It is a common practice that a tender notice is generally issued by government companies and even by big private companies for high-value contracts. Usually, there is a condition of deposit of an earnest money along with submission of the bid / tender, and generally there are also conditions for forfeiture of earnest money in certain situations.
The Insolvency and Bankruptcy Code (IBC), as it was originally enacted, did not contain an adequate recognition of the interests of home buyers in real estate projects.
Many a time, offence of cheating under Section 420 IPC is alleged to have been made out where there is a breach of contract or violation of the terms of an agreement leading to monetary loss. However, many such cases do not stand the test of law.
So, when can it be said that an offence of cheating is made out where there is a breach of contract?
Question: One of my friends has been accused of an offence of cheating under Section 420 IPC on the ground that he fraudulently obtained admission card for an examination being conducted by the University, by proving a fake school certificate. Can it amount to an offence of cheating since no property was involved in this matter?
Question: If the complainant dies during the pendency of a private criminal complaint case, can this case be continued by his successors or the case would come to an end?
Answer: Yes, it is possible for the successors of the complainant (after his death) to continue to private criminal complaint case. It can be done with the permission of the court.
Recently, in the case of Chand Devi Daga v. Manju K. Humatani, (2018) 1 SCC 71, the Supreme Court decided a similar issue. In this case, the complainant had filed a complaint alleging offences under Sections 420, 467, 468, 471, 120-B, 201 and 34 IPC. This complaint was dismissed. The criminal revision petition filed by the complainant was also dismissed by the Additional Sessions Judge. The complainant filed a petition in the high court against that order. During the pendency of this case before the high court, the complainant died. An application was filed by the legal heirs of the complainant praying them to be substituted in place of the complainant. The High Court allowed the said application and permitted the legal representatives of the complainant to come on record for prosecuting the criminal miscellaneous petition before the high court. On appeal, the Supreme Court held that the High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the criminal miscellaneous petition before the High Court.
The Supreme Court relied upon Section 302 of Criminal Procedure Code (and certain other sections) and certain previous judgments to hold that, with the permission of the court, a criminal complaint can be prosecuted by the successors of the complainant after his death. Section 302 of the Cr.P.C. is as under:
“302. Permission to conduct prosecution.—(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.”
It is quite clear from the above section that the court has the power to permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector. And, such “any person” would definitely include the heirs of the complainant.
Previous judgments of the Supreme Court in which it was similarly held that heirs of the complainant can continue the prosecution after his death, are as under:
(1) Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983 : 1967 Cri LJ 943;
(2) Balasaheb K. Thackeray v. Venkat, (2006) 5 SCC 530;
(3) Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, (2004) 12 SCC 509.
However, it is clear from these judgments that the successors of the complainant will need to obtain permission from the court to continue prosecution after death of the complainant.
Question: Will the Supreme Court admit a Special Leave Petition (SLP) even if there is no substantial question of law shown in it while filing SLP under Article 136 of the Constitution?
Question: In an affidavit filed by the respondent before the court, a false statement has been made deliberately, knowing fully well that it is a false statement. Does it amount to contempt of court also or merely a perjury?
Under Section 82 of the Criminal Procedure Code, the court has the power to issue a proclamation in respect of a person who has absconded. Section 83 of the Cr.P.C. contains provisions for attachment of property of an absconding in respect of whom a proclamation has been issued under Section 82.
Question: Is it possible to challenge an interlocutory order passed by an arbitrator (i.e., an order passed during the arbitration proceedings) in the High Court by filing a writ petition, if no other appeal is available against such order under the provisions of the Arbitration and Conciliation Act, 1996?
Question: A government employee is dismissed from service. Subsequently, as laid down in the rules, he files an appeal before the appellate authority in his department against his dismissal order. The appellate authority takes a long period of time to decide the appeal. Now, the question is – if this employee wants to challenge this order in the court or tribunal, how would the limitation period be counted? Would the limitation period be counted from the date of the original dismissal order or from the date of the order of the appellate authority? Because if the limitation is to be counted from the dismissal order, then his challenge in court will be time-barred.
Question: In his written statement filed by the defendant in a civil suit filed by me, he has claimed that my suit is barred by limitation. He has also filed an application under Order 7 Rule 11 of the CPC for rejection of the plaint on the ground of limitation. In my plaint, I have given sufficient grounds to show that the plaint is within the period of limitation. My question is whether my plaint can be rejected at threshold (without conducting trial) on the ground of limitation on the basis of written statement of the defendant?
On 1 May 2019, the District Election Officer rejected the nomination of the former BSF jawan Tej Bahadur Yadav as a Samajwadi Party candidate from Varanasi Lok Sabha constituency. Several persons have questioned this action of the Election Commission.
Varanasi is a VIP constituency since the Prime Minister Narendra Modi is a candidate from this constituency. It is being projected as if the nomination of Tej Bahadur has been rejected because of undue influence of the BJP Government or the ruling party.
However, a closer examination of the relevant legal provisions and the facts of the case show that his nomination appears to have been rightly rejected.
Section 9 of the Representation of the People Act, 1951, lays down as under:
“9. Disqualification for dismissal for corruption or disloyalty.—(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal.
