[Dr. Ashok Dhamija]

When the courts declare the law by way of interpretation, the rule of retrospectivity of such declaration is the norm. This means that the declaration made by the court is deemed to applicable from the date of coming into existence of law. For example, where a law is declared invalid by a court, it is deemed to be invalid from the date that particular law had come into existence. This is because a court only declares the law by way of interpretation, so that declaration is effective for the entire duration of that law.

On the other hand, the concept of prospective overruling is a deviation from the principle of retroactive operation of a court ruling.  It implies that such a court ruling would not have retrospective operation but would operate only in the future and will have only prospective operation. The purpose of prospective overruling is to avoid reopening of already settled issues and to prevent multiplicity of proceedings. It is essentially meant to protect the interests of the litigants whose cases have already been decided and settled. This means that all actions which have already been taken prior to the declaration of such law by court, do not stand invalidated.

Since the prospective overruling affects only future actions, the past actions that have already been taken under the same law continue to be valid even if the such law has been held to 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.

[Dr. Ashok Dhamija]

Section 126 of the Transfer of Property Act, 1882, lays down as under:

“126. When gift may be suspended or revoked.— The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked, but a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor is void wholly or in part, as the case may be.

A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

Illustrations

(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B, and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.

(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs 10,000 out of the lakh. The gift holds good as to Rs 90,000 but is void as to Rs 10,000 which continue to belong to A.”

Section 126 of the Transfer of Property Act thus clearly says that a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor is void wholly or in part, as the case may be. Thus, if a gift makes it revocable at the will of the donor is void, i.e., it is invalid gift and is of no effect in law. Such a gift cannot be made.

Moreover, Section 126 further says that “Save as aforesaid, a gift cannot be revoked”. Thus, barring the situations mentioned in Section 126, a gift cannot be revoked. And, none of these situations cover revocation of a gift at the sweet will of the donor of the gift.

Therefore, coming back to your question, once a gift of an immovable property has been registered, it cannot be revoked by the donor at his will. Moreover, if there is a clause in the gift deed that it could be revoked at the will of the donor in future, then such gift deed itself is void.     

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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 is difficult to answer a question based on detailed facts, without actually seeing the relevant documents. In any case, from your question, it is not clear:

(1) Whether the land was given to you by your father by a registered gift deed or without any papers?

(2) Who has the title of the land?

(4) Whether your father formally divided the land between the two brothers?

(5) Whether the total land was partitioned between two brothers or it continues to be in the name of the father?

(6) Who is paying the property tax, etc. and in whose name?

Please consult some lawyer by showing all your relevant documents and details. in the absence of having seen all relevant documents, it may not be possible to give correct advice on issues of facts. This is because your question is mostly a question of facts.     

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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]

I don’t think the grounds mentioned by you would make out a case for defamation. Further, it is 33 years too late to raise this issue.

Moreover, the following three Exceptions mentioned in Section 499 of IPC (which defines defamation) may directly or indirectly take care of something which has said in a court proceeding, thereby excepting such act from being defamation:

“Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.”

 

     

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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 is too late in the day to ask this question. Exactly the same question was raised before the Supreme Court in the case of Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321 : 1954 SCR 930, which was decided by a 5-judge Constitution bench of the Supreme Court.

In that case, the appellant was being prosecuted for adultery under Section 497 of the Indian Penal Code. He challenged it on the ground whether Section 497 of the Indian Penal Code contravenes Articles 14 and 15 of the Constitution.

The Supreme Court held that the portion of Article 15 on which the appellant relied is this:

“The State shall not discriminate against any citizen on grounds only of … sex.”

But, the Court noted that what he overlooked is that this was subject to clause (3) which runs—

“Nothing in this article shall prevent the State from making any special provision for women….”

The Supreme Court held that the provision complained of is a special provision and it is made for women, therefore it is saved by clause (3) of Article 15. It was argued on behalf of the appellant that clause (3) of Article 15 should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. However, the Supreme Court refused to read any such restriction into the clause; and it further held that it did not agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited.

Supreme Court also observed that Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. It was held that the two articles read together validate the impugned clause in Section 497 of the Indian Penal Code.

In view of this, it should be clear that Section 497 of IPC has been held to be NOT in violation of the right to equality.

     

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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 141 of the Negotiable Instruments Act makes it crystal clear that if the person who commits an offence under Section 138 of the Act is a company, the company as well as other persons in charge of or responsible to the company for the conduct of the business of the company at the time of commission of the offence is deemed to be guilty of the offence. Thus, it creates a constructive liability on the persons responsible for the conduct of the business of the company.

In the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89, the Supreme Court observed as under:

“A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a Director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-Director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.”

“It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.”

Likewise, in the case of Sabitha Ramamurthy v. R.B.S. Channabasavaradhya, (2006) 10 SCC 581, it was held as under:

“A bare perusal of the complaint petitions demonstrates that the statutory requirements contained in Section 141 of the Negotiable Instruments Act had not been complied with. It may be true that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused are vicariously liable. Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance with the statutory requirements would be insisted. Not only the averments made in para 7 of the complaint petitions do not meet the said statutory requirements, the sworn statement of the witness made by the son of the respondent herein, does not contain any statement that the appellants were in charge of the business of the Company. In a case where the court is required to issue summons which would put the accused to some sort of harassment, the court should insist strict compliance with the statutory requirements.”

