S.A.No.665 of 2019

Abdul Gafoor Rep. by its power agent R.Chidambaram …Appellant
Vs.
1. Abdul Razak Ummal Huda (died)
2. Nazer …Respondents

Cause title accepted vide order of court dated 01.02.2019 made in CMP No.9400 of 2005 in SA SR No.61109/04.

R2 brought on record as legal heir of the deceased Ummal Huda vide order of court dated 01.02.2019 made in CMP No.9401/05 in SA SR. No.61109/04.

Prayer:

Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 18.12.2003 in A.S.No.65 of 2003 on the file of District Court, Nagapattinam dismissing the judgment against the order dated 19.03.2003 in O.S.No.282 of 1998 on the file of Principal Subordinate Judge, Nagapattinam.

For Appellant : No appearance.

T.RAVINDRAN,J.

bga

JUDGMENT

Today, when the matter is called, there is no representation for the appellant. Appellant called absent.

2. In the light of the above position, the second appeal is dismissed for non prosecution. Consequently, connected miscellaneous petition, if any, is also dismissed.

13.06.2019

Index : Yes/No
Internet:Yes/No

bga

Copy to

1. District Court, Nagapattinam
2. Principal Subordinate Court, Nagapattinam.
3. The Section officer, V.R.Section, High Court, Madras

S.A.No.665 of 2019

The post Abdul Gafoor Vs. Abdul Razak appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 7630­7631 OF 2019
(Arising out of S.L.P.(C) Nos. 29205­29206 of 2015)

SMT. NARAYANAMMA & ANR. Etc. Etc APPELLANT(S)
VERSUS
SRI GOVINDAPPA & ORS. Etc. Etc RESPONDENT(S)

J U D G M E N T

B.R. GAVAI, J.

Leave granted.

2. The present appeals arise out of the common judgment and order passed by the Single Judge of the Karnataka High Court in Regular Second Appeal No. 1925 of 2008 and Regular Second Appeal No. 1834 of 2008 thereby dismissing both the appeals.

3. For the sake of convenience, the parties shall be referred hereinafter as per their status shown in the plaint before the trial court. The suit O.S. No. 93/1999 was filed by the plaintiff Govindappa, who is the son of Bale Krishnappa. Originally the suit property belonged to one Bale Venkataramanappa, who was the brother of Bale Krishnappa. Said Bale Venkataramanappa has entered into an agreement to sell with the plaintiff, specific performance of which is sought in the present suit. The son of the Bale Venkataramanappa, M.V. Nagaraj was defendant No. 1, who has been represented through Legal representatives in the appellate courts since deceased. The wife and daughter of Anjanappa, who was another son of Venkataramanappa are the defendant Nos. 2 & 3 to the suit respectively. The daughter and wife of Bale Venkataramanappa are defendant Nos. 4 & 5 to the suit respectively. The R.S.A. No. 1925/2008 is filed by the original defendant Nos. 4 & 5, who are daughter and wife of Bale Venkataramanappa. The R.S.A. No. 1834/2008 has been filed by the legal representatives of the original defendant No. 1, M.V. Nagaraj and the original defendant Nos. 2 & 3, who are wife and daughter of Anjanappa. The suit was filed inter alia contending that the defendants did not come forward to execute the sale deed in respect of the agreement to sell. After the notice was issued by the Civil Judge (Junior Division) & JMFC, Hoskote, the defendants appeared before the Court. However, they did not file the written statement. The power of attorney holder of the plaintiff is examined as PW­1. The plaintiff also examined two witnesses in support of his case, i.e., PW­2 and PW­3. He produced documentary evidence Exhibits P­1 to P­34 in support of his case. The defendants did not cross­examine the plaintiff. The trial court, upon appraisal of Exhibit P­1, i.e., the agreement to sell dated 15.05.1990, held that the suit property was granted in favour of the defendant and as per the grant certificate, there was a 15 years bar on alienation of the suit property. The period of the said bar was to expire on 13.10.1988. It was, therefore, held by the trial Judge that since the said agreement was executed during the non­alienation period of 15 years, the agreement was void and non­executable. It was held that since the said agreement was contrary to the statutory bar, it was void in law and as such the suit for specific performance of the contract was not maintainable.

4. Being aggrieved thereby, the plaintiff filed Regular Appeal No. 86 of 2004 before the Principal District & Session Judge, Bangalore. Before the appellate court, though the defendants had put in their appearance, the Advocate did not appear to argue the matter. The first appellate court held that the father of Original defendant No. 1, namely, Bale Venkataramanappa, had mortgaged the suit property by a registered mortgage deed on 23.04.1990. It further held that on 15.05.1990 he had also entered into an agreement to sell with the plaintiff. It was further held that, the entire sum of Rs. 46,000/­ agreed to be paid to Bale Venkataramanappa was received by him. It was further found that the plaintiff had already been put in possession of the suit property. The first appellate court held that, the reasoning of the trial court that the non­alienation clause prohibits alienation was not apt. On this reasoning, the appeal was allowed.

5. Being aggrieved by the judgment and order passed by the first appellate court, the original defendant Nos. 4 and 5 had filed Regular Second Appeal No. 1925 of 2008 whereas, legal representatives of defendant No. 1 and original defendant Nos. 2 and 3 have filed Regular Second Appeal No. 1834 of 2008. Two points were raised before the High Court on behalf of the defendants. Firstly, that the suit which was filed in the year 1999 for specific performance of agreement to sell entered into on 15.05.1990 was beyond limitation. Secondly, that in view of provisions of Section 61 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as “the Reforms Act”), the agreement was not enforceable. The High Court observed that, as a matter of fact, the trial court ought not to have framed such an issue. It further observed that, though in the suit for specific performance of contract it was necessary to frame the issue with regard to readiness and willingness of the plaintiff to perform his part of the contract along with other issues, neither the trial court nor the first appellate court had framed such an issue. According to the High Court, in the absence of the defendants neither filing the written statement nor contesting the suit, the finding as recorded by the first appellate court was correct in law. The High Court concurred with the finding of the first appellate court that since the entire amount was received by Bale Venkataramanappa, father of defendant No.1, and also from the recital of the agreement to sell, it was clear that the possession was also handed over. As such, the High Court held that the finding of the first appellate court was correct. Being aggrieved thereby, defendants have approached this Court.

6. Mr. Shailesh Madiyal, learned counsel appearing on behalf of the defendants (appellants herein), submitted that in view of the provisions of Section 61 of the Reforms Act, the predecessor­in­interest of the defendants, i.e., Bale Venkataramanappa could not have transferred the said land, as such, the agreement to sell was void in law and, therefore, not enforceable. He submitted that the finding as recorded by the trial Judge was correct in law, which ought not to have been interfered with by the first appellate court. It is further submitted that the High Court was also not correct in law in upholding the finding of the first appellate court.

7. The original plaintiff (respondent(s) herein), on the contrary, submitted that the provisions of Section 61 of the Reforms Act would prohibit only the sale, gift, exchange, mortgage, lease or assignment and would not prohibit an agreement to sell. It is submitted that once the period of restriction of 15 years is over, the agreement to sell, though executed during the period of 15 years, becomes enforceable in law. It is submitted that, in the present case, Bale Venkataramanappa had received the entire consideration and had also handed over the possession as per the agreement to sell. It is further submitted that, the pleadings in the plaint were not controverted by either filing written statement nor leading any evidence and in this view of the matter, the first appellate court and the High Court were justified in decreeing the suit.

8. The facts in the present case are not in dispute. On 20.10.1976, the suit property, i.e., 1 acre 6 guntas bearing Survey No. 57 situated at Mutkur Village, Angondanahalli Hobli, Hoskote Taluk, Bangalore District, was given as a grant in favour of Bale Venkataramanappa. The said grant was under the provisions of the Reforms Act. On 13.09.1983, the premium was paid by Bale Venkataramanappa and the grant was confirmed in his favour with a non­alienation clause of 15 years. On 15.09.1983, there was a mutation entry in the revenue records entering the name of said Bale Venkataramanappa with an endorsement that the land shall not be alienated for a period of 15 years. On 23.04.1990, Bale Venkataramanappa, by a registered mortgage deed, mortgaged the suit land in favour of the plaintiff for a sum of Rs. 20,000/­. The mortgage deed recites about the receipt of the entire mortgaged amount by Bale Venkataramanappa. Under the mortgage deed, Bale Venkataramanappa had agreed to repay the loan within a period of one year. However, within a period of one month, Bale Venkataramanappa executed an agreement to sell dated 15.05.1990 in favour of the plaintiff. The agreement to sell recites that he was in need of money for his legal necessities and to repay his hand loans and for his domestic needs and, therefore, he had agreed to sell the suit property for a sum of Rs. 46,000/­. He acknowledges the receipt of entire amount of consideration, i.e., Rs. 46,000/­. The recital in the agreement to sell reads that at the time of execution of the agreement, the possession of the suit property is handed over to the plaintiff. Further, the recital reads that the plaintiff shall take the consent of the officers of the Tribunal or the concerned officers at his own cost for transferring the property in the name of the plaintiff.

9. It could thus be seen that, initially the property was mortgaged on 23.04.1990, and within a period of one month the agreement to sell is executed. At the time of the agreement itself, the entire consideration amount is said to have been received by Bale Venkataramanappa and also the possession is handed over to the plaintiff.

10. It appears, that there were also parallel proceedings before the revenue authorities. After the death of Bale Venkataramanappa, the plaintiff filed an application on 12.05.1997 before the Tehsildar, Hoskote, for mutating his name in place of Bale Venkataramanappa. The Tehsildar, without any notice, carried out the mutation and entered the name of the plaintiff in the revenue records. The defendants challenged the same before the Assistant Commissioner, Doddabalapura Division. The said appeal was allowed on 27.06.2008. Accordingly, the revenue records were corrected and the defendants’ names were entered on 24.10.2009. The said Order came to be challenged by the plaintiff before the High Court by way of Writ Petition Nos. 22243­22244 of 2011. The High Court vide Order dated 26.07.2011, dismissed the said petitions.

11. The short question that arises for consideration in the present appeals is, as to whether the agreement to sell dated 15.05.1990 executed by Bale Venkataramanappa in favour of the plaintiff would be enforceable in law or not.

12. For appreciating the said issue, it would be necessary to refer to Section 61 of the Reforms Act, which reads thus:

“61. Restriction on transfer of land of which tenant has become occupant.—

(1) Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this Chapter shall, within fifteen years from the date of the final order passed by the Tribunal under sub­section (4) or sub­section (5) or sub­section (5A) of section 48A be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder’s joint family,

(2) Notwithstanding anything contained in sub­section (1), it shall be lawful for the occupant registered as such or his successor­in­title to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, a financial institution, a co­ operative land development bank, a co­operative society or a company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty one per cent of the paid­up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both for development of land or improvement of agricultural practices; or for raising educational loan to prosecute the higher studies of the children of such person and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in the payment of such loan.

Explanation. – For the purpose of this sub­section, “Higher Studies” means the further studies after Pre­ university Examination or 12th Standard Examination conducted by CBSE or ICSE or any Diploma courses.

(3) Any transfer or partition of land in contravention of Sub­section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77.”

13. A perusal of the said provision would clearly show that, notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under the said Chapter shall, within 15 years from the date of the final order passed by the Tribunal under sub­section (4) or sub­ section (5) or sub­section (5­A) of Section 48­A of the Reforms Act be transferred by sale, gift, exchange, mortgage, lease or assignment. However, the land may be partitioned among members of the holders of the joint family. No doubt, that sub­ section (2) of Section 61 of the Reforms Act permits the registered occupant or his successor­in­title, to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, a financial institution, a co­operative land development bank, a co­operative society or a company as defined in Section 3 of the Companies Act, 1956 in which not less than 51% of the paid­up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both. However, such a loan can be taken only for the purpose of development of land or improvement of agricultural practices or for raising educational loan to prosecute higher studies of the children of such person. It further provides that, in the event of such a person making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land be attached and sold and the proceeds to be utilised in the payment of such loan. Sub­section (3) of the said Section specifically provides that any transfer or partition of land in contravention of sub­ section (1) shall be invalid and such land shall vest in the State Government free, from all encumbrances and shall be disposed in accordance with the provisions of Section 77 of the Reforms Act.

