[Dr. Ashok Dhamija]

Yes, you should file the statement of defence to the arbitrator, if necessary, with a request to condone the delay, if any, if the arbitration proceedings are still not over.

It may be pointed out that under the provisions of the Arbitration and Conciliation Act, the arbitral tribunal is not bound by the Civil Procedure Code and the Evidence Act. Parties are free to agree to the procedure to be adopted; failing which the arbitral tribunal has the freedom to conduct the proceedings in the manner deemed appropriate by it. Further, the Supreme Court has held that the principles of natural justice apply to such proceedings. This implies that a reasonable opportunity of being heard has to be given to each party.

Therefore, it you were prevented by a genuine reason from submitting your statement of defence in time and if the arbitration proceedings are still going on, you may submit your defence with a request to condone the delay, if any. The arbitral tribunal, as mentioned above, has sufficient powers to appropriately adopt a procedure that is just and fair in the circumstances of the case, and to comply with the principles of natural justice.

I may also point out that if an arbitral award is passed without hearing you, then under the provisions of Section 34 of the said Act, an application to set aside the arbitral award can be filed before the competent court, inter alia, on the grounds that a party was unable to present its case, or a party was under some incapacity, or the party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings.

Please note that Section 5 of the said Act forbids judicial intervention in arbitration matters except as provided under the Act. Therefore, it would be advisable to make use of whatever opportunity is available during the arbitration proceedings.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Once the FIR is registered and investigation started by police, even though under the directions of the court under Section 156(3) of Criminal Procedure Code, it is the legal responsibility of the police to complete the investigation in accordance with law. Police cannot take it lightly. On completion of investigation, police is required to submit a report to the court, and if the report is not satisfactory, you can file your objections to that. If the court is satisfied with the investigation of the police recommending closure of the case, then only the court will close it. Otherwise, there can either be further investigation or the court can directly take cognizance of the offence even if the police did not find any evidence in support of the offence.

Therefore, you must have some patience. Meanwhile, give whatever relevant evidence you have, to the police during the investigation process. Cooperate with the police during investigation. And, still if you are not satisfied with the report submitted by police to the court on completion of investigation, file your objections thereto and point out the defects to the court, and then let the court decide on those issues. In fact, you can even file a revision petition before the next higher court against the decision of the court on the police report, if you are not satisfied with the decision of the court.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The original document, when produced in court during evidence, is primary evidence. On the other hand, a photocopy or a Xerox copy of a document, when produced in court, is called secondary evidence.

Now, as per the provisions of the Evidence Act, a document is required to be proved by adducing the primary evidence.

Secondary evidence can be produced only in certain circumstances mentioned in the Evidence Act. For example, when the original document is in the possession of the opponent party, or if it is lost or destroyed, etc. And, then, even in such circumstances, there are certain preconditions subject to which only the secondary evidence can be produced. For example, if the original is in the possession of the opponent party, a notice is first required to be given to that party to produce the original, and if he fails to do so, then only secondary evidence can be produced. If the original has been lost or destroyed, then you have to first adduce evidence of its having been lost or destroyed, and thereafter only the secondary evidence (in the form of a photocopy, for example) should be given in court.

Therefore, you must produce the original documents to prove your case. If you produce only the photocopies of the documents in the court, without complying with the requirements in which only the secondary evidence can be produced, your evidence may be rejected by the court since then such secondary evidence becomes inadmissible in court.

So, try hard to trace the original postal receipt and the original AD card. If possible, obtain information from the post department. If you fail in this, then only submit the photocopies, but after following the procedure as to why can’t produce the original.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Once the FIR has been registered by police, it cannot be changed or modified. FIR is not supposed to be an encyclopaedia. It is the first information to the police informing them about the commission of a cognizable offence, and to set the law in motion. Every detail of the offence need not be mentioned in it, though the material information about the offence may be there.

Therefore, if you as a complainant forgot to include any particular information in the FIR lodged by you with the police, you can provide such further information to the police during investigation, such as, as a part of your statement under Section 161 Cr.P.C. However, it may not be possible to amend the FIR after it has been registered by police.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The procedure for changing your advocate is quite simple. You should obtain no-objection (NOC) from the existing advocate (he may insist for payment of remaining professional fee, if any, as may have been agreed to) and then engage a new advocate. Sign a new vakalatnama for the new advocate; in fact, normally, the no-objection of the existing advocate is taken as an endorsement from the existing advocate on this new vakalatnama itself. Thereafter, file this new vakalatnama in the court, which in fact your new advocate would do.

