[Dr. Ashok Dhamija]

It appears that the high court order was passed in the year 2014, which is about 6 years back. Likewise, the order of dismissal passed by the department also appears to have been passed about 4 years back in 2016.

If you want to now challenge the aforesaid high court order in the Supreme Court, that would mean a delay of about 6 years, since the limitation period to file a Special Leave Petition (SLP) is 3 months. This is a gross delay and it will be very difficult to explain the delay, unless you have some really genuine reasons to explain the delay. Therefore, the chances are that the SLP may be rejected by the Supreme Court on the grounds of delay alone.

Moreover, usually, the chances of success in SLPs in the Supreme Court are comparatively less, since a majority of the SLPs are dismissed on the first date at the notice stage itself.

So, the chances of success in your case appear to be very less. Yet, if you want, you can try.

     

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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 105(2) of Order 21 of CPC contains the provision relating to dismissal of the execution application due to non-appearance of applicant by laying down that where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

Rule 106(1) provides that the applicant, against whom an order is made under sub-rule (2) of Rule 105, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

Now, if the Execution Petition has been dismissed for want of prosecution and for not taking steps, as mentioned in your question, then it may not covered under Rule 106 for restoration which applies to dismissal on the ground of non-appearance.

However, I am of the opinion that the court still has the power to restore the execution petition even in this case. This can be done in the exercise of inherent powers of the court under Section 151 of the Civil Procedure Code:

“151. Saving of inherent powers of Court.— Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

Therefore, I feel that an application can be filed before the court for restoration of the execution petition which has been dismissed for want of prosecution and for not taking steps, under Section 151 of CPC. If the court is satisfied, it may pass appropriate orders.

In fact, the judgment of Bombay High Court, mentioned by you [however, you have mentioned wrong names of parties, the correct citation of parties’ names is: Suglabai Prabhu Jaishete v. Rangrao Govindrao], also supports a similar view that it can be done under Section 151 CPC where it cannot be done under Rule 106 of Order 21 of CPC.

     

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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 25 of the Hindu Marriage Act, which deals with the grant of permanent alimony and maintenance, clearly states that “Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband…”.

Therefore, the court may issue the order / decree of divorce and the alimony either on the same day or on different dates. It may differ from case to case. Generally, such orders may be issued at the same time.

The answer to your second question is contained in Section 15 of the Hindu Marriage Act:

“15. Divorced persons when may marry again.—When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

Since the period for filing appeal against a decree of divorce is 90 days, this implies that one may have to wait for this period of 90 days before marrying again if the appeal is not filed. And if the appeal is filed, then the parties to the divorce may have to wait till the disposal of the appeal for marrying again.

     

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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 do not repeat a question. I have already answered your same question at Section 23 of maintenance and senior citizen act 2007. In case of a doubt, do not ask duplicate question and raise your query in the same previous question.

As I have already said, it is seen from the language of Section 23 of the said Act that it is applicable where a senior citizen has transferred his property by way of gift or otherwise. In your case, when the property was transferred by the younger brother, he was not a senior citizen since at that time he was 56 years old. Therefore, it appears that Section 23 may not be applicable. However, the courts may sometimes view it as a beneficial provision to the senior citizens and take a liberal view (to the effect that the property could have been transferred even prior to becoming a senior citizen), more so, because now you have specifically said that the property was transferred by way of a gift and that there was a condition too that the transferor had a right to cancel the deed if the transferee does not maintain him. There is also another complication in that the transferee (the elder brother) is himself a senior citizen.

So, ultimately, the question also involves detailed examination of facts, which is not possible on a forum as documents are not examined in detail while answering questions. But, I have tried to highlight the issues that may be relevant to your matter. It will ultimately depend on the interpretation given by the court, more so, in the facts of the case. On your part, you can take a stand (on behalf of the transferee, who is the elder brother) that Section 23 is not applicable for the reasons 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]

Usually, under the provisions of Section 49 of the Registration Act, an unregistered document relating to an immovable property cannot be taken in evidence and cannot affect any right relating to that property.

However, there is an exception in the Proviso to Section 49 where an unregistered document is allowed to be taken in evidence in a suit for specific performance.

So, to that extent, the agreement on the stamp paper is valid, and you may have to file a suit for specific performance under the provisions of the Specific Relief Act. Consult a local lawyer for more details.

It is not clear whether the part payment of ₹ 9 lakh was made in cash or by cheque / demand-draft or online transfer. If such part payment was made in cash, then it is hoped that you would have shown this payment in your accounts and in Income Tax Returns, if required to be done. Otherwise, there could be tax complications.