14. This Court in the case of Kedar Nath Motani and Ors. vs. Prahlad Rai and Ors.1 had an occasion to consider the question of application of the maxims ex turpi causa non oritur actio and ex dolo malo non oritur actio. This Court has referred to various English judgments in paragraphs 11, 12 and 14, which read thus:

1 (1960) 1 SCR 861

“11. Coming now to the question whether the appellants’ suit was rightly dismissed by the High Court on the application of the maxim, ex turpi causa etc., we have first to see what are the specific facts on which this contention is based. The case of the appellants was that the property was taken benami in the names of Prahlad Rai and others to avoid the implication of clause 16. In making the application to the Bettiah Raj the signatures of Prahlad Rai and others were made by Radhumal or someone under his instructions, because the relationship between Radhumal, Prahlad Rai and others was so intimate that it was considered unnecessary to trouble them. Inasmuch, as the matter was brought to the notice of the Assistant Manager of the Court of Wards, all these facts were capable of being investigated, including the making of the signatures by Radhumal. No doubt, the making of the signatures of another person without his consent, express or implied, is an offence under the ordinary law, but the intention was not so much to forge the signatures but to present the application in the names of those persons. However it be, we proceed on the assumption that there was some illegality committed by Radhumal in approaching the Bettiah Raj and also in the execution of the B.H. forms, which were also signed with the names of these persons. The question is whether this illegality is sufficient to non­suit the plaintiffs on the application of the maxim.

12. The law was stated as far back as 1775 by Lord Mansfield in Holman v. Johnson, (1775) 1 Cowp 341, 343 : 98 ER 1120, 1121, in the following words:

“The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.”

There are, however, some exceptions or “supposed exceptions” to the rule of turpi causa. In Salmond and William on Contracts, four such exceptions have been mentioned, and the fourth of these exceptions is based on the right of restitutio in integrum, where the relationship of trustee and beneficiary is involved. Salmond stated the law in these words at p. 352 of his Book (2nd Edn.):

“So if A employs B to commit a robbery, A cannot sue B for the proceeds. And the position would be the same if A were to vest property in B upon trust to carry out some fraudulent scheme: A could not sue B for an account of the profits. But if B, who is A’s agent or trustee, receives on A’s account money paid by C pursuant to an illegal contract between A and C the position is otherwise and A can recover the property from B, although he could not have claimed it from C. In such cases public policy requires that the rule of turpis causa shall be excluded by the more important and imperative rule that agents and trustees must faithfully perform the duties of their office.”

Williston in his Book on Contracts (Revised Edn.), Vol. VI, has discussed this matter at p. 5069, para 1785 and in paras 1771 to 1774, he has noted certain exceptional cases, and has observed as follows:

“If recovery is to be allowed by either partner or principal in any case, it must be where the illegality is of so light or venial a character that it is deemed more opposed to public policy to allow the defendant to violate his fiduciary relation with the plaintiff than to allow the plaintiff to gain the benefit of an illegal transaction.”

Even in India, certain exceptions to the rule of turpi causa have been accepted. Examples of those cases are found in Palaniyappa Chettiar v. Chockalingam Chettiar (1920) ILR 44 Mad 334] and Bhola Nath v. Mul Chand, (1903) ILR 25 All 639.

14. Recently, the Court of Appeal in Bowmakers Ltd. v. Barnet Instruments, Ld. (1945) 1 KB 65] reviewed the law on the subject, and laid down that every illegality did not entitle the Court to refuse a judgment to a plaintiff. Du Parcq, L.J., observed as follows:

“In our opinion, a man’s right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them, or has converted them to his own use, even though it may appear either from the pleadings, or in the course of the trial, that the chattels in question came into the defendant’s possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim.”

We are aware that Prof. Hamson has criticised this case in (1949) 10 Cambridge Law Journal, 249, and has forborne its application, except in the clearest possible circumstances. The law has been also considered by Pritchard, J., in Bigos v. Bousted (1951) 1 All ER 92, where all the authorities are referred to.”

15. The three­Judge Bench of this Court, after referring to the aforesaid judgments, speaking through M. Hidayatullah, J. (as His Lordship then was), observes thus:
“15. The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Williston and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff’s conduct, and he should not be allowed to circumvent the illegality by resorting to some subterfuge or by mis­stating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail.”

16. It could thus be seen, that this Court has held that the correct position of law is that, what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. This Court further held, that if the illegality is trivial or venial and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. It has further been held, that a strict view must be taken of the plaintiff’s conduct and he should not be allowed to circumvent the illegality by resorting to some subterfuge or by misstating the facts. However, if the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose is achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail.

17. Subsequently, another three­Judge Bench of this Court in Immani Appa Rao and Ors. vs. Gollapalli Ramalingamurthi and Ors.2 again had an occasion to consider the issue with regard to applicability of the aforesaid two maxims. This Court speaking through P.B. Gajendragadkar, J. (as His Lordship then was) observed thus:
2 (1962) 3 SCR 739

“12. Reported decisions bearing on this question show that consideration of this problem often gives rise to what may be described as a battle of legal maxims. The appellants emphasised that the doctrine which is pre­ eminently applicable to the present case is ex dolo malo non oritur actio or ex turpi causa non oritur actio. In other words, they contended that the right of action cannot arise out of fraud or out of transgression of law; and according to them it is necessary in such a case that possession should rest where it lies in pari delicto potior est conditio possidentis; where each party is equally in fraud the law favours him who is actually in possession, or where both parties are equally guilty the estate will lie where it falls. On the other hand, Respondent 1 argues that the proper maxim to apply is nemo allegans suam turpitudinum audiendum est, whoever has first to plead turpitudinum should fail; that party fails who first has to allege fraud in which he participated. In other words, the principle invoked by Respondent 1 is that a man cannot plead his own fraud. In deciding the question as to which maxim should govern the present case it is necessary to recall what Lord Wright, M.R. observed about these maxims in Berg v. Sadler and Moore, (1937) 2 KB 158 at p. 62. Referring to the maxim ex turpi causa non oritur actio Lord Wright observed that “this maxim, though veiled in the dignity of learned language, is a statement of a principle of great importance; but like most maxims it is much too vague and much too general to admit of application without a careful consideration of the circumstances and of the various definite rules which have been laid down by the authorities”. Therefore, in deciding the question raised in the present appeal it would be necessary for us to consider carefully the true scope and effect of the maxims pressed into service by the rival parties, and to enquire which of the maxims would be relevant and applicable in the circumstances of the case. It is common ground that the approach of the Court in determining the present dispute must be conditioned solely by considerations of public policy. Which principle would be more conducive to, and more consistent with, public interest, that is the crux of the matter. To put it differently, having regard to the fact that both the parties before the Court are confederates in the fraud, which approach would be less injurious to public interest. Whichever approach is adopted one party would succeed and the other would fail, and so it is necessary to enquire as to which party’s success would be less injurious to public interest.

13. Out of the two confederates in fraud Respondent 1 wants a decree to be passed in his favour and that means he wants the active assistance of the Court in reaching the properties possession of which has been withheld from him by Respondent 2 and the appellants. Now, if the defence raised by the appellants is shut out Respondent 1 would be entitled to a decree because there is an ostensible deed of conveyance which purports to convey title to him in respect of the properties in question; but, in the circumstances, passing a decree in favour of Respondent 1 would be actively assisting Respondent 1 to give effect to the fraud to which he was a party and in that sense the Court would be allowed to be used as an instrument of fraud, and that is clearly and patently inconsistent with public interest.

14. On the other hand, if the Court decides to allow the plea of fraud to be raised the Court would be in a position to hold an enquiry on the point and determine whether it is a case of mutual fraud and whether the fraud intended by both the parties has been effectively carried out. If it is found that both the parties are equally guilty and that the fraud intended by them has been carried out the position would be that the party raising the defence is not asking the Court’s assistance in any active manner; all that the defence suggests is that a confederate in fraud should not be permitted to obtain a decree from the Court because the document of title on which the claim is based really conveys no title at all. It is true that as a result of permitting Respondent 2 and the appellants to prove their plea they would incidentally be assisted in retaining their possession; but this assistance is of a purely passive character and all that the Court is doing in effect is that on the facts proved it proposes to allow possession to rest where it lies. It appears to us that this latter course is less injurious to public interest than the former.”

18. This Court held that, which principle is to be applied in the facts of the case would depend upon the question, as to which principle is more consistent with public interest. The Court finds that, when both the parties before the Court are confederates in the fraud, the Court will have to find out which approach would be less injurious to public interest. The Court observed that, whichever approach is adopted, one party would succeed and the other would fail and, therefore, it is necessary to enquire as to which party’s success would be less injurious to public interest. The Court in the facts of the said case finds that if the decree was to be passed in favour of respondent No. 1 (who was the plaintiff), it would be actively assisting respondent No. 1 to give effect to the fraud to which he was a party and it has been held that in that sense the Court would be allowed to be used as an instrument of fraud and that is clearly and patently inconsistent with public interest.

19. It has further been held, that if both the parties are equally guilty and the fraud intended by them had been carried out, the position would be that, the party raising the defence is not asking the Court’s assistance in any active manner. It has been held, that all the defence suggested is that a confederate in fraud shall not be permitted to obtain a decree from the Court because the documents of title, on which the claim is based really conveys no title at all. In the facts of the said case, it was held, that though the result thereof would be assisting the defence therein to retain their possession, for such an assistance would be purely of passive character and all that the Court would do in effect is that on the facts proved, it proposes to allow possession to rest where it lies. It has been held that, latter course appears to be less injurious to public interest than the former one. This Court in the said judgment has digested the English law on the issue in the following paragraphs, which read thus:

“19. In support of the contrary view reliance is usually placed on an early English decision in Doe, Dem. Roberts against Roberts, Widow, 106 ER 401 . In that case it was held that “no man can be allowed to allege his own fraud to avoid his own deed; and, therefore, where a deed of conveyance of an estate from one brother to another was executed, to give the latter a colourable qualification to kill game. The document was as against the parties to it valid and so sufficient to support an ejectment for the premises”. In dealing with the question raised Bayley, J. observed “by the production of the deed, the plaintiff established a prima facie title; and we cannot allow the defendant to be heard in a court of justice to say that his own deed is to be avoided by his own fraud;” and Holroyd, J. added that “a deed may be avoided on the ground of fraud, but then the objection must come from a person neither party nor privy to it, for no man can allege his own fraud in order to invalidate his own deed”.

20. This decision has, however, been commented on by Taylor in his Law of Evidence. According to Taylor “it seems now clearly settled that a party is not estopped by his deed from avoiding it by proving that it was executed for a fraudulent, illegal or immoral purpose [Taylor’s “Law of Evidence”, Vol. 11th, Edn. p. 97, para 93]”. The learned author then refers to the case of Roberts, 106 ER 401 and adds “in the subsequent case of Prole v. Wiggins, (1837) 3 Bing. NC 235 : 6 LJCP 2 : 43 R.R. 621, Sir Nicholas Tindal observed that this decision rested on the fact that the defence set up was inconsistent with the deed”. Taylor then adds that “the case, however, can scarcely be supported by this circumstance, for in an action of ejectment by the grantee of an annuity to recover premises on which it was secured, the grantor was allowed to show that the premises were of less value than the annuity, and consequently, that the deed required enrolment, although he had expressly covenanted in the deed that the premises were of greater value…” According to the learned author “the better opinion seems to be that where both parties to an indenture either know, or have the means of knowing, that it was executed for an immoral purpose, or in contravention of a statute, or of public policy, neither of them will be estopped from proving those facts which render the instrument void ab initio; for although a party will thus in curtain cases be enabled to take advantage of his own wrong, yet this evil is of a trifling nature in comparison with the flagrant evasion of the law that would result from the adoption of an opposite rule” (p. 98). Indeed, according to Taylor, “although illegality is not pleaded by the defendant nor sought to be relied upon by him by way of defence, yet the court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action ex turpi causa non oritur actio. No polluted hand shall touch the pure fountain of Justice” (p. 93).

21. To the same effect is the opinion of Story [Story’s Equity Jurisprudence, Vol. I, s. 421; English edition by Randall, 1920, s. 298.] : “In general, where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or mala in se, courts of equity following the rule of law as to participators in a common crime will not interpose to grant any relief, acting upon the known maxim in pari delicto potior est conditio defendentis et possidentis. The old cases often gave relief, both at law and in equity, where the party would otherwise derive an advantage from his inequity. But the modern doctrine has adopted a more severely just and probably politic and moral rule, which is, to leave the parties where it finds them giving no relief and no countenance to claims of this sort.”

20. It could thus be seen that, although illegality is not pleaded by the defendant nor is relied upon by him by way of defence, yet the court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action ex turpi causa non oritur actio. It has been held, that no polluted hand shall touch the pure fountain of justice. It has further been held, that where parties are concerned in illegal agreements or other transactions, courts of equity following the rule of law as to participators in common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potior est conditio defendetis et possidentis.