Now, if your existing advocate refuses to give you the no-objection for engaging a new advocate, then also you can change the advocate but by taking permission of the court. There are rules in Bombay high court in this regard.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

In such situation, where you have reasons to believe that the judge is not impartial or is biased, etc., while dealing with your case, you may make an application before the District Judge (if it is a civil case) or before the Sessions Judge (if it is a criminal case) for transferring your case from that judge to another judge under him, who may be competent to handle the case. The Civil Procedure Code and the Criminal Procedure Code, both have sufficient provisions for such transfer powers in civil cases and criminal cases, respectively.

Moreover, if you have full proof of the bias and/or corruption of the judge concerned, you may also file a complaint with the high court (may be, perhaps with the vigilance wing of the high court, please check in your state).

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The main issue in the case of disproportionate assets is that all the “known sources of income” [as defined in Explanation to Section 13(1)(e) of the Prevention of Corruption Act, 1988] and all “expenses” should be properly accounted for while computing the disproportionate assets.

So, if gross salary is to be considered as income of the public servant, then all the deductions from such salary (such as GPF, Income Tax, etc.) should be separately shown as expenses. So, the resulting effect would be that only the net income would come into calculation.

On the other hand, if the net salary (after accounting for the deductions) is considered as the income of the public servant, then such deductions cannot be shown separately as expenses, since they have already been considered once while calculating the net salary which was considered as income. In such a scenario, showing expenses separately also, would amount to double calculation of the expenses, which would be unjust and impermissible, since that would be unfair to the public servant who is accused of such an offence.

In my view, the first option is the better way, i.e., to take gross salary as income of the public servant, but then showing all the deductions from salary as expenses separately. This is a more transparent method of accounting for the deductions in the computations for finding out the disproportionate assets of the public servant.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Yes, on many occasions, the whole or part of the fine amount imposed on accused in a cheque bounce under Section 138 of the Negotiable Instruments Act is awarded to the complainant to compensate him for the cheque amount.

There is a specific provision in the Criminal Procedure Code that when a Court imposes a sentence of fine, the Court may order the whole or any part of the fine recovered to be applied, inter alia, in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court.

So, whole or part of the fine amount imposed on accused in cheque bounce is generally paid as compensation the complainant for the cheque amount. It generally also obviates the need for filing a civil suit by the complainant for recovery of such amount.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Yes. An old stamp paper can be used for executing new documents. There is no expiry date for a stamp paper if it is otherwise a valid stamp paper. The six months limit on stamp paper is only for the purpose of claiming a refund from the Government if it is unused for that period. But, for using an old stamp paper in a document, there is no such limit of 6 months or any other time limit.

This issue has been explained by the Supreme Court in the case of Thiruvengadam Pillai v. Navaneethammal, (2008) 4 SCC 530, wherein it was held that:

“The Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in Section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.”

“The fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement. But that cannot be a clinching evidence. There is also a possibility that a layman unfamiliar with legal provisions relating to stamps, may bona fide think that he could use the old unused stamp papers lying with him for preparation of the document and accordingly use the old stamp papers.”

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

There are two situations in which the question needs to be answered separately.

Firstly, it may be remembered that under Section 438 of the Cr.P.C., anticipatory bail can be granted by the Sessions Court as well as by the High Court. Such an application can be made before either of these courts. They have concurrent jurisdiction. Now, suppose the first anticipatory bail application was rejected by the Sessions Court, then definitely the second anticipatory bail can be filed before the high court.

Secondly, now suppose the anticipatory bail application was rejected by say high court, then whether a second anticipatory bail application can be filed before the same high court? Or, if such application was first rejected by the Sessions Court, can a second such application be filed before the same Sessions Court? This is slightly different question.