There are also certain restrictions on the receipt of cash payment beyond a limit. In particular, since 1 April 2017, a payment of more than ₹ 2 lakh in cash is prohibited under Section 269-ST of the Income Tax Act.

     

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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 provisions of the Information Technology Act, 2000, do NOT apply at present to any contract for the sale or conveyance of immovable property or any interest in such property. Your family settlement deed would be involving immovable property, I presume. Thus, it would be involving “any interest in immovable property”, which is not covered under the provisions of the IT Act at this time.

Therefore, it is not possible to have an online documentation for the family settlement deed. One has to file and register such deed in a physical format in the office of the concerned authorities. For this purpose, a personal visit of the members is necessary.

There can be possibility of a particular member giving a power of attorney to another person in favour of such interest in the property. In such case, the power of attorney holder can visit the office of the concerned authority at the time of registration of the settlement deed.

Another possibility could perhaps be requesting the concerned authority to verify the details of a specific family member by visiting his house, if such family member is not in a position to go outside house due to serious medical problems, etc.

Otherwise, as far as I understand, there is no other option but to personally visit the office of the concerned authority for the purpose of the registration of the family settlement deed.

     

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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 depends on the bye-laws of the your society. You have said that there is nothing on this issue in the bye-laws. In that case, your society may have to take decision in this regard. Whatever decision is taken, should be made applicable to other similar cases too.

You can also check in your bye-laws, etc., whether there is a provision for waiver of interest amount on the late payment. This can also be kept in mind while taking decision, as mentioned above.

Generally speaking, it is not desirable to waive such interest on late payments, if there is a rule for charging interest on such late payments. The society / management can take a decision that the interest on late payment would not be waived and that part payment would not be adjusted against the interest on late payment. You can enforce such decision against the erring members and ask them to pay the full amount, i.e., the principle amount as well as the interest on the late payment.

     

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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]

Firstly, the rule that a departmental enquiry cannot be initiated where the issue involved is more than 4 years old, is applicable where the charge sheet is issued after retirement of the employee. There is no such restriction of 4 years where the charge sheet has been issued prior to the retirement, even if it may be just a few hours before retirement, as it appears to be in your case.

Secondly, this rule is as applicable to the central government employees under Rule 9 of the Central Civil Services (Pension) Rules, 1972. You have mentioned that you were working in a central PSU. So, it is not known whether there is a similar rule in your pension rules. You may have to check it from your company’s rules.

That said, there is still a general principle of law that the departmental enquiry should not be initiated on a very old issue after long delay. How much delay? Well, it depends on the facts of each case, including on the gravity of the charges. In your case, you have mentioned that the departmental enquiry has been started on an issue which is 24 years old. If correct, it would be wrong on the part of the part of the authorities to do so. You can consider challenging it in appropriate court / tribunal on the ground of gross delay caused in the initiation of the departmental proceedings in your case. There is a reasonable chance that the court may agree with your contention, more so if the charges are not serious.

     

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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 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is reproduced as under:

“23. Transfer of property to be void in certain circumstances.—(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights under sub-section (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of Section 5.”

So, it is clear from its language that it is applicable where a senior citizen has transferred his property by way of gift or otherwise. In your case, when the property was transferred by the younger brother, he was not a senior citizen since at that time he was 56 years old.

Moreover, such transfer of property must have been on the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs.

So, check whether the transfer in your case was made subject to this condition. Also check whether the elder brother has refused to or has failed to provide the amenities and physical needs as mentioned at the time of the transfer.

On the fact of the facts mentioned by you, it appears that Section 23 may not apply in your case. Note that it is difficult to give opinion on facts of a case by merely reading a question and without going through the detailed documents of the case (as mentioned in Tilak Marg Forum guidelines). In fact, you have not mentioned even whether the transfer was a gift or on the basis of some consideration; though I have presumed it to be as a gift or at least with inadequate consideration. Therefore, this is a tentative opinion on the basis of limited information being available.

     

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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]

Unlike the previous Companies Act, 1956, the new Companies Act, 2013 contains a specific provision for “Resignation of director” in Section 168 of the new Act. This section is reproduced below:

“168. Resignation of director.—(1) A director may resign from his office by giving a notice in writing to the company and the Board shall on receipt of such notice take note of the same and the company shall intimate the Registrar in such manner, within such time and in such form as may be prescribed and shall also place the fact of such resignation in the report of directors laid in the immediately following general meeting by the company:

Provided that a director shall also forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within thirty days of resignation in such manner as may be prescribed.