From the above judgments of the Supreme Court, it is thus clear that it is necessary to specifically aver in a complaint for cheque bounce case for the purposes of Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company.

In the case of K.K. Ahuja v. V.K. Vora, (2009) 10 SCC 48, the Supreme Court summarised position under Section 141 of the Negotiable Instruments Act thus:

“(i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix “Managing” to the word “Director” makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company.

(ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141.

(iii) In the case of a Director, secretary or manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1) of the Act. No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section.

(iv) Other officers of a company cannot be made liable under sub-section (1) of Section 141. Other officers of a company can be made liable only under sub-section (2) of Section 141, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence.”

Coming now to the case of your client, if no such specific averment is made in the complaint of cheque bounce case against your client as whether he was in charge of, and responsible for the conduct of business of the company, it may be difficult to prove the case against your client. This is clear from the above Supreme Court judgments.

     

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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]

Please note that the Negotiable Instruments Act, 1881, contains the following important provision in Section 145, which is as under:

“145. Evidence on affidavit.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.”

Section 145 of the N.I. Act starts with a non-obstante clause, i.e., “Notwithstanding anything contained in the Code of Criminal Procedure…”. With regard to this, in the case of K.S Joseph v. Philips Carbon Black Ltd., (2016) 11 SCC 105 : AIR 2016 SC 2149, the Supreme has held that this non-obstante clause in sub-section (1) of Section 145 is self-explanatory and overrules the requirement of examination of the complainant on solemn affirmation under Section 200 Cr.P.C. The Supreme Court held that the complainant in a cheque bounce case is entitled to give his evidence on affidavit and subject to all just exceptions, the same has to be read in evidence in any enquiry, trial or other proceeding under Cr.P.C.

In view of the above reasons, there is no need for the magistrate to first record the statement of the complainant on oath in a cheque bounce case under Section 200 Cr.P.C. at the time of taking cognizance of such case. The complainant’s evidence can be obtained in the form of affidavit, as mentioned above.

     

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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]

Recently, in the case of State of Punjab v. Jagjit Singh, (2017) 1 SCC 148, the Supreme Court has reiterated that the principle of “equal pay for equal work” expounded through various decisions of Supreme Court is also applicable to temporary employees performing the same duties and responsibilities as regular employees.

The Supreme Court held that there is no room for any doubt that the principle of “equal pay for equal work” has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by the Supreme Court, and constitutes law declared by the Supreme Court. This principle is binding on all the courts in India under Article 141 of the Constitution. It is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

The Supreme Court held that the only issue that is to be determined is whether such temporary employees were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. Once it is found that they were performing the similar duties and responsibilities, then the principle of equal pay for equal work will apply.

Therefore, the answer to your question is that a temporary employee is performing the similar duties and responsibilities as the regular employees, then he is entitled for similar pay.

     

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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]

I have discussed this issue in detail in my following article which may be seen: Burden of proof of service of notice in cheque dishonour case, what if accused avoiding service?

As regards your second question, let me state that, yes, you or someone else on your behalf can personally go and serve the notice on the person who issued the cheque which has bounced, in addition to sending it by registered post.

Please keep in mind that Section 138 of the Negotiable Instruments Act merely says that a notice has to be given to the drawer of the cheque; it does not lay down how the notice has to be given; in particular, it does not prohibit personally handing over the notice to the drawer of the cheque.

Of course, if you personally serve the notice on the drawer of the cheque, you should take his signature of having received it as acknowledgement (if possible, with his stamp) and/or other evidence should be collected to show proof of service on the drawer of the cheque.

     

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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, you should be in a position to force him to repay the said loan by going to court, even though the said loan is time-barred due to limitation. This is in view of the provisions of Section 25(3) of the Contracts Act, 1872, which is reproduced below:

“25. Agreement without consideration void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law.—An agreement made without consideration is void, unless—

(1) it is expressed in writing and registered under the law for the time being in force for registration of 1[documents], and is made on account of natural love and affection between parties standing in a near relation to each other; or unless

(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless

(3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.

In any of these cases, such an agreement is a contract.

Explanation 1.—Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made.

Explanation 2.—An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent to the promisor was freely given.”

Illustrations

(a) A promises, for no consideration, to give to B Rs. 1,000. This is a void agreement.

(b) A, for natural love and affection, promises to give his son, B, Rs. 1,000. A puts his promise to B into writing and registers it. This is a contract.

(c) A finds B’s purse and gives it to him. B promises to give A Rs. 50. This is a contract.

(d) A supports B’s infant son. B promises to pay A’s expenses in so doing. This is a contract.

(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs. 500 on account of the debt. This is a contract.

(f) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A’s consent to the agreement was freely given. The agreement is a contract notwithstanding the inadequacy of the consideration.