(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact:
Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person.”
Thus, a person who has been dismissed from a government service for corruption or for disloyalty to the State is disqualified from contesting elections for a period of 5 years from the date of such dismissal. It is further provided that a certificate issued by the Election Commission in this regard shall be conclusive proof, as to whether the dismissal was for corruption or disloyalty or was not for these reasons.
Now, in the case of ex-BSF jawan Tej Bahadur Yadav, he was dismissed from BSF on April 19, 2017. So, the period of 5 years from that date would operate till April 18, 2022. Thus, he was required to obtain a certificate from the Election Commission that his dismissal from government service was not on account of corruption or disloyalty to the State.
Before filing his nomination, Tej Bahadur Yadav should have been aware of the legal provisions relating to disqualification of candidates. Moreover, he has been fielded by a well-established political party, i.e., Samajwadi Party, which has sufficient legal support. Despite this, Tej Bahadur or Samajwadi Party did not take sufficient care in advance to satisfy the requirements of law under Section 9 of the Representation of the People Act, 1951.
This is not an obscure provision of law hidden in some old circular, but it is a prominent legal provision in the main Act itself. They cannot say that they were not aware of this legal provision. Everyone is supposed to know the law. Ignorance of law is no excuse.
Moreover, despite an additional opportunity given to him by the District Election Officer to produce the certificate from the Election Commission, he failed to comply with the requirements of law.
Thus, the rejection of nomination of Tej Bahadur Yadav appears to be in order. He and his political party are themselves to blame for this legal fiasco. The Election Commission would not take such major action of rejecting nomination of a candidate (and that too in a VIP constituency of the PM, which can attract media attention) under undue influence of the government or the ruling party.
Question: In a case, the amount due from a person is more than the cheque amount which has been dishonoured. In this situation, can both the cheque bounce case and the civil suit for recovery of the amount be filed simultaneously?
Answer: In one of my previous answers (Cheque bounce case and civil suit for recovery of same amount), I have mentioned that while both the proceedings are possible simultaneously (i.e., cheque bounce case under Section 138 of Negotiable Instruments Act, as well as civil suit for recovery of money due), generally in practice only Section 138 case is filed by most people since this is a faster way of getting justice and also since if this case succeeds then generally the court will award fine / compensation equivalent to the amount of the cheque, which will obviate the need for filing of the civil suit for recovery of money. I had also referred to the judgment of the Supreme Court in the case of D. Purushotama Reddy v. K. Sateesh, (2008) 8 SCC 505.
However, if the cheque was issued only for a part amount of the total amount payable or due, i.e., where the cheque amount is less than the total amount due from the party, and if such cheque is dishonoured, then the only course open to recover the full amount due would be to also file the civil suit for recovery of the amount due, along with the cheque bounce case. Since the total amount due is more than the amount of the cheque that has been dishonoured, you may have to file a civil suit for recovery if other methods of getting the amount back do not work. Filing these two cases together is legally permissible.
At the hearing of the Ayodhya dispute on 6 March 2019, by a 5-judge Constitution bench of the Supreme Court, headed by the Chief Justice of India Ranjan Gogoi, the Supreme Court has reserved its order to decide whether the politically sensitive Ram Janmabhoomi-Babri Masjid land dispute can be adjudicated through mediation.
Firstly, let us understand what is “mediation”, and how it is different from “arbitration”.
Mediation is a form of alternative dispute resolution mechanism, i.e., trying to resolve the dispute other than through the courts. In mediation, a neutral third party (may be one or more such neutral persons) is appointed who assists the parties to the dispute and helps them to arrive at some mutually agreeable settlement of the resolution. All the parties to the dispute are encouraged to actively participate in the mediation process in order to try to resolve the dispute. The mediator, because of his neutrality and special knowledge, tries to facilitate the negotiations between the parties, keeping in view the needs, rights, and interests of the parties. Any resolution of the dispute will only be with consent of the parties.
Please understand now the difference between a mediator and arbitrator.
Arbitration is an alternative dispute resolution mechanism. But, an arbitrator (a neutral third party, generally appointed by parties by consent or by court; there are detailed rules in this regard and the parties may have their own agreement for this purpose) is like a “judge” or a “referee” or an “umpire” who has the legal power to decide the dispute. His decision (which is generally called an arbitral award) is binding like a decree of the court and can be challenged only on some limited grounds. Arbitration has the legal backing of law. At present, Arbitration and Conciliation Act, 1996, governs arbitrations.
On the other hand, a mediator is not a “judge” or “referee”. He is only a facilitator. He helps the parties to arrive at some mutually agreeable resolution of the dispute. But, he does not have power to decide the dispute himself. So, there are times when the mediation may fail if both the parties do not agree to a common solution. So, a mediation is basically a negotiated settlement with the concurrence of the parties, facilitated by a neutral mediator. If the mediation is successful, usually the result is recorded in the form of a memorandum of understanding (MOU) or agreement, wherein the mediator will also sign along with the parties. It is such MOU that becomes binding upon the parties. And, if the mediation was as per the order of the court in a pending case, the MOU / agreement arrived at by the parties, if any, is noted in the order of the court disposing of the case on the basis of such mediation. Once it is done, then such order of the court (which records the agreement / MOU arrived at between the parties in the mediation process) becomes binding on the parties like a regular judgment of the court.