(2) The resignation of a director shall take effect from the date on which the notice is received by the company or the date, if any, specified by the director in the notice, whichever is later:

Provided that the director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure.

(3) Where all the directors of a company resign from their offices, or vacate their offices under Section 167, the promoter or, in his absence, the Central Government shall appoint the required number of directors who shall hold office till the directors are appointed by the company in general meeting.”

It is clearly seen from this section that a director of a company may resign from his office by giving a notice in writing to the company. It has been made binding on the Board of the company to take note of such notice of resignation, and further, it is binding on the company to intimate the Registrar about such resignation. Such intimation to the Registrar has to be given in such manner, within such time and in such form as may be prescribed under rules. In fact, the director who is resigning, is also required to forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within 30 days of resignation in such manner as may be prescribed by rules.

Moreover, it is also laid down in the said section that the resignation of a director shall take effect from the date on which the notice (for resignation) is received by the company or any other date, if any specified by the director in the notice, whichever is later.

In view of the above, it appears that the resignation of a director, under the new Companies Act, is not subject to approval of the Board and it automatically comes into effect from the date mentioned above. However, a director who has resigned shall be liable, even after his resignation, for the offences which occurred during his tenure.

So, you may perhaps take action as per this legal provision.

     

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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 replied to a similar question in the past, which covers your question too. Read the previous answer at the following link:

How many days it takes to remove defects in diary number in Supreme 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]

It depends on the facts of the case, as to whether the FIR in that case can be quashed by the high court.

If the FIR has been registered even though all facts in the complaint, taken together, do not make it an offence (or don’t disclose a cognizable offence), then it can be quashed by the high court.

However, if the FIR, on the face of the facts mentioned therein (which may be true or false) discloses commission of a cognizable offence, then the high court may not generally quash the FIR, since in that case falsity of the allegations mentioned in the FIR has to be proved during the trial (or, may be during investigation by police or charge-framing stage in court).

So, if the FIR registered against you contains information (which may be true or false) which discloses a cognizable offence, then chances of its getting quashed by high court are much less. If you feel that wrong facts have been mentioned in the FIR, you may have to convince the investigating officer of police to close the case, or later convince the trial court by filing a discharge application or during trial.

The general guidelines relating to quashing of FIRs have been given by Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 : 1992 Cri LJ 527. You can search this judgment online.

     

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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]

Firstly, note that the police does not have power to arrest a person in a non-cognizable offence without the order of a court.

Secondly, if the FIR has been registered even though all facts in the complaint, taken together, do not make it an offence (or don’t disclose a cognizable offence), then it can be quashed by the high court. The power to quash the FIR is with the high court (or Supreme Court) and the lower courts do not have such power. So, you may have to approach the high court for quashing of FIR.

As far as bail issue is concerned, it is advisable to go to the Magistrate court for getting bail, instead of going to high court with a habeas corpus writ petition.

In appropriate circumstances, depending on facts of the case, a private complaint in local court can be filed for illegal detention by police, if any. Or seek damages by filing a civil case.

As per Tilak Marg Forum policy (displayed during asking of each question), questions purely of academic nature, are not replied due to paucity of time, as otherwise it may not be possible to answer the genuine questions of people facing legal issues. Moreover, sometimes, it may not be possible to answer a question if it is beyond the domain of knowledge of our experts.

     

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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]

Successive bail applications may be permitted if there is change in circumstances. While it may not be possible to enumerate all such circumstances due to change in which a second or subsequent bail application may be considered (it will depend on facts of each case), some of the illustrative change in circumstances which may be considered by courts are under (note that this is not an exhaustive list):

• Filing of charge sheet.
• Age, sickness.
• Lapse of considerable time.
• Change in stage of trial with important witnesses having already been examined.
• Investigation not indicating role or some other accused getting involved in place of him.
• Some other material change in circumstances.

     

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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]

If you are the complainant in a criminal case and if the police has filed a closure report in that case [which is done under Section 173 of the Criminal Procedure Code], then under law, you have a right to file a protest petition to oppose the closure of the case by police. For this purpose, the court calls upon you to file your protest, if any, to the closure of the case.

However, if you don’t want to file any protest petition against the closure report, there is no reason why you should be harassed and called again and again to the court merely for that purpose. I think you can officially give / file your letter / application to the court and police to the effect that you don’t want to contest the closure report, and that you don’t want to file the protest petition, and that you don’t have any objection if the police wants to file a closure report. I think that should solve the issue.

     

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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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