorized absence.

5. It is also not controverted that another notice dated 26th /27thApril, 1999 was issued by the respondent to the petitioner to show cause

CASE REFERRED TO:

1. Surendra Kumar Tiwari vs. National Thermal PowerCorporation Ltd. W.P.(C) No.762/2011.

RESULT: Dismissed.

D. MURUGESAN, CJ.

1. The petitioner was an Assistant Controller (Grade-I) in therespondent National Thermal Power Corporation Ltd. (Corporation). Hehas questioned the order of termination dated 18.10.1999 passed by therespondent Corporation in exercise of powers under Rule 24.9 of theNTPC Service Rules applicable to the petitioner. The said Rule is asunder:

“24.9. Termination on account of unauthorized absence:

An employee who remains unauthorizedly absent from duty orplace of work either without sanction of any leave or afterexpiry of sanctioned leave, if any, and does not report for dutyfor any reason whatsoever within 90 (ninety) consecutive daysfrom the date of his/her unauthorized absence, shall automaticallylose lien on his/her post and he/she shall be deemed to havevoluntarily abandoned and left the service of the Corporation,without notice.

Provided, however, if the employee subsequently substantiatesand accounts for his/her unauthorized absence from duty within90(ninety) consecutive days from the date of the terminationorder to the entire satisfaction of the Management, theManagement may regularize his/her period of unauthorized absenceon such terms and conditions as it may deem fit and proper.”

Unauthorized absence is defined in Rule 2(s) as under -

“2 (s) “Unauthorized Absence” means absence by an employeefrom his/her duty or place of work without authority eitherwithout sanction of any leave or after expiry of sanctioned leave,if any.”

2. The petitioner has challenged the order of termination on twogrounds. Firstly, it is contended that the Rule aforesaid is violative ofArticle 14 of the Constitution of India inasmuch as it empowers therespondent Corporation to terminate the service of an employee withoutgiving any chargesheet or any opportunity of being heard and without

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as to why he should not be deemed to have voluntarily absented himselffrom work since the month of October, 1997, when his leave had neverbeen approved as claimed by him in his earlier reply. The details ofunauthorized absence since 1992 set out in the said show cause noticewere as under:

“Year No. of No. of closed Total absenceUnauthorized Days

Days1992 124 66 1901993 246 66 3121994 188 66 2541995 178 66 2441996 181 66 2471997 256 66 3221998 299 66 3651999 83 17 100(upto10.4.99)

Total 1555 462 2017”

6. The petitioner submitted a reply dated 13th May, 1999 to the saidshow cause notice, stating, that leave were taken verbally; that he hadapplied for regularization of his absence in terms of Circulars dated 7thOctober, 1997 and 7th /15th April, 1998 of the respondent; that he wasnot allowed to sign the attendance register for the last 20 months anddenying that he had been absent from 1st October, 1997.

7. The respondent however, vide order dated 18th October, 1999(supra) held the petitioner to have voluntarily left the service within themeaning of Rule 24.9 (supra). In the said order it was also observed thatthe occasion for the petitioner being not permitted to sign the attendanceregister did not arise as the same was always kept in the Section witheveryone free to mark the attendance till 9.00 a.m. in the morning;thereafter the register was kept in the room of the Senior Manager sothat he could supervise the late comers and the petitioner had neverreported for signing the register.

8. The counsel for the petitioner has at the outset relied on theCirculars dated 7th October, 1997 and 7th /15th April, 1998 issued bythe respondent giving opportunity to employees to get their unauthorizedabsence regularized. We however do not deem the necessity to go into

the said plea inasmuch as the regularization vide the said Circulars wasat best till the issuance thereof. Even if it were to be held that theunauthorized absence of the petitioner till the end of April, 1998 stoodregularized, the second show cause notice was issued only on 26th /27thApril, 1999 i.e. after one year and claiming the appellant to have remainedunauthorizedly absent during the said time. The appellant has been unableto show any application for leave or sanction thereof for the said oneyear. Though he claimed that he was not being permitted to mark hisattendance but it is inconceivable that an employee who though working,is not being permitted to mark his attendance for one year, would nottake up the matter. We have during the hearing inquired from the counselfor the petitioner that if the petitioner, though was not being permittedto mark his attendance, was during the said time attending office, therewould certainly be proof of his having worked during the said time.Neither any plea has been raised in this regard nor does the counsel hasany knowledge. The petitioner is stated to be not present in the Courttoday also. On the contrary the counsel for the respondents has statedthat the petitioner has not collected his pay also from the month ofOctober, 1997 onwards and no demand therefor was made. On thecomments of the petitioner being solicited to the said argument, thecounsel for the petitioner again expresses ignorance in this regard. Ratherthe counsel for the respondent has stated that the inquiries have revealedthat the petitioner has a lucrative business and is thus not interested inthe employment.

9. We are satisfied that there is no perversity in the application ofRule 24.9 (supra) qua the petitioner and in deeming the petitioner to haveabandoned his employment by remaining unauthorizedly absent from dutyfor more than consecutive 90 days and no case for judicial review ismade out.

10. There is thus no merit in the petition and the same is dismissed.We refrain from imposing any costs on the petitioner.