21. In the case of Nathu Prasad vs. Ranchhod Prasad and Ors.3 the three­Judge Bench of this Court had an occasion to consider somewhat similar provisions which read thus:

“2. Section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) provides:

“No Pakka tenant shall sub­let for any period whatsoever any land comprised in his holdings except in the cases provided for in Section 74.

Explanation.— * * *.”

3 (1969) 3 SCC 11

Section 74 deals with sub­letting by disabled persons. Since the plaintiff is not a disabled person, the section need not be read. Section 75 provides:

“A sub­lease of the whole or any part of the holding of a Pakka tenant effected properly and legally prior to the commencement of this Act shall terminate after the expiry of the period of sub­lease or 4 years after the commencement of this Act, whichever period is less.”

Section 76 provides:

“(1) If the sub­lessee does not hand over possession of the land sub­let to him after the sub­lease ceases to be in force under Sections 74 and 75 to the lessor or his legal heir … he shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of this Act. (2) * * *.”

Section 78 provides:

“(1) Any person who in contravention of the provisions of this Act, obtains possession of any land by virtue of a bequest, gift sale, mortgage or sub­lease, or of any agreement purporting to be a bequest, gift, sale, mortgage or sub­lease shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of Section 58.”

In the said case, the plaintiff/appellant before the Supreme Court was a recorded pattedar tenant and had granted a sub­ lease of land to respondent Nos. 1 and 2 for five years. The suit was filed on the ground that sub­lease was in contravention of Section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) and that the said respondents had trespassed in the land. The trial court had decreed the suit. The first appellate court had also confirmed the same. However, the same was reversed by the High Court in the second appeal. Allowing the appeal and reversing the judgment of the High Court, this Court held that a person inducted as a sub­lessee contrary to the provisions of Section 78 of the Tenancy Act did not acquire any right under a contract of sub­letting and his possession was not protected.

22. We have to apply the principles of law as deduced by this Court in the case of Kedar Nath and Immani Appa Rao (supra), to the facts of the present case.

23. The transaction between the late Bale Venkataramanappa and the plaintiff is not disputed. Initially the said Bale Venkataramanappa had executed a registered mortgage deed in favour of the plaintiff. Within a month, he entered into an agreement to sell wherein, the entire consideration for the transfer as well as handing over of the possession was acknowledged. It could thus be seen, that the transaction was nothing short of a transfer of property. Under Section 61 of the Reforms Act, there is a complete prohibition on such mortgage or transfer for a period of 15 years from the date of grant. Sub­section (1) of Section 61 of the Reforms Act begins with a non­obstante clause. It is thus clear that, the unambiguous legislative intent is that no such mortgage, transfer, sale etc. would be permitted for a period of 15 years from the date of grant. Undisputedly, even according to the plaintiff, the grant is of the year 1983, as such, the transfer in question in the year 1990 is beyond any doubt within the prohibited period of 15 years. Sub­section (3) of Section 61 of the Reforms Act makes the legislative intent very clear. It provides, that any transfer in violation of sub­section (1) shall be invalid and it also provides for the consequence for such invalid transaction.

24. Undisputedly, both, the predecessor­in­title of the defendant(s) as well as the plaintiff, are confederates in this illegality. Both, the plaintiff and the predecessor­in­title of the defendant(s) can be said to be equally responsible for violation of law.

25. However, the ticklish question that arises in such a situation is: “the decision of this Court would weigh in side of which party”? As held by Hidayatullah, J. in Kedar Nath Motani (supra), the question that would arise for consideration is as to whether the plaintiff can rest his claim without relying upon the illegal transaction or as to whether the plaintiff can rest his claim on something else without relying on the illegal transaction. Undisputedly, in the present case, the claim of the plaintiff is entirely based upon the agreement to sell dated 15.05.1990, which is clearly hit by Section 61 of the Reforms Act. There is no other foundation for the claim of the plaintiff except the one based on the agreement to sell, which is hit by Section 61 of the Act. In such a case, as observed by Taylor, in his “Law of Evidence” which has been approved by Gajendragadkar, J. in Immani Appa Rao (supra), although illegality is not pleaded by the defendant nor sought to be relied upon him by way of defence, yet the Court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action ex turpi causa non oritur actio i.e. No polluted hand shall touch the pure fountain of justice. Equally, as observed in Story’s Equity Jurisprudence, which again is approved in Immani Appa Rao (supra), where the parties are concerned with illegal agreements or other transactions, courts of equity following the rule of law as to participators in a common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potior est conditio defendentis et possidentis.

26. It could thus be seen that, the trial Judge upon finding that the agreement of sale was hit by Section 61 of the Reforms Act, had rightly dismissed the suit of the plaintiff.

27. Now, let us apply the another test laid down in the case of Immani Appa Rao (supra). At the cost of repetition, both the parties are common participator in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao (supra), if the decree is granted in favour of the plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the defendants, no doubt that they would stand benefited even in spite of their predecessor­in­title committing an illegality. However, what the court would be doing is only rendering an assistance which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao (supra), the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to public interest than the former.

28. In the result, the appeals deserve to be allowed and are accordingly allowed. The judgment and order passed by the High Court of Karnataka dated 08.06.2015 and the Order passed by the Fast Track Court­III, Bangalore Rural District, Bangalore, dated 17.06.2008 are quashed and set aside. The order dated 23.01.2004 dismissing the suit passed by the trial court is upheld.

29. The parties shall bear their own costs.

…………………..J.
[ARUN MISHRA]
………………….J.
[M. R. SHAH]
………………….J.
[B.R. GAVAI]

NEW DELHI;
SEPTEMBER 26, 2019.

The post Naraynamma And Anr Etc Etc Vs. Govindappa And Ors. Etc Etc appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1266 OF 2010
MAHENDRAN ………APPELLANT
Versus
THE STATE OF TAMIL NADU ………RESPONDENT
WITH
CRIMINAL APPEAL NO. 1260 OF 2010
RAVI @GOPU AND ORS. ………APPELLANTS
Versus
STATE REP. BY THE DEPUTY SUPERINTENDENT OF POLICE ………RESPONDENT
J U D G M E N T

HEMANT GUPTA, J.

The Criminal Appeal No. 1266 of 2010 preferred by Mahendran (Accused No. 3), and Criminal Appeal No. 1260 of 2010 preferred by Ravi (Accused No. 1), Singaravelu (Accused No. 2), Iyappan (Accused No. 4), Rajendran (Accused No. 5), Selvaraj (Accused No. 6), Karunakaran (Accused No. 7), Arunachalam (Accused No. 8) and Sundaramoorthy (Accused No. 9) arise out of a common judgment by the Madurai Bench of the Madras High Court on 26.09.2008. The High Court has acquitted Mohan (Accused No. 10), Ravi (Accused No. 12), P. Mohan (Accused No. 13), Palanivel Thevar (Accused No. 14) and Kannan (Accused No. 15) from all charges by granting them benefit of doubt. The accused are referred to with reference to their status before the trial court.

2. The prosecution had put on trial twenty-four persons for various offences, but the learned trial court found the charges proved only against Accused Nos. 1-10 and 12-15 and sentenced to imprisonment as per the order passed in respect of the offences proved against them, whereas, Manivasagam (Accused No.11), Ganapathy (Accused No. 16) Muruganandam (Accused No. 17), Saravanan (Accused No. 18), Kathiah (Accused No. 19), Maiyilaiyam (Accused No. 20), Subbaian (Accused No. 21), Santhanam (Accused No. 22), Mariappan (Accused No. 23) and Kannan (Accused No. 24) were acquitted.

3. Learned counsel for the appellants states that Accused Nos. 8 and 9 have died during the pendency of the appeals. Resultantly, the appeals survive in respect of Accused Nos. 1 to 7 only. One of the accused Balakrishnan had died even before the Charge-sheet could be filed, therefore, was not included in the report filed.

4. Prosecution case was set in motion on the basis of statement of PW1-Ganesamoorthy, resident of Kumbakonam and son-in-law of Murugaiyan-deceased. He stated that on 12.03.1994, he along with his father went to Nangarari, but due to darkness, they decided to stay in his father-in-law’s house at Neikuppai.

5. He stated that his father-in-law shared the dispute between him and the Caste Hindus that evening and that dispute was getting intensified and that someone had set fire on the thatched hut in the Pilaiyar street. He also said that a Panchayat was going to be conducted in this regard but he had not informed the police. He stated that on 13.03.1994 at about 7.30 AM, he heard noise at the place of residence when his father had gone to have tea. He and his father-in-law came outside to see what happened. At that stage, A-1 to A-9 and Balakrishnan (since dead) son of Raamaiya Konur were standing with stones and aruvals (sickles). They exhorted that till such time you are alive, you will not allow caste Hindus to live and we won’t leave you alive. At that stage, Ravi (A-1) poured the kerosene from tin container and Singaravelu (A-2) set fire to the roof. The hut was set ablaze. His father-in-law ran towards backside of the house, frightened of his life. He also ran behind him. He was questioned as to why he was running? Murugaiyan ran towards barber Mahalingam’s house on School street. But the accused hit on the head of Murugaiyan with the sickle, inflicting injuries on the head, hand, leg and back. His father-in-law, Murugaiyan was lying in the pool of blood in front of the house of PW13-Mahalingam having injuries on both legs and shoulders. About 100 persons of caste Hindus were standing around Murugaiyan. At that time PW3-Ramesh and PW2-Raja came but they escaped after being hit with stones. He also escaped without being seen by anybody. On the basis of such statement, FIR Ext.P-13 was lodged at about 8.45 AM against ten accused.

6. PW19-Ramakrishnan is the retired Police Inspector who recorded statement on the basis of which First Information Report was lodged. He was entrusted with the investigations. He sent FIR to the Judicial Magistrate, Thiruvarur at 09.30 A.M. He then went to the place of occurrence in the Village Neikuppai. The sketch Ex.P.18 was prepared of a place in front of Murugaiyan’s house and prepared an observation Memo Ex.P.2. He also prepared sketch Ex.P.19 and observation Memo Ex.P.3 after seeing the place where the dead body was lying at 10.20 hours on that day. He prepared inquest report Ex.P.30 and sent the body for post-mortem. He associated the informant PW1- Ganesamoorthy, PW2- Raja, PW3-Ramesh, PW4-Ravanan and PW5- Lakshmi, wife of the deceased, for investigations and recorded their statements. He also associated PW6-Sankaran and Mariappan(A-23) and recorded their statements. He recovered burnt bamboo piece, a burnt coconut leaf lattice, one burnt polyester sari in red, blue, white and green colours, a burnt sprayer nozzle, and some burnt paddy as well as one plank taken from the burnt cart at about 1615 hours, recorded in Ex.P.4. The materials mentioned therein Ex.P.4 are M.Os. 10 to 15. He also took in possession the blood stains from the seating area in west of the house of Mahalingam; a sample earth without blood stain scratched from the above area; blood-stained earth was taken from the place where the dead body of Murugaiyan was lying as well as earth without blood stain was taken from the same place. He also associated some other witnesses to complete investigations.

7. It was on 13.3.1994, ten accused initially mentioned by the informant Ganesamoorthy were arrested. The disclosure statement Ex.P.6 was recorded of accused Ravi (A-1), and on the basis of disclosure statement five sickles were recovered from A-1 to A-5 and Balakrishnan, whereas, bamboo sticks of different lengths were recovered from A-6 to A-9. On 15.03.1994, he arrested other accused who stood acquitted, therefore, not relevant for the purpose of present appeals. In the cross- examination, he denied that the complaint Ex. P.1 was not registered at the stated time and that the same was prepared after discussion and that the FIR Ex.P.13 was sent to Court on that day at around 4.00 PM. He deposed that deceased Murugaiyan belongs to Scheduled Caste and denied that the dead body was lying in the seating area near the Manickam’s house. He also associated PW13-Mahalingam, his wife Theivakani, daughter Raji, son Selvam in the course of investigations and recorded their statements. But he stated that he had not gone to Manickam’s house as mentioned by these persons. On completion of the investigations, Charge-sheet was filed. The accused pleaded not guilty and claimed trial.