So, the key point in a mediation is that success is not guaranteed. The mediator does not decide the dispute, but only facilitates a resolution of the dispute by his active encouragement to the parties by giving his expert help. Despite mediation, both parties may REFUSE to agree for a settlement. In that way, mediation may fail too.
Let me tell you from my personal experiences. In many of my cases, mediation initiated by orders of the Supreme Court has been successful. Sometimes, even very complicated disputes have been resolved, which were otherwise pending for several years. At the same time, there have been some cases in which the mediation did not succeed; the result is then reported to the Supreme Court and the case then proceeds on merits in the court.
In my service during IPS too, I have seen many disputes being resolved through mediation between warring parties. I have myself facilitated many such mediations with the consent of the parties. I have myself successfully acted as a mediator in some complicated disputes during my service, which could have otherwise led to serious law & order problems, but due to such mediation such law & order problems could be averted by way of amicable settlement.
So, mediation is possible in the Ayodhya dispute. Whether or not such mediation succeeds is, of course, a different matter.
It is true that past attempts at solving the Ayodhya dispute through negotiations have failed. But, usually, a mediation sponsored / ordered by the Supreme Court has a better chance of success, because this is the final / apex court, and usually people try their best to try to find a solution when the apex court is involved. So, there is no harm in trying a mediation if the Supreme Court wants to order it.
Moreover, from media reports, it appears that some former judges of the Supreme Court are likely to be appointed as mediators (of course, to the extent possible, they will be appointed with the consent of the parties). Due to their expertise in dispute resolution, these retired judges can definitely facilitate the mediation between the parties.
And, if the parties to the dispute still do not agree to a mutually agreeable solution, then, of course, the mediation will fail and the mediators will report such failure to the Supreme Court.
So, mediation is only an attempt to solve the Ayodhya dispute. If may succeed or it may fail. It is not binding that some solution should definitely come out of it. So, there is no harm in trying to find a solution through mediation. Let a few more months be spent on a dispute which has taken some decades already.
Thus, mediation in Ayodhya is possible. Definitely possible. However, success of mediation is not guaranteed. It may or may not succeed. If this mediation fails, then ultimately the Supreme Court will decide the dispute on merits. And, if the mediation succeeds (with consent of all parties to the dispute), then it will be recorded in the Supreme Court order and it will become the court order.
In the matter of: Ganpat Bakaramji Lad V/s State of Maharashtra, Criminal Appeal No. 186/2013 (Bombay High Court, Date of Decision: 09.03.2018, Coram: R.K. Deshpande, S.B. Shukre & M.G. Giratkar, JJ.) it was held that:
“…if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorily responsible for any harm done as a result of the deceit…”
–The Inwood Test (Inwood Laboratories, Inc. V/s Ives Laboratories, Inc., 456 U.S. 844)
Electronic Commerce:
Electronic commerce is commerce which takes place online, that is, the purchase and sale of goods or services takes place through online platforms and not from physical brick and mortar shops, malls or kirana stores. In electronic commerce the goods are sold through online platforms where the products are displayed and offered for sale, and a customer who wishes to purchase the product, visits the website (online platform) and browses through the choices that are offered to him; the customer identifies the product, books the order, and upon delivery of the product, makes the payment.
Preface:
The scope of an administration suit is to collect the assets of the deceased to pay off the debts and other charges and to find out what is the residue of the estate available for distribution amongst the heirs of the deceased. A suit for partition is distinct from an administration suit. Though administration of the estate may ultimately after accounts are taken also entail ‘partition’, but where it is found that there is no need for administration and what is in effect sought is partition only, the court is entitled in exercise of discretion under Section 298 of the Indian Succession Act, 1925 (hereinafter referred to as the ‘ISA’) to refuse the grant of Letters of Administration and to relegate the parties to the remedy of partition.
Preface:
Section 238-A of the I&B Code, 2016 (hereinafter referred to as the ‘IBC’) was inserted by the Insolvency & Bankruptcy Code (Second Amendment) Act, 2018 with effect from 06.06.2018. Section 238-A of the IBC reads as under:
Preface:
Defamation means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse. According to Winfield, ‘defamation’ is the publication of statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person. It is “libel” if the statement be in permanent form and “slander” if it consists in significant words spoken or gestures. In the matter of: Parmiter V/s Coupland, 1840 (6) MLW 105, it was observed that, defamation means a publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule. Further, in the matter of: Myroft V/s Sleight, 1921 (37) TLR 646, it was observed that, a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has tendency to injure him in his office, profession or trade. In India, by virtue of report in the matter of: Manisha Koirala V/s Shashi Lal Nair & Ors, 2003 (2) BCR 136, following test was laid down in order to determine whether or not a particular statement is defamatory:
What happens when there is a mismatch of the signature or incomplete signature in the cheque? Can a Cheque dishonor case under Section 138 of the Negotiable Instruments Act, 1881 can be made out in a case where the signature was not matched and was incomplete?