(g) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A denies that his consent to the agreement was freely given.

The inadequacy of the consideration is a fact which the Court should take into account in considering whether or not A’s consent was freely given.”

As per this provision of Section 25(3), if a promise is made in writing and signed by the person to pay a debt of which the creditor might have enforced payment but for the law for the limitation of suits, then it is a valid agreement and a valid contract.

However, it should be kept in mind that it should not merely be an acknowledgement of the time-barred debt, but it should be a specific promise in writing to pay the time-barred debt.

In your case, you have mentioned that the debtor has promised to you in writing (and I hope it is signed by him also) to repay the amount of loan which was otherwise time-barred due to the limitation of 3 years. In these circumstances, it should be possible for you to approach the court to force him to fulfil the promise of repaying the above loan.

     

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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 fact, recently, this issue has been decided by the Supreme Court. In the case of City Municipal Council Bhalki v. Gurappa, (2016) 2 SCC 200, the Supreme Court has held that as a municipal council is not a public officer, no notice is necessary under Section 80 CPC when a suit is filed against a municipality.

Therefore, it is not necessary for you to first give a notice under Section 80 of the Civil Procedure Code (CPC) before you file the suit against the municipality. You can directly file the suit against the municipality without such notice.

In the above judgment, the Supreme Court has not given detailed reasoning as to why such notice need not be given to the municipality; it has given only a brief reason. Let me try to explain it in more detail.

Section 80 CPC notice is necessary only when the suit is to be filed against a Government or a public officer in respect of any act purporting to be done by such public officer in his official capacity.

Now, Section 2(17) of CPC defines “public officer” as under:

“(17) “public officer” means a person falling under any of the following descriptions, namely:—

(a) every Judge;

(b) every member of an All-India Service;

(c) every commissioned or gazetted officer in the military, naval or air forces of the Union while serving under the Government;

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;”

Now, it is clear that the definition of “public officer” does not include a municipal committee or a municipal council or a municipal corporation.

Let us now see the definition of “Government” which word is used in Section 80 CPC. It is not defined in the CPC. However, it is defined in Section 3(23) of the General Clauses Act, 1897, as under:

“(23) “Government” or “the Government”, shall include both the Central Government and any State Government;”

It is thus quite clear that a municipality is not covered within the definition of the word “Government” also.

Therefore, since a municipality is not covered within the definition of either “Government” or “public officer”, which are mentioned in Section 80 CPC, no such notice under this section is necessary if a civil suit is to be filed against the municipality.

     

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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. An appeal against a consent decree is not permissible under the specific provisions of Section 96(3) of the Civil Procedure Code, which is reproduced below:

“(3) No appeal shall lie from a decree passed by the Court with the consent of parties.”

     

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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]

I have already answered a similar question in detail (link given below). It can be said that while there is a general restriction on grant of a passport to a person facing a criminal case in India, passport can still be issued to such a person on the specific permission granted by the concerned court if he files an undertaking. This is the present legal position with regard to issuance of a passport to a person facing proceedings in a criminal case in a court in India. And, this legal position equally applies for a person who is accused of an offence under Section 498-A of IPC on a complaint filed by his wife. So, he can also get passport (or renew) subject to specific permission granted by the court before which such case is pending.

Please read my following article for more details: Can a person get passport during pendency of criminal case?

In this regard, please also see: Passport authority has no power to curb travel abroad of accused in criminal case, says Bombay High 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]

Rule 3(5) of Order 37 (Summary Suits) of the Civil Procedure Code (CPC) deals with the application of the defendant for leave to defend in a summary suit. As per this provision, the defendant may apply for leave to defend a summary suit, by affidavit or otherwise, disclosing such facts as may be deemed sufficient to entitle him to defend. It does not specifically lay down that the defendant has necessarily to file the defence documents at this stage. What is necessary is that the defendant must disclose such facts which are sufficient to entitle him to defend in the summary suit. The Rule further provides that the leave to defend may generally be allowed by the court unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious.

At the same time, even though it is not mandatory at such stage, if the defendant has certain defence documents that help him to prove his defence, it is advisable to file them at the time of applying for leave to defend. It will help the court in satisfying itself that the defendant has sufficient grounds to defend the summary suit.

Rule 3(5) of Order 37 of the Civil Procedure Code is reproduced below:

“(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in 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]

Section 161(4) of the Companies Act, 2013, provides answer to your question. It says that if the office of any director appointed by a public company in general meeting is vacated before his term of office expires in the normal course, the resulting casual vacancy may, in default of and subject to any regulations in the articles of the company, be filled by the Board of Directors at a meeting of the Board. This provision is reproduced below:

“(4) In the case of a public company, if the office of any director appointed by the company in general meeting is vacated before his term of office expires in the normal course, the resulting casual vacancy may, in default of and subject to any regulations in the articles of the company, be filled by the Board of Directors at a meeting of the Board:

Provided that any person so appointed shall hold office only up to the date up to which the director in whose place he is appointed would have held office if it had not been vacated.”

     

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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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