8. The post-mortem on the dead body of Murugaiyan was conducted by PW17-Dr. Razool. He found the following external injuries on the person of the deceased: –
“1. 6” long Elliptical, Horizontal cut injury with clear cut edges of skin, extending from angle of left mandible, cross left neck, up to lateral process of spine. “C2”, without involving mastoid Bone on clearing dark blood clots. The sterno cleido Mastoid muscles and jugular veins & carotid arteries are found cut.
2. 1” below injury No.(1) a similar cut injury horizontal, extending from Adam’s apple, across left of neck up to c 5 spine, lateral process in the back “6” long its depth extends, cutting the sterno-Mastoid muscles and jugular veins and common carotid artery with profuse dark blood oozing.
3. Similar cut injury 3” long horizontal and 1” below injury No. 2 over root of neck involving clavicle bone left.
4. Irregular edged 2” x 1” x ½“ serrated edged abrasion over left scapula.
5. 10” long lacerated injury with clear edges very superficial running obliquely across left breast to right ribs with two packets on injury 1” deep lying on the same line with 3” gap in between. This injury does not involve heart, lungs and abdominal viscera.
6. Cut injury, 4” long horizontal and lateral side of left thigh, 4” above knee joint just embracing femur bone.
7. Below left knee joint similar injury 4” long over lateral side of leg, completely cutting away the Tibia and Fibula bones.
8. 2” below injury No. (7), 3” long cut injury over lateral side, 2” deep.
9. Complete severing of left wrist separating the hand from its joints, cutting the radial and ulnar arteries with only ½ “ broad-skin bridging the gap.
10. They only injury found on the right side of body is 6” long cut injury, running over the shoulder from scapula to anterior of shoulder cutting the tender insertion of biceps muscles chopping of the head of humerus bone.

OTHERS:
Brain pale not liquefied. Skull bone, spinal, spinal column not fractured. Stomach, spleen, liver, kidney and lungs are pale, but not injured. Heart no injury. All the left chambers are empty with little clots.”

The cause of death was injury Nos. 1 and 2 due to severing of left carotid artery and jugular veins, leading to profuse haemorrhage, hypo- volume shock and death in sequence. He produced his post-mortem report as Ex.P.14.

9. PW17-Dr. Razool also examined informant PW1-Ganesamoorthy on 13.3.1994 at 6.00 PM alleged to be assaulted by stones at 7.30 AM on the same day. The following injuries were reported:
“1. Contusion left ear lobe with tenderness.
2. Abrasion with edema 1” diameter nape of neck.”

10. PW17 Dr. Razool also examined PW2-Raja and PW3-Ramesh on the same day and found the following injuries respectively:
“1. ½ ” diameter recent abrasion with surrounded edema over right eye brow.”
“1. Recent contusion with blood clot ½“ diameter abrasion over left crown of head.
2. Tenderness over left half muscles.”

11. To prove the allegations against the accused, the prosecution examined PW1-Ganesamoorthy, the informant and son-in-law of the deceased, PW2-Raja, PW3-Ramesh, PW5-Lakshmi wife of the deceased and PW13-Mahalingam, all residents of Village Neikuppai, PW4-Ravanan resident of Narsingampettai. Both the Courts have relied upon the statements of PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh to convict the appellants.

12. Learned counsel for the appellants argued that PW1- Ganesamoorthy is not a witness of occurrence, but has been introduced falsely. In support of the argument that the witness was not present at the place of the occurrence, the following aspects were pointed out:-
a). It is unbelievable that son-in-law will stay with his in-laws more so when his own village is around 15 Kms away only.
b). In his first statement Ex.P.1, he has not stated that he got injuries with the stones pelted by the aggressors, whereas, he has tried to prove his presence on the basis of self-inflicted injuries which were found not to be more than one hour old by Dr. Razool, who examined him at around 6.20 PM.
c). The FIR is ante-timed as there is no reason as to why FIR was delivered to the Judicial Magistrate at 4.00 PM but not soon after it was dispatched around 9.30 AM. It is unbelievable that the constable would not know that the Magistrate would not come to the Court being Sunday as he could have delivered the FIR at the residence of the Officer.
d). PW1-Ganesamoorthy has given parentage of all the ten accused in the statement Ext.P.1, but in Court he could not disclose the parentage of A4, A6 and Balakrishnan (since died). Thus, FIR was lodged after consultation, therefore, the delay in the receipt of FIR by the Magistrate

13. It is also argued that the place of occurrence is opposite house of Manickam as is deposed by PW13-Mahalingam, but the prosecution has shifted the place of occurrence near the house of Mahalingam. Since the place of occurrence itself has not been proved on the statement of PW13 Mahalingam, the prosecution story in respect of the manner of occurrence cannot be accepted. It is stated that PW1-Ganesamoorthy is not reliable and truthful witness, therefore, unworthy of reliance.

14. It is also argued that PW1-Ganesamoorthy, PW2-Raja and PW3- Ramesh have roped in many other accused during the course of investigations and that such part of the statement has not been found to be a truthful version resulting into acquittal of accused Nos. 10, 12, 13, 14 and 15 in appeal, whereas, some other accused were acquitted by the learned trial court itself. It is thus argued that the statements of witnesses are unreliable and lack credibility, therefore, such statements cannot be relied upon for the conviction of the appellants.

15. Learned counsel for the appellants relies upon judgments reported in Ram Laxman vs. State of Rajasthan1, Noushad alias Noushad Pasha and Others vs. State of Karnataka2 and Suraj Mal Vs. State (Delhi Administration)3 to contend that if the testimony of the witness is found to be unreliable in respect of part of the statement, then the other part of the statement cannot be made basis to convict the accused.

16. It is argued that Ravi (A-1) is said to have suffered a disclosure statement under Section 27 of the Indian Evidence Act, 1872 as per the statement of PW8-Veeraiyan and got recovered five sickles, but, the Investigating Officer has distributed the recovery to the five different accused.

17. The explanation of the prosecution witnesses that doctor was not available at Kudavasal stands controverted on the basis of statement of DW4-Assistant Doctor Balakumaravelu in Kudavasal Government Hospital who has deposed that the doctor was available. Therefore, medical examination in respect of injuries which in opinion of doctor is not more than one hour earlier totally discredits the prosecution story.

18. The story of receipt of injuries by the witnesses PW1- Ganesamoorthy, PW2-Raja and PW3-Ramesh is highly doubtful as their blood-stained clothes were given to the Investigating Officer after two days, whereas, if they had received injuries on the date of occurrence, it was mandatory for the prosecution to take into possession of the blood- stained clothes on the day of occurrence itself.

19. It is also argued that PW5-Lakshmi wife of the deceased has named Ravi (A-1) and Singaravelu (A-2) only as the persons who had poured kerosene and lit the match stick but has not deposed in respect of role of the other accused. Thus, in view of the absence of any overt act attributed to the appellants other than A-1 and A-2, their conviction for offences under Section 302 IPC and other offences are not made out and they can at best be punished for the offence under Section 326 read with Section 149 IPC. The reliance is placed upon the Supreme Court judgment reported as Joseph vs. State, Represented by Inspector of Police4 and Najabhai Desurbhai Wagh vs. Valerabhai Deganbhai Vagh and Others5. Learned counsel for the appellants also argued that the prosecution has failed to prove the common object so as to attract the offence under Section 149 IPC.

20. On the other hand, learned counsel appearing for the State pointed out that much stress has been laid on shifting the place of occurrence from near the house of Manickam to near the house of PW13-Mahalingam. It is argued that it is factually incorrect and the discrepancy is minor, if any. The reliance is placed upon statement of PW2-Raja who deposed that houses of Mahalingam and Manickam are in the same street, one facing north and the other facing south meaning thereby, facing to each other and they are located half a furlong from each other. Therefore, the place of occurrence is in the street, in which houses of PW13-Mahalingam and Manickam are located. The evidence that blood-stained earth and the sample earth have been taken in possession from the place of occurrence near the house of Mahalingam, therefore, the minor discrepancy in respect of place of occurrence is inconsequential as the occurrence is in the same street.

21. It is also argued that PW1-Ganesamoorthy, PW2-Raja and PW3- Ramesh have explained their injuries which part of their evidence has not been challenged in their cross-examination. The statement of DW4- Balakumaravelu does not support the argument raised by the learned counsel for the appellants as it is stated by the witness that the Doctors give treatment to the patients in the Out-Patient Ward from 7.30 -10.30 AM and give treatment to the patients in In-Patient Ward from 10.30 AM to 12.30 PM and then there is a lunch break from 12.30 PM – 2.00 PM. Thereafter, the administrative work is performed up to 2.30 PM. Thus, the witnesses have been medically examined at the earliest opportunity.

22. As per PW2-Raja, the road from Kumbakonam goes to Kudavasal, Pudukudi and Thiruvarur. The witness has stated that the distance between Pudukudi and Thiruvarur is 15 K.Ms., whereas, bus will take twenty-five minutes from Kudavasal to reach Thiruvarur. Therefore, the argument raised that PW1-Ganesamoorthy has manipulated his Medical Report from a Hospital near to his residence is not correct as he has travelled on the other side of his village as the Medico-Legal Examination was conducted at Thiruvarur.

23. Learned counsel refers to the judgement in Gangadhar Behera and Others Vs. State of Orissa6 to contend that the offence under Section 149 is made out if the unlawful assembly shared common object and not common intention, though mere presence in an unlawful assembly cannot render a person liable unless there was a common object. The common object is as set out in Section 141. It is not necessary to prove overt act against a person who is alleged to be a member of an unlawful assembly. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it.

24. The Judgment in Sanjeev Kumar Gupta vs. State of Uttar Pradesh7 was relied upon to contend that Section 149 has two components (i) offence committed by any member of an unlawful assembly consisting of five or more members, and (ii) such offence must be committed in prosecution of the common object under Section 141 IPC of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. For ‘common object’, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly.

25. The reliance is placed upon the Judgment reported as Gangadhar Behera to argue that the maxim “falsus in uno, falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno, falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution.

26. The first and foremost challenge is to the testimony of PW1- Ganesamoorthy for the reason inter alia that he was not present at the place of occurrence and that FIR has been ante dated. We do not find any merit in the said argument. The statement of PW1-Ganesamoorthy was recorded at 8.45 AM by PW19-Police Inspector Ramakrishnan soon after the occurrence. Lodging of the FIR by PW1-Ganesamoorthy is supported by PW2-Raja and PW3-Ramesh who have found that PW1- Ganesamoorthy was already in Police Station lodging the complaint. The testimony of PW19-Ramakrishnan regarding lodging of FIR at 8.45 AM is not discredited in the cross-examination. He denied such suggestion and also the suggestion that the documents were sent to the Court at 4.15 PM. There is nothing on record not to believe statement so the said witnesses more of the trial court and the High Court have believed the prosecution version in this respect.

27. In respect of manner of occurrence, PW1-Ganesamoorthy in the cross-examination stated that fifteen hundred people belonging to different castes live in the Village Neikuppai. He denied the suggestion that Thiruvarur Government Hospital was near to his house. He also disclosed the receipt of injuries on the body of his father-in-law and denied the suggestion that he does not know how his father-in-law was killed, how his father-in-law’s hut was set on fire and he did not go to Neikuppai Village.

28. In the re-examination, he deposed that five sickles recovered were approximately 1ft in length; some may be longer or shorter. Such statement of PW1-Ganesamoorthy is corroborated by PW2-Raja who is resident of same Village as that of the deceased Murugaiyan. He also deposed that houses of PW13-Mahalingam and Manickam are situated on the School street, one facing North and the other facing South and at a distance of half a furlong. At the time of incident Manickam’s house was locked and people came running to Manickam’s house from PW13 Mahalingam’s house. Similar is the statement of PW3-Ramesh that Ravi (A-1) has poured the kerosene from a tin container on the roof of hut of the Murugaiyan and Singaravelu (A-2) set ablaze the hut. Even PW5- Lakshmi wife of the deceased also deposed that he was Ravi (A-1) who poured kerosene and Singaravelu (A-2) who lit the matchstick. She has stated that there were other twenty or thirty people standing around as a group. The fact that she has not named other accused, will not absolve the role of the appellants, as their presence is disclosed by three other prosecution witnesses i.e. PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh.

29. The presence of witnesses examined by the prosecution at the place of occurrence is based upon the appreciation of the evidence by the two Courts. We do not find that such appreciation is perverse or wholly untenable which may warrant interference in the present appeals.

30. The argument that it is unbelievable that son-in-law will not stay with his in-laws, when his own village is around 15 KMs away, is purely conjectural. There is no reasonable basis to hold that PW1- Ganesamoorthy would not stay with his father-in-law in the circumstances explained by him.

31. The argument that in statement Ex.P.1, PW1-Ganesamoorthy has not stated the injuries suffered by him, will render his presence at the time of occurrence as doubtful. The said fact when examined in the context of a complete statement loses its significance. As per PW1- Ganesamoorthy soon after the incident, he went to Kudavasal located at the distance of 4 KMs from Neikuppai Village when he lodged the Report as statement Ex.P.1 and thereafter he went to Thiruvarur Government Hospital. The Kudavasal and Thiruvarur are located on the other side of his village.