However, even in the second situation, a Full Bench of the Rajasthan high court [Ganesh Raj v. State of Rajasthan, 2005 Cri LJ 2086 (FB)] has held that a second anticipatory bail application can be filed in the following circumstances:

“…second or subsequent bail application under Section 438 Cr.P.C. can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of the accused.”

In a recent case before the Supreme Court in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501, the appellants had moved an application under Section 438 Cr.P.C. for grant of anticipatory bail which was dismissed by Sixth Additional Sessions Judge. Thereafter, appellants after expiry of three weeks filed second application under Section 438 Cr.P.C. Fourth Additional Sessions Judge allowed the same. The high court set aside the order of anticipatory bail. In this case, the Supreme Court observed that the Judge, who has declined to entertain the prayer for grant of bail, if available, should hear the second bail application or the successive bail applications. It is in consonance with the principle of judicial decorum, discipline and propriety. Needless to say, unless such principle is adhered to, there is enormous possibility of forum-shopping which has no sanction in law and definitely, has no sanctity. If the same is allowed to prevail, it is likely to usher in anarchy, whim and caprice and in the ultimate eventuate shake the faith in the adjudicating system. This cannot be allowed to be encouraged. The Supreme Court held that when the Sixth Additional Sessions Judge had declined to grant the bail application, the next Fourth Additional Sessions Judge should have been well advised to place the matter before the same Judge. In view of these, the Supreme Court concurred with the reasoning given by the High Court, but in the facts and circumstances of the case, it set aside the direction cancelling the order of anticipatory bail. Thus, from the observations of the Supreme Court, it clearly appears that a second anticipatory bail application can be filed, though it has observed that such second application should be handled by the same judge who had rejected it on the first occasion.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

No. It is not applicable in such case. GST is exempted on an educational institution (whether run by a charitable institution or otherwise) for providing education to its students. This exemption is specifically covered in the list of exemptions approved by the GST Council in its meeting dated 19 May 2017.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

It actually depends on the contents of the power of attorney. If it is a general power of attorney in respect of that property, then the POA holder is legally empowered to sign the leave and licence agreement to give the property on rent.

If the power of attorney is only for some specific purpose, then one has to see whether such specific purpose includes giving of such property on leave and licence basis. For example, if a specific power of attorney is given only for the purpose of selling the property (house), then the POA holder may not have the authority to give that house on leave and licence basis since his authority is limited only to sell the property.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The original documents that are taken by the Government at the time of initial appointment, are returned after verification. So, if you request the Government, such original documents would be returned to you.

The only exception perhaps can be where the Government suspects that these original documents are forged or fake documents, in which case the original documents may be required for the purpose of further investigation and necessary action as per law. In fact, you have mentioned that you have been dismissed from the service, but you have not clarified on what grounds you were dismissed from service by the Government. Was this dismissal on account of any forged documents submitted by you? If yes, then such original documents may not perhaps be returned to you since they may be needed for further investigation.

If this is not the case, then generally speaking, the Government would return your original documents on your request, if it has not done so already.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Section 24 and 25 of the Hindu Marriage Act relate to interim maintenance (during pendency of the proceedings) and permanent alimony and maintenance, respectively. Both these sections basically speak about grant of such maintenance, etc., on application made to the court by wife or husband. Moreover, these sections also require that the income, etc., of the parties is to be taken into consideration.

In your case, you have mentioned that your wife is earning and she has herself said that she does not want any maintenance or alimony. In these circumstances, as she herself does not want maintenance, alimony, etc., and she is employed also, there is no reason for the court to grant her any maintenance or alimony.

In any case, since both of you have agreed to take divorce, it would naturally be a mutual consent divorce. So, as per your compromise, both of you can decide the terms and conditions for such compromise and you may clearly mention therein that no maintenance or alimony would be paid to the wife. In a mutual consent divorce case, the court will generally go by your own terms and conditions in the compromise arrived at by both of you. So, there would hardly be any chance for the court to award any maintenance or alimony to your wife when she is herself not interested in it.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Section 63(c) of the Succession Act, 1925, requires as under:

“(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each 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 the same time, and no particular form of attestation shall be necessary.”

It is thus necessary that a will should be attested by two or more witnesses in the manner as laid down in Section 63(c) above.

Therefore, if a will is not attested by two or more witnesses as mentioned above, it would be invalid.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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