32. PW17-Dr. Razool, an Assistant Surgeon in Thiruvarur Government Hospital conducted post-mortem examination at 4.30 PM. Thereafter, he conducted Medico-Legal Examination of PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh. He proved injury report Ex.P.15-Report of PW1, Ex.P.16-Report of PW2-Raja and Ex.P.17-Report of PW3-Ramesh. He has deposed that the injuries are possible in the manner disclosed by the witnesses. In the cross-examination, he disclosed that he cannot say possible time of causing the injuries found on the persons of three witnesses but he opined that the injuries could have been caused within one hour before he examined them. The opinion of the Doctor in respect of the timing of injuries is not conclusive based on possibility of injuries within one hour of the examination when the presence of prosecution witnesses as also the role attributed to each appellant’s presence has been found to be proved by the oral testimony. The opinion of an expert witness cannot be given preference over the primary statement of the witnesses in respect of manner of injuries suffered by them.

33. In respect of the argument that FIR was delivered at 4.45 PM on 13.03.1994 to the Judicial Magistrate at Nagapattinam, though the report was said to be sent at 9.30 AM, again does not create doubt on the prosecution version. The argument that the competent Magistrate was at Thiruvarur but the FIR has been delivered to the Judicial Magistrate, Nagapattinam which shows that the FIR was ante-timed, is again not acceptable. PW15-H.C. Narayanan, deposed that he went to Thiruvarur and waited for the arrival of the Magistrate. Since, it was a holiday, he handed over the FIR to the Judicial Magistrate at his residence at Pauthiramanickam at 4.45 PM. Therefore, the delay in the receipt of the FIR by the Judicial Magistrate is explained and cannot be made basis to reject the case of the prosecution as the FIR was proved to be lodged soon after the occurrence from the testimony of PW19- Police Inspector Ramakrishnan.

34. In respect of an argument that PW1-Ganesamoorthy has given parentage of all the ten accused in the statement Ex.P.1, but could not disclose the parentage of three accused in Court shows that the first version was lodged after prior consultation, is again not tenable. The FIR was lodged soon after the occurrence when PW2-Raja and PW3-Ramesh residents of the same village reached the Police Station. Therefore, the fact that he could not recollect the fathers name of three of the accused would not create doubt on the case set up by the prosecution.

35. The argument that the place of occurrence is based upon the statement of PW13-Mahalingam who deposed that the dead body was lying cut in front of Manickam’s house and that the members of the Dravid Kazhagham left the body in the seating area of his house and that blood of the deceased was pooled at the seating area of Manickam’s house, we find that such argument cannot be accepted.

36. PW6-Sankaran, Village Administrative Officer reached the scene of occurrence immediately on hearing about the incident and deposed that the dead body of Murugaiyan was lying in front of PW13-Mahalingam’s house. PW7-Kollimalai has also deposed that the bloodstained earth was seized from the house of PW13-Mahalingam in his presence and in the presence of Kunjupillai. The fact remains that houses of PW13- Mahalingam and that of Manickam are in the same street and at a distance of half a furlong. The witnesses have deposed the house of Manickam was locked and residents from the house of Mahalingam rushed to the place where dead body was lying. It explains the reason as to why the witnesses have deposed that the dead body was lying near the house of PW13.

37. The learned trial court found that some discrepancies can be due to minor errors of perception or observation or due to lapse of memory. It may be noticed that the witnesses were being examined after more than six years of the occurrence.

38. It is argued that prosecution has put on trial twenty-four accused, but presence of A-11 and A-16 to A-24 was doubted by learned trial court and they were acquitted on benefit of doubt. Five accused, A-10, A-12, A-13, A-14 and A-15 have been granted benefit of doubt in appeal as well. The argument that the entire case set up is based on falsehood and thus not reliable for conviction of the appellants, is not tenable. It is well settled that the maxim “falsus in uno, falsus in omnibus” has no application in India only for the reason that some part of the statement of the witness has not been accepted by the trial court or by the High Court. Such is the view taken by this Court in Gangadhar Behera’s case, wherein the Court held as under:-

“15. To the same effect is the decision in State of Punjab v. Jagir Singh8 and Lehna v. State of Haryana9. Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of “falsus in uno, falsus in omnibus” (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno, falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno, falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence”. (See Nisar Alli v. State of U.P.10 ) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab11). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P.12 and Ugar Ahir v. State of Bihar13.) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P.14 and Balaka Singh v. State of Punjab15.) As observed by this Court in State of Rajasthan v. Kalki16 normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar17. Accusations have been clearly established against the accused-appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned.”

39. Therefore, the entire testimony of the witnesses cannot be discarded only because, in certain aspects, part of the statement has not been believed.

40. The judgment referred to by learned counsel for the appellants in Ram Laxman’s case is not applicable to the facts of the present case, as in that case, the Court found the testimony of the witnesses as undependable and unreliable so as to grant benefit to some accused while maintaining the conviction of the others. The Court noticed that the maxim “falsus in uno, falsus in omnibus” is not applicable. Therefore, if the witness is reliable and dependable then the entire statement cannot be discarded.

41. Similarly, in the case of Noushad the Court found that the statement of PW11 that he has witnessed the incident with much of exactitude as to which accused assaulted his brother with what weapon cannot be said to have been really witnessed by him. Again, in Suraj Mal’s case, the Court was examining the legality of conviction under the provisions of Prevention of Corruption Act, 1947. It was found that the evidence of witnesses against the two accused was inseparable and indivisible, when on such evidence one of the accused was acquitted and not the other accused.

42. All these judgments are in respect of appreciation of evidence of witnesses in the facts being examined by the Court. The general principle of appreciation of evidence is that even if some part of the evidence of witness is found to be false, the entire testimony of the witness cannot be discarded.

43. The argument that five aruvals (sickles) were recovered only on the basis of disclosure statement of Ravi (A-1) is not factually correct. Ex.P.6 is a disclosure statement of Ravi (A-1), whereas, Ex.P.8 is a disclosure statement of Mohan (A-10), Subbaiyan (A-21), N. Rajamanickam (died), Santhanam (A-22) and Kannan (A-24).

44. In presence of such disclosure statements, a common memorandum of recovery as Ex.P.7 was prepared. Therefore, it is not the confessional statement of one accused which led to recovery of weapons used in the occurrence but on the basis of confessional statements of the accused, a common recovery memorandum was prepared. Such common Memo of recovery of weapons used in the occurrence cannot create doubt on the prosecution story.

45. The argument that non-availability of a Doctor at Kudavasal stands controverted on the statement of DW4-Balakumaravelu is again not tenable. DW4-Balakumaravelu is Assistant Doctor in the Kudavasal Government Hospital who has deposed that doctors were on duty on the date of occurrence. He has deposed that Doctor Geetha was on duty in Out-Patient Ward from 7.30 AM. There was no duty at the Out-patient ward from 3.00 to 5.00 PM on that day. As is given on the record that the Village Kudavasal falls on the way to Thiruvarur and since the Doctor was not available, the injured were examined at Government Hospital Thiruvarur. The testimony of PW17-Doctor Razool has not been questioned on the ground that the Doctor was available at Kudavasal Hospital and injuries should have been examined at that place as well. The only suggestion put to witness is that the injuries could have been caused within one hour before he examined them. The possibility of injuries is an opinion which cannot controvert the primary statement of the witness about the receipt of the injuries in the fateful morning of 13.3.1994.

46. The prosecution has proved the active role played by Ravi (A-1) and Singaravelu (A-2). The presence of other accused at the time of occurrence as part of the crowd who lynched Murugaiyan also stands proved. There is physical severance on the parts of the body of the deceased. The presence of the appellants were disclosed in the First Information Report recorded soon after the occurrence. Therefore, there is no reason to hold that the accused- appellants have been implicated falsely. It may be noticed that the appellants are also Backward Class Hindus. The prosecution witnesses PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh have clearly defined the role of each of the appellants in the occurrence which has taken the life of the Murugaiyan. Such statement is corroborated by PW5-Lakshmi wife of the deceased who deposed that it is Ravi (A-1) and Singaravelu (A-2) who poured kerosene and lit the matchstick respectively along with twenty-thirty other persons. Therefore, the active participation of all the appellants stands proved on record.

47. We do not find any merit in the argument that all the appellants cannot be said to have common object in view, in the absence of an overt act attributed to the appellants other than Ravi (A-1) and Singaravelu (A-2) by PW5-Lakshmi. Even PW5-Lakshmi is categorical that Ravi (A-1) and Singaravelu (A-2) were accompanied by twenty-thirty other people. Though she has not named other accused but the fact that the other accused have been named specifically by PW1- Ganesamoorthy, PW2-Raja and PW3-Ramesh, clearly shows that all the accused came as a group to attack the hut of the deceased and then took his life.

48. In the Joseph’s case as relied upon by the counsel for the appellants, the Court held that if the prosecution succeeds in improving the existence of common object amongst the accused and that accused actuated the prosecution of common object and knew that the death was likely to be committed, the conviction under Section 302 IPC read with 149 is made out. The Court held as under:

“11.3. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established.”

49. In the above case, the Court held that as to whether the members of the unlawful assembly really had the common object to cause the murder of the deceased has to be decided on the facts and circumstances of each case. The nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the circumstances under which the occurrence took place are the factors to decide as to whether, the accused had common object. It is an inference to be deduced from the facts and circumstances of each case. The Court held that there is no evidence to prove that Accused 1 to 11 had any common object to commit the murder of Kennedy which activated all of them to join in furtherance of the common object.

50. In Najabhai’s case, there was no evidence that there was a common object of murder amongst the accused, as accused No. 1 was infuriated on the question by the appellant regarding the damage to the electricity pole near his house. There is nothing on record to suggest any previous enmity between the parties. Such judgment is again on the appreciation of the evidence in the case in hand.

51. In Gangadhar Behera’s case, while considering the Section 141 of IPC, it was held that common object is not common intention as the mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object. Common object does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view if the five or more act as an assembly to achieve that object. The “common object” of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. The Court while considering the plea that definite roles ascribed to the accused and therefore Section 149 is not applicable was not accepted. It is held as under:
“25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A four-Judge Bench of this Court in Masalti case18 observed as follows: (AIR p. 210, para 15)

“15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.”

26. To similar effect is the observation in Lalji v. State of U.P.19 It was observed that: (SCC p. 441, para 8)
“Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.”

27. In State of U.P. v. Dan Singh20 it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji case where it was observed that: (SCC p. 442, para 9)
“While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149.”

28. Above being the position, we find no substance in the plea that evidence of eyewitnesses is not sufficient to fasten guilt by application of Section 149. So far as the observations made in Kamaksha Rai case21 are concerned, it is to be noted that the decision in the said case was rendered in a different factual scenario altogether. There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases (see Padma Sundara Rao v. State of T.N.22). It is more so in a case where conclusions relate to appreciation of evidence in a criminal trial, as was observed in Krishna Mochi case.”

52. In Sanjeev Kumar’s case, the conviction under Section 302 with the aid of Section 149 was maintained when, it was found that there was no object of killing but only of stopping the deceased and other contestants from elections. It was held that it cannot be ruled out that the common intention to kill might have arisen on the spur of the moment.

53. It is held in the Gangadhar Behera’s case that the words of a judgment cannot be treated as words in a legislative enactment. It is to be remembered that judicial orders are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases, therefore, whether there was common object of the accused in each case would depend upon cumulative effects of the facts of that particular case.

54. In the present case, both the Courts below have found that the appellants have common object in burning the hut of the deceased and also attacking the deceased with aruvals (sickles) in view of the role of the deceased in the affairs of Panchayat against caste Hindus. Therefore, appellants other than Ravi (A-1) and Singaravelu (A-2) cannot be treated differently to convict them for the offences under Section 326 read with Section 149 IPC as all the accused were part of the unlawful assembly which has taken the life of the deceased in a murderous attack on the fateful morning of 13.03.1994.

55. Consequently, we do not find any merit in the present appeals and the same are dismissed.

The appellants are on bail. They shall surrender within four weeks to undergo their remaining part of the sentence.

………………………………………J.
(Sanjay Kishan Kaul)
……..…………………………………J.
(Hemant Gupta)

New Delhi, February 21, 2019

FOOTNOTE

1 (2016) 12 SCC 389

2 (2015) 2 SCC 513

3 (1979) 4 SCC 725

4 (2018) 12 SCC 283

5 (2017) 3 SCC 261

6 (2002) 8 SCC 381

7 (2015) 11 SCC 69

8 (1974) 3 SCC 277

9 (2002) 3 SCC 76

10 AIR 1957 SC 366

11 AIR 1956 SC 460

12 (1972) 3 SCC 751

13 AIR 1965 SC 277

14 AIR 1954 SC 15

15 (1975) 4 SCC 511

16 (1981) 2 SCC 752

17 (2002) 6 SCC 81

18 AIR 1965 SC 202

19 (1989) 1 SCC 437

20 (1997) 3 SCC 747

The post Mahendran vs The State Of Tamil Nadu appeared first on B&B Associates LLP.

VIPIN SANGHI, J.
1. The petitioner has preferred this present writ petition to assail the order dated 31.12.2018 passed by the Debt Recovery Appellate Tribunal (hereinafter referred to as the DRAT), New Delhi in Appeal No. 459 of 2016, titled „Ms. Sujata Kapoor v Union Bank of India & Ors.‟.
2. Arguments were initially heard and judgment reserved on 02.04.2019. The judgment could not be pronounced earlier. Accordingly, the matter was fixed for directions on 06.12.2019. On that day, counsel for the petitioner appeared and it was adjourned to 11.12.2019 to enable him to recapitulate his submission, which he did. Consequently, the judgment was reserved.
3. The mainstay of the submissions of learned counsel for the petitioner– to ward off the attachment and sale of the property bearing No. 3, Racquet Court Road, Civil Lines, Delhi (hereinafter referred to as the „said property‟), is the protection afforded to a Judgment Debtor/ Certificate Debtor by Section 60(1)(ccc) of the Code of Civil Procedure, 1908 (the Code) as applicable to Delhi. Thus, the scope and interpretation of the said provision arises for consideration before us. Before we proceed, we may take note of a few admitted facts, and facts emerging from the record. We may observe that the petitioner has selectively filed documents before us. The petitioner has not disputed the factual position as recorded in, and emerging from the orders passed by the Recovery Officer (R.O.), the Debt Recovery Tribunal (DRT) and the DRAT. We have, therefore, proceeded to consider the matter in the light of facts found in the orders passed by the said Authorities/ Tribunals.
4. Late Sh. B.R. Dougall (BRD in short) [described as respondent No.4 in the present writ petition], undisputedly, was the owner of the said property having acquired the same on his own. M/s Atul Food Products Limited obtained a loan from the respondent Union Bank of India (UBI for short). Amongst others, BRD offered his personal guarantee to secure the said loan. Since the loan was not serviced and repaid in time, the UBI initiated recovery proceedings vide O.A. No.653/2000 before the DRT-II, Delhi under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (the Act for short). The DRT by an ex-parte order allowed the Original Application on 10.01.2002 against the principal borrower/ debtor M/s Atul Food Products Limited (CD-1) and, inter alia, BRD (CD-3). Consequently, a recovery certificate was issued on 17.01.2002 for an amount of Rs.1,07,40,894/- with pendente lite and future interest @ 17.25% per annum with quarterly rests w.e.f. 06.12.2000 till realization, and costs of Rs.1,50,500/-. Upon service of the recovery certificate on the certificate debtors (CDs), including BRD (CD-3) in March 2002, BRD (CD-3) filed his affidavits dated 24.08.2004 and 28.09.2004 (vide Diary No.3060), wherein he stated that he, inter alia, owns the said property as his self acquired property. It appears that on 24.08.2004, the CDs, including BRD (CD-3), were restrained from creating any third party interest whatsoever to the detriment of the UBI in the immovable assets owned by the said CDs.
5. The aspect of recovery of the amounts found due by the DRT upon adjudication of the Original Application is dealt with in Section 29 of the Act, which provides that the provisions of the Second and Third Schedules to the Income Tax Act, 1961 (I.T. Act) and the Income Tax (Certificate Proceedings) Rules, 1962 (the „Rules‟ for short) as in force from time to time shall, as far as possible, apply with necessary modifications, as if the said provisions and the Rules refer to the amount of debt due under the Act, instead of to Income-Tax. Thus, by virtue of Section 29, the provisions of the Second and the Third Schedules to the I.T Act get attracted in respect of recovery of the amount of debt due and recoverable under the Act. Reference to the expression “assessee” in the said Schedules to the I.T. Act, is liable to be construed as reference to the “defendant” under the Act while applying the provisions of the Second and Third Schedules to the I.T. Act and the Income Tax (Certificate Proceedings) Rules, 1962.
6. Rule 2 contained in the Second Schedule to the I.T. Act reads as follows:
“2. When a certificate has been drawn up by the Tax Recovery officer for the recovery of arrears under this Schedule, the Tax Recovery Officer shall cause to be served upon the defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of service of the notice and intimating that in default steps would be taken to realise the amount under this Schedule”.
7. From the record, it appears that the certificate – which means the certificate drawn up by the Recovery Officer in respect of the defendant under the Act, was duly drawn up and served, inter alia, on BRD (CD-3) in March, 2002.
8. Rule 4 of the Second Schedule provides for mode of recovery. The same, inter alia, provides that if the amount mentioned in the notice is not paid within the time specified in the notice referable to Rule 2, the Recovery Officer shall proceed to realize the amount, inter alia, by attachment and sale of the defaulter‟s immovable property. Rule 5 of the Second Schedule provides for recovery of interest, costs and charges as well. These Rules read as follows:
“4. If the amount mentioned in the notice is not paid within the time specified therein or within such further time as the Tax Recovery Officer may grant in his discretion, the Tax Recovery Officer shall proceed to realise the amount by one or more of the following modes :—
(a) by attachment and sale of the defaulter‘s movable property;
(b) by attachment and sale of the defaulter‘s immovable property;
(c) by arrest of the defaulter and his detention in prison;
(d) by appointing a receiver for the management of the defaulter‘s movable and immovable properties.
5. There shall be recoverable, in the proceedings in execution of every certificate,—
(a ) such interest upon the amount of tax or penalty or other sum to which the certificate relates as is payable in accordance with sub-section (2) of section 220, and
(b) all charges incurred in respect of—
(i) the service of notice upon the defaulter to pay the arrears, and of warrants and other processes, and
(ii) all other proceedings taken for realising the arrears.” (emphasis supplied)
9. Thus, the defaulter‟s immovable property could be sold to realize the amount due under the Recovery certificate. Rule 11 empowers the Recovery Officer to deal with any claim or objection made to the attachment or sale of property in execution of a certificate, and the same reads as follows:
“11. (1) Where any claim is preferred to, or any objection is made to the attachment or sale of, any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection :
Provided that no such investigation shall be made where the Tax Recovery Officer considers that the claim or objection was designedly or unnecessarily delayed”
10. Rule 16 of the Second Schedule provides that where a notice has been served on a defaulter under Rule 2, the defaulter or his representative-in- interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him, except with the permission of the Recovery Officer, nor shall any Civil Court issue any process against such property in execution of a decree for the payment of money. The text of the said Rule is as follows:
“16(1) Where a notice has been served on a defaulter under rule 2, the defaulter or his representative in interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the permission of the Tax Recovery Officer, nor shall any civil court issue any process against such property in execution of a decree for the payment of money.
(2). Where an attachment has been made under this Schedule, any private transfer or delivery of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.” (emphasis supplied)
11. Rule 48 provides for attachment of immovable property of the defaulter. The same reads as follows:
“48. Attachment of the immovable property of the defaulter shall be made by an order prohibiting the defaulter from transferring or charging the property in any way and prohibiting all persons from taking any benefit under such transfer or charge.”
12. Rule 51 provides that where any immovable property is attached under the Second Schedule, the attachment shall relate back to and take effect from the date on which the notice to pay the arrears (amount due under the Recovery Certificate) issued under the Second Schedule was served upon the defaulter. The said Rule reads as follows:
“51. Where any immovable property is attached under this Schedule, the attachment shall relate back to, and take effect from, the date on which the notice to pay the arrears, issued under this Schedule, was served upon the defaulter.” (emphasis supplied)
13. It appears that the Authorities/ Tribunals proceeded on the basis that attachment was directed by the R.O. under Rule 48 on 18.04.2011, and on 26.05.2011. Consequently, the sale proclamation was settled on 26.08.2011. By virtue of Rule 51, the attachment of the said property of BRD (CD-3) related back to March 2002, when he was served with the certificate under Rule 2.
14. At that stage, the petitioner made her appearance by preferring objections under Section 25 of the Act read with Rule 11 of the Second Schedule to the I.T Act to the order of attachment and notice for settling the terms of sale proclamation in respect of the said property.
15. The petitioner placed heavy reliance on Rule 10, which reads as follows:
“10. (1) All such property as is by the Code of Civil Procedure, 1908 (5 of 1908), exempted from attachment and sale in execution of a decree of a civil court shall be exempt from attachment and sale under this Schedule.
(2) The Tax Recovery Officer‘s decision as to what property is so entitled to exemption shall be conclusive.” (emphasis supplied)
16. According to the petitioner, the said property was exempted from attachment and sale in execution of a decree by a Civil Court, on the ground that the said property was the only residential house of BRD (CD-3), and continues to be the only residential property of the petitioner even now. For this purpose, reliance was placed on Section 60(1), proviso (ccc) of the Code, as applicable to Delhi.
17. The prayers sought by the petitioner in the said objections, filed on or about 12.09.2011, read as follows:
“i) The objections/claim of the Objector may kindly be allowed and the attachment of the property bearing No.3, Racquet Court Road, Civil Lines, Delhi, made vide Order dated 18.04.2011, 26.05.2011 or any other order of this Hon‘ble Tribunal may kindly be set aside/withdrawn/discharged consequently notice dated 26.08.2011 for settling sale proclamation of the property bearing No.3, Racquet Court Road, Civil Lines, Delhi, may also be recalled/discharged/set aside.
ii) Meanwhile, till the disposal of present objection/claim filed by objector, the further proceedings qua property bearing No.3, Racquet Court Road, Civil Lines, Delhi may kindly be stayed.”
18. The petitioner claimed that she was a bona fide purchaser without notice for valuable consideration of the said property from the erstwhile owner, namely BRD (CD-3) vide sale deed dated 29.11.2006. She claimed that BRD (CD-3) had mortgaged the said property with the Indian Overseas Bank (IOB) in respect of the loan obtained by his son Vivek Dougall in the name of his sole proprietary firm M/s Vinayak International Inc. sometime in 1993. She claimed that IOB had instituted O.A. No.15/2002 against Vivek Dougall and BRD in his capacity as surety/ guarantor before the DRT. IOB had made an offer for One-Time Settlement of the outstanding dues for Rs.2,09,18,000/- on 16.09.2006. She claimed that her father and brother had offered to buy the said property in her name for Rs.2,11,90,000/.
19. The IOB had agreed to the said sale. Consequently, the said property was purchased in the name of the petitioner vide sale deed dated 29.11.2006. She claimed that she had also got mutated the said property in her name in the records of the MCD in 2007, and she had been paying the property tax thereafter. BRD (CD-3) passed away on 28.02.2009.
20. She argued that BRD (CD-3) had created the equitable mortgage in favour of the IOB on 27.01.1994, i.e. much prior to issuance of the recovery certificate in favour of the UBI on 17.01.2002. Thus, the sale of the said property in favour of the petitioner/ objector was not a fraudulent sale to defeat the interest of any creditor.
21. She also claimed that the said property, in any event, could not be attached and sold to recover the amount due to UBI, since it was exempted under Rule 10 of the Second Schedule read with Section 60(1)(ccc) of the Code, since BRD (CD-3) did not have any other residential property apart from the said property, and even she does not have any other property apart from the said property after her purchase on 29.11.2006. She raised several other objections with which we are presently not concerned, since they have been rejected by the authorities below and have not been urged before us.
22. The respondent UBI filed their reply to the objections, inter alia, stating that the transfer of the said property in favour of the petitioner vide sale deed dated 29.11.2006 was null & void, since the same was in contravention of Rule 2, read with Rule 16 of the Second Schedule to the I.T Act, as well as in contravention to the attachment made, inter alia, vide order dated 25.08.2011 passed by the Recovery Officer under Rule 48 of the Second Schedule to the Income Tax Act. The UBI referred to the affidavit filed by BRD (CD-3) vide Diary No.3060 dated 28.09.2004, wherein he had stated that he was possessing the said property as his self-acquired property. It also stated that on the date when the demand notice was served, inter alia, on BRD (CD-3), the said property was in possession of BRD (CD-3) and he could not have parted with its possession, or alienated the same. The bona fides of the petitioner were also challenged, since she claimed transfer of the said property in her favour on 29.11.2006 from her father-in-law BRD (CD- 3), while, at the same time, stating that she had estranged relationship with her husband Vivek Dougall. The stand taken by the petitioner that she had no knowledge of the outstanding liability owed to UBI was also disputed and challenged on the ground that she was the family member of BRD (CD-3) and Vivek Dougall. The UBI contended that the transfer of the said property in favour of the petitioner was also hit by Section 52 of the Transfer of Property Act.
23. The Recovery Officer rejected the objections preferred by the petitioner vide order dated 13.05.2016. He took note of the fact that as per the record, the demand notice dated 15.03.2002 was issued to the certificate debtor‟s – including BRD (CD-3), and all the CDs were served at their recorded addresses in March 2002. BRD (CD-3) appeared, for the first time, before the Recovery Officer on 11.10.2002 through counsel and he appeared in person on 16.12.2002. He filed his affidavit of assets on 24.08.2004, which disclosed the said property as his self-occupied property. On the same day, i.e. 24.08.2004, the CDs, including BRD (CD-3) were restrained from creating third party interest whatsoever to the detriment of the CH Bank UBI in the immovable assets which was a part of the record. BRD (CD-3) filed an additional affidavit vide Diary No.3060 dated 29.09.2004, wherein he again disclosed that he was the owner of the said property, which was self-occupied by him. The Recovery Officer notes that on the date of service of demand notice/ certificate dated 15.03.2002, as also on the date of the restraint order dated 24.08.2004, BRD (CD-3) was the owner in possession of the said property. He sought to execute the sale deed qua the said property in favour of the petitioner/ objector on 29.11.2006. The Recovery Officer rejected the contention of the petitioner/ objector that the sale of the property in her favour was not a private sale. He drew reference to Rule 2 and 16 of the Second Schedule to the I.T Act. He observed:
“Therefore, by virtue of the operation of Rules 2 and 16 of Second Schedule of Income Tax Act read with Section 25 and 28 of the RDDBFI Act and in view of the specific restraint order dated 24.08.2004 passed by the then Ld. recovery Officer, CD#3 was barred from creating any third party interest in relation to any of his movable/immovable estates, including property in question, from March 2002 onwards, after service of demand notice in the present R.C. The Transfer of the property in question by CD#3 in favour of the objector by Sale Deed registered on 29.11.2006 is hit by Rule 16 of the Second Schedule of Income Tax Act, 1961 and on this ground alone, the present objection application is liable to be dismissed.” (emphasis supplied)
24. The petitioner had sought to place reliance on an earlier order dated 22.02.2007 passed by the Recovery Officer – to claim that attachment of the said property had been declined on the said date, since the same was the only residential property of BRD (CD-3). This submission was also rejected by the Recovery Officer in paragraph 9.3 of his order. The petitioner‟s submission premised on Section 64 CPC read with Order XXXVIII Rule 10 CPC was also rejected by the learned Recovery Officer in paragraph 9.4 of his order.
25. The petitioner then preferred an appeal under Section 30 of the Act before the DRT, being Appeal No.39/2016. The DRT rejected the same vide order dated 21.09.2016. In her appeal, the petitioner claimed that she was a victim of fraud. She claimed that the order of attachment of the said property, and the notice to settle the terms of proclamation, are contrary to law. She claimed that the sale in her favour was to redeem the mortgage in favour of the IOB by BRD (CD-3), and that she was a bona fide purchaser without notice for valuable consideration. She claimed that the property had been sold to her prior to its attachment. She placed reliance on Hamda Ammal Vs. Avadiappa Pathar & 3 Others, (1991) 1 SCC 715. The respondent UBI defended the order passed by the learned Recovery Officer. The DRT dismissed the appeal of the petitioner on 21.09.2016. It rejected the petitioner‟s reliance on Hamda Ammal (supra), since the demand notice in the present case had been issued on 15.03.2002; BRD (CD-3) was served with the same in March, 2002; BRD (CD-3) had appeared before the Recovery Officer of the DRT through counsel on 11.10.2002 and in person on 16.12.2002, and also filed his affidavits disclosing his assets – including the said property as his self-acquired property of which he was in possession on 24.08.2004; he had filed an additional affidavit on 29.09.2004 also to the same effect; the attachment – by virtue of Rule 51 of the Second Schedule of the I.T Act related back to the date of service of notice under Rule 2, and; therefore, the attachment made in 2011 related back to the year 2002. Transfer of the said property by BRD (CD-3) in the year 2006 was in the teeth of Rule 16 of the Second Schedule to the Income Tax Act.
26. The petitioner preferred a further appeal before the DRAT, which has been dismissed by the impugned order.
27. The learned DRAT after referring to the decisions in Gangadhar Vishwanath Ranade Vs. Income – Tax Officer, 1989 177 ITR 163 Bom, and The Tax Recovery Office II, Sadar, Nagpur Vs. Gangadhar Vishwanath Ranade (dead) through Mrs. Shobha Ravindra Nemiwant, AIR 1999 SC 427, inter alia, observed: “…. upon receipt of a Recovery Certificate from the Presiding Officer of DRT, the Recovery Officer is expected to serve upon the certificate – debtors a demand notice as provided under Rule 2, requiring them to make payment within a period of 15 days.
In case of default in payment by the CDs, the CH Bank can request the Recovery Officer to attach any movable or immovable assets of the CDs and in case of attachment order is passed and some third party feels aggrieved by that attachment, he or she can file objections before the Recovery Officer under Rule 11 and if upon investigation of the claim of the objector the Recovery Officer finds that on the date of service of demand notice under Rule 2, the property attached was in occupation of the CD in his or her own right, the attachment will not be lifted and the sale, if conducted, will not be set aside. Further, in case the objector is able to show that on the date of service of demand notice under Rule 2 he or she was in possession in his or her own right and his or her possession was not on behalf of CD, then the Recovery Officer will lift the attachment or set aside the sale.”
28. The learned DRAT proceeded to examine the facts of the case in the aforesaid light and observed: “In the present case, undisputedly, demand notice under Rule 2 of the Rules was served upon the deceased CD Mr. B.R. Dougall in March 2002. At that time, he undisputedly was in possession of the property in question in his own right as its owner and not on behalf of any third party including the present appellant – objector. Therefore, the appellant – objector being not in possession of the property in question on the date of service of demand notice under Rule 2 upon the deceased CD, she could not have asked for lifting of the attachment order passed by the Recovery Officer in April 2011 despite the fact that she claims to have purchased the property in question from the CD Mr. B.R. Dougall in the year 2006. The crucial date is the date when the concerned CD is served with a demand notice as provided under Rule 2, which admittedly in the present case was served in March, 2002, and not the date of attachment. Therefore, even if it is accepted that the appellant – objector was in possession of the property in question in April, 2011 when the learned Recovery Officer had attached the property which she was claiming to be her matrimonial home also that possession and even the sale deed allegedly executed in her favour by her father – in – law before that attachment order of the Recovery Officer will not confer any interest upon her for the purpose of getting an order of withdrawal of attachment under Rule 11”.
29. The learned DRAT rejected the submission of the petitioner that the sale executed by BRD (CD-3) in her favour of the said property was to redeem the mortgage with the IOB and, therefore, the prohibition against the sale of any property belonging to the CD by him after he has been served with a demand notice under Rule 2 of the Second Schedule is not attracted, by observing “However, I do not find any substance in the above argument of Mr. D.K. Malhotra. In the present case Rule 2 notice stood served upon the deceased Mr. Dougall in March, 2002 and thereafter on 18th November, 2006 the Indian Overseas Bank had released the property in dispute from its charge after it had been paid its full dues by late Mr. B.R. Dougall as per the settlement between the Bank and the borrower Firm through its proprietor, who is his son. The property in question then became free from the charge of the mortgagee Bank but since Rule 2 demand notice had already stood served upon Mr. Dougall in March, 2002 he was not competent to execute the sale deed in favour of his daughter-in-law and for that matter in favour of anybody in view of the prohibition contained in Rule 16(1)(which Rule has been extracted by the DRT in its impugned order). In the grounds of appeal it has been pleaded that the deceased Mr. Dougall had in fact redeemed his property. If that was so it becomes all the more a more strong reason to reject the story cooked by the appellant because redemption could be by the mortgagor with his own money may be mustered by taking money from the in-laws of his son, as is the case of the appellant. ”
30. The learned DRAT observed that the sale in favour of the petitioner had been executed by BRD (CD-3) after the mortgage had been redeemed by making payment to IOB, so the sale transaction between BRD (CD-3), the father-in-law and the petitioner daughter-in-law could not be said to have been entered into by a mortgager in order to discharge pre-existing contractual liability towards the mortgagee Bank. The learned DRAT also noticed the fact that a private sale was made between the father-in-law and the daughter-in-law, who claimed that she had estranged relations with her husband and her in-laws.
31. We may observe that on behalf of the petitioner, no submission has been advanced on the findings returned by the learned Recovery Officer; the learned DRT, and the learned DRAT. Even otherwise, it is clearly evident from the facts of the case that BRD (CD-3) had been served with the demand notice under Rule 2 of the Second Schedule in March, 2002. He appeared, firstly, through his counsel and thereafter in person before the Recovery Officer on 11.10.2002 and 16.12.2002. He had filed his affidavit of assets on 24.08.2004, which disclosed the said property as his self acquired property. On the same day, he had been restrained from creating third party interest whatsoever to the detriment of the C.H. Bank, UBI, in the immovable assets which were part of the record. The said property was also a part of the record of the Recovery Officer, since the same was disclosed by BRD (CD-3) as his personal assets in his occupation in his affidavit dated 24.08.2004. He had filed an additional affidavit on 29.09.2004 to the same effect. We may observe that, though the Authorities/ Tribunals below have proceeded on the basis that orders for attachment were passed on 18.04.2011 and 26.05.2011, to us, it appears that the attachment orders were issued in respect of the said property, firstly, on 24.08.2004 – when the C.D.s, including CD-3 (BRD) was restrained from creating any third party interest whatsoever, to the detriment of the CH-UBI. We state so, since the manner of attachment of immovable property of the defaulter under Rule 48 of the Second Schedule is made “by an order, inter alia, prohibiting the defaulter (which CD-3/ BRD was) from transferring or charging the property in any way … …”. However, even if the attachment of the said property is taken to have been ordered on 18.04.2011 and 26.05.2011, it makes no difference, since the same relates back to, and takes effect from the date on which the notice to pay the arrears, issued under the Schedule, was served upon the defaulter (See Rule 51). In this case, the notice to pay the arrears was served on the defaulter/ CD-3/ BRD in March 2002. Thus, the attachment related back to March, 2002.
32. Undisputedly, as on 24.08.2004, there was a binding restraint order against BRD (CD-3) from creating any third party interest in respect of the said property. BRD (CD-3) could not have transferred the said property to the third party, including to the petitioner without permission of the Recovery Officer, not only by virtue of Rule 2 read with Rule 16 of the Second Schedule to the IT Act, but also in the light of the express restraint order passed against him on 24.08.2004. Pertinently, the said property was not sold to the petitioner in execution of the recovery certificate obtained by IOB. It was not a sale “made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment”. The said sale was a private sale, and merely because the IOB did not object to the said sale (because their One Time Settlement Offer was honoured), it does not mean that the sale of the said property by BRD (CD-3) in favour of the petitioner attains legality or legitimacy. It was a sale made in complete breach of Rule 16 read with Rule 51 of the second schedule to the Income Tax Act. It was in complete defiance of, and in violation of the order dated 24.08.2004 passed by the Recovery Officer. It was not saved by Section 64
(2) of the code, since it was not made in pursuance of an agreement made prior to the attachment of the said property under Rule 16 read with Rule 51 of the Rules. The attachment related back to March, 2002, whereas the sale took place in 2006. Consequently, the petitioner cannot claim a legitimate, much less better title to the said property than BRD/CD-3. Her claim of being a bonafide purchaser without notice for valuable consideration has not been accepted by the DRAT, and for good reasons. The same does not insulate her from the action that the CH Bank-UBI may take to recover their dues under the Recovery Certificate by going after the said property of CD- 3/BRD. If the petitioner claims that she has been defrauded by BRD, it is for her to sue the estate of BRD. We also find that the Recovery Officer, the Tribunal and the DRAT rightly rejected the reliance placed by the petitioner on Hamda Ammal (supra), keeping in view the facts of the present case. We, therefore, do not find any reason to interfere with the impugned order on any aspect raised before the DRAT and decided by it.
33. A perusal of the impugned order shows that the petitioner actually did not even urge before the learned DRAT the issue raised by learned counsel for the petitioner before us, namely, that the said property could not be sold in execution i.e. for recovery of the amount due under the recovery certificate, since the same was the only residential property of BRD (CD-3) till the time that he transferred the same to the petitioner, and, thereafter the same is the only residential property of the petitioner.
34. However, when the writ petition was taken up for initial hearing on 11.03.2019, learned counsel for the petitioner sought to advance the submission taken note of in paragraph 3 hereinabove. Learned counsel for the petitioner sought an adjournment to address the Court on the aspect whether Section 60(1)(ccc) of the Code, as applicable to Delhi, is attracted in the facts of the present case. The matter was, thereafter, heard at length and judgment reserved.
35. To begin with, we may extract the opening words of Section 60 of the Code, de hors the State Amendments applicable to Delhi. Insofar as they are relevant, they read as follows:
“60. Property liable to attachment and sale in execution of decree.—(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf:
Provided that the following properties shall not be liable to such attachment or sale, namely:—
(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;
(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;
(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him;” (emphasis supplied)
36. Thus, it would be seen that the main provision of Section 60 CPC, describes, inter alia, lands, houses and other buildings belonging to the Judgment Debtor as properties which are liable to attachment and sale in execution of a decree. The proviso to Section 60(1), however, carves out exceptions of properties which are not liable to attachment and sale. At this stage itself, we may observe that by State amendments applicable to Delhi, inter alia, Clause (c), as extracted above, has been modified, and Clause (cc) and (ccc) have been added, which are relevant and shall be taken note of hereinafter. Nevertheless, even the unamended clause (c) in the proviso exempts houses and other buildings with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment “belonging to an agriculturist or a labourer or a domestic servant” and occupied by him, from attachment and sale in execution of a decree. Evidently, the Parliament granted exemption in Clause (c) of the proviso to Section 60(1) in respect of the poorer classes of persons comprising of agriculturists, labourers, and domestic servants.
37. Amendments to, inter alia, section 60 (c), and the introduction clauses (cc) and (ccc) [with which we are specifically concerned] were introduced by the Punjab Relief of Indebtedness Act, 1934 [Punjab Act No. VII of 1934] (PRI Act for short), which was extended in its application to Delhi.
38. Before coming back to the relevant clause of Section 60 CPC, we may now turn our attention to the PRI Act. The PRI Act was enacted even prior to the coming into force of the Government of India Act, 1935 and Parts thereof were extended to the whole of Punjab (as then defined). The PRI Act was described as “An act to provide for the relief of indebtedness in the Punjab”. With a view to fulfill the stated object of the PRI Act, under the umbrella of the PRI Act, various provisions/ sections of other enactments in force, which had a bearing on the aspect of indebtedness in the Punjab, were amended. The Legislature – with a view to achieve the object of the PRI Act, viz. to provide relief of indebtedness in the Punjab, inserted or modified sections/ clauses in other enactments. For instance, Section 3 of the PRI Act inserted Clause (aa) in Section 10(1) of the Provincial Insolvency Act, 1920. Similarly, Section 4 of the PRI Act amended/ substituted the words found in Section 74 of the Provincial Insolvency Act, 1920. Section 5 of the PRI Act amended Section 3 of the Usurious Loans Act, 1918. Section 33 of the PRI Act introduced amendments to Section 1(3)(a) of the Redemption of Mortgages (Punjab) Act, 1913. Section 35 of the PRI Act introduced an amendment in Section 60(1)(c) of the CPC. The words “occupied by him” were substituted by the words “not let out on rent or lent to others or left vacant for a period of a year or more”. Thus, the strict condition – that the “house or other building” should be “occupied by him”, to entitle the “agriculturist or a labourer or a domestic servant”, the protection against attachment and sale was somewhat relaxed to cover even cases where such property may have been let out or left vacant for less than a year. Similarly, Section 36 of the PRI Act amended Order 21 Rule 2 of the CPC by omitting Sub-rule (3) thereof.
39. Section 7 of the PRI Act contained the definitions of the expressions “Debt” and “Debtor”. The said Section reads as follows:
“7. (I) “Debt” includes all liabilities of a debtor in cash or in kind, secured or unsecured, payable under a decree or order of a civil court or otherwise, whether mature or not, but shall not include debts incurred for the purposes of trade, arrears of wages, land revenue or anything recoverable as an arrears of land revenue, or any debt which is barred by the law of limitation, or debts due to co-operative banks or to co- operative societies or to the Imperial Bank of India or to any banking company registered under the Indian Companies Act, 1913, or the law relating to companies for the time being in force in British India
(2) “Debtor” means a person who owes a debt, and
(i) who both earns his livelihood mainly by agriculture, and is either a landowner, or tenant of agricultural land, or a servant of a land owner, or of a tenant of agricultural land, or
(ii) who earns his livelihood as a village menial paid in cash or kind for work connected with agriculture.
Provided that a member of a tribe, notified as agricultural under the Punjab Alienation of Land Act, 1900, shall be presumed to be a debtor as defined in this section until it is proved that his income from other sources is greater than his income from agriculture.
Explanation. – (i) A debtor shall not lose his status as such through involuntary unemployment or an account of incapacity, temporary or permanent, by bodily infirmity, or, if he is or has been in service of His Majesty‘s Military or Naval Forces, only on account of his pay and allowances or pension exceeding his income from agricultural sources.
(ii) A debtor shall not lose his status as such by reason of the fact that he makes income by using his plough cattle for purposes of transport.
(iii) A debtor shall not lose his status as such only because he does not cultivate with his own hands.
If any question arises in proceedings under this part of the Act, whether a person is a debtor or not, the decision of a Debt Conciliation Board shall be final.
(3) “Agriculture” shall include horticulture and the use of land for any purpose of husbandry inclusive of the keeping or breeding of livestock, poultry, or bees, and the growth of fruit, vegetables and the like.
(4) “Prescribed” means prescribed by rules made under this part of the Act.” (emphasis supplied)
40. Thus, the “Debtor” under the PRI Act is defined, primarily, as an agriculturist, or one who earns his livelihood as a village menial paid in cash, or kind, for work connected with agriculture. It is in respect of such a debtor, that the expression “Debt” has been defined. However, even in respect of such a debtor, debts incurred, inter alia, for the purposes of trade are not covered by the expression “Debt”, meaning thereby, that even in respect of an agriculturist, debts which arise out of, or in connection with trading activities, are not covered within the scope of the PRI Act.
41. Section 8 of PRI Act provides for setting up of Debt Conciliation Boards by the local government for the purpose of amicable settlement between debtors and the creditors. Section 9 provides that the debtor or any of his creditors may apply to the Board to effect the settlement between the debtor and his creditors. Section 9 contains a proviso, which states that “no application shall be made if the debtor‘s debts exceed ten thousand rupees or such larger sum as the Local Government may prescribe for any particular area.”
42. The proviso to Section 9 shows that the defined debts of debtors (as defined under the PRI Act), if they exceed Rs.10,000/-, or such larger sum as the Local Government may prescribe for any particular area, shall not be put up for settlement before the Debt Conciliation Board. The legislature, evidently, intended small debtors covered by the PRI Act with greater protection, than others.
43. On 30.05.1939, i.e. after the coming into force of the Government of India Act, 1935, the Central Government exercised its powers conferred by Section 7 of the Delhi Laws Act, 1912, to extend to the province of Delhi, the enactments specified in the Schedule. The relevant extract of the said notification published in the Gazette of India dated 03.06.1939 being Notification No. 189/38 reads as follows:
“No. 189/38. – In exercise of the powers conferred by section 7 of the Delhi Laws Act, 1912 (XIII of 1912), and in supersession of all previous notifications under that section extending Punjab Acts to the Province of Delhi or any part thereof, except the notification of the Government of India in the Department of Education, Health and Lands, No. F. 117/32-L. & O., dated the 26th January, 1933, the Central Government is pleased to extend to the Province of Delhi or such part thereof as is specified in the second column of the Schedule annexed hereto, the enactments specified in the corresponding entry in the first column thereof, subject to the restrictions and modifications, if any, specified in the corresponding entry in the third column, and to the following provisions, namely :–
(i) references in the first column of the said Schedule to an Act shall be deemed to be references to that Act as in force in the Punjab on the date of this notification, and
(ii) references in the said enactments to the Provincial Government shall be construed as references to the Chief Commissioner of Delhi, and references to the Punjab shall be construed as references to the Province of Delhi.
Provided that all notification, orders, bye-laws, rules and regulations made or issued under any of the enactments extended to the Province of Delhi or any part thereof by the notifications hereby superseded, shall continue to be in force as if made or issued under the corresponding enactment extended by this notification; and all proceedings taken under any of the enactments extended by the superseded notifications shall be continued as if taken under the corresponding enactment extended by this notification.” (emphasis supplied)
44. The relevant extract of the schedule to this notification reads as follows:

“SCHEDULE

45. Thus, by virtue of the said notification dated 03.06.1939, inter alia, the PRI Act was extended to, and became applicable to the province of Delhi. Consequently, the enactments amended by the PRI Act – which, and to the extent that they were applicable to Delhi, stood amended. By virtue of Section 35 of the PRI Act, clause (c) to the proviso to Section 60(1) also stood amended as noticed hereinabove in paragraph 38.
46. On 05.10.1940, the Punjab Relief of Indebtedness (Amendment) Act, 1940, as amended by the Provincial Legislature, came into force. Several provisions of the PRI Act were amended, including Section 35 thereof (by virtue of Section 16 of the Punjab Relief of Indebtedness (Amendment) Act, 1940). Section 16 of the PRI (Amendment) Act reads as follows:
“Amendment of section 35 of Act VII of 1924.
16. For section 35 of the said Act, the following section shall be substituted, namely:-
Amendment “35. In section 60 of the Code of Civil of section 60 of the Code of Civil Procedure, 1908. Procedure, 1908-
(a) in subsection (1) –
(i) in clause (c), for the words “occupied by him” the following words shall be deemed to be substituted, namely :-
not proved by the decree-holder to have been let out on rent or lent to persons other than his father, mother, wife, son, daughter, daughter-in- law, brother, sister or other dependents or left vacant for a period of a year or more;
(ii) after clause (c), the following clauses shall be deemed to be inserted, namely:-
(cc) Milch animals, whether in milk or in calf, kids, animals used for the purposes of transport or draught carts, and open spaces or enclosures belonging to an agriculturist and required for use in case of need for tying cattle, parking carts, or stacking fodder or manure;
(ccc) one main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him: Provided that the protection afforded by this sub-section shall not extend to property which has been mortgaged;
(b) after subsection (2), the following subsections shall be deemed to be inserted namely:-
(3) Notwithstanding any other law for the time being in force an agreement by which a debtor agrees to waive any benefit of any exemption under this section shall be void.
(4) For the purposes of this section the word
“agriculturist” shall include every person whether as owner, tenant, partner or agricultural labourer who depends for his livelihood mainly on income from agricultural land as defined in the Punjab Alienation of Land Act, 1900.
(5) Every member of a tribe notified as agricultural under the Punjab Alienation of Land Act, 1900, and every member of a scheduled caste shall be presumed to be an agriculturist until the contrary is proved.
(6) No order for attachment shall be made unless the Court is satisfied that the property sought to be attached is not exempt from attachment or sale.”(emphasis supplied)
47. The PRI Act was further amended vide the Punjab Relief of Indebtedness (Amendment) Act, 1942. Insofar as it is relevant, Section 5 of this Amendment Act reads as follows:
“5. Amendment of section 35 of Act VII of 1934. – In section 35 of the said Act –
In clause (a) –
(i) after the words, brackets and figure “in sub-section (1)” the words “in the proviso” shall be inserted:
(ii) in sub-clause (ii) for the proviso to paragraph (ccc), the following proviso shall be substituted, namely: –
“Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered.””
48. Post the enforcement of the Constitution of India, on 08.06.1956, the Central Government issued a Notification bearing S.R.O. 1354 in exercise of the powers conferred by Section 2 of the Part C States (Laws) Act, 1950, extending to the State of Delhi, the enactment specified in the First Column of the Schedule thereto annexed, subject to the modifications specified in the corresponding entry in the Second Column of the Schedule. The said Notification dated 08.06.1956 bearing S.R.O. 1354, insofar as it is relevant, reads as follows:
“New Delhi -2, the 8th June 1956
S.R.O. 1354 – In exercise of the powers conferred by section 2 of the Part C States (Laws) Act, 1950 (XXX of 1950), the Central Government hereby extends to the State of Delhi the enactments specified in the first column of the Schedule hereto annexed subject to the modifications, if any, specified in the corresponding entry in the second column thereof, and to the following provision, namely:–
References in the Punjab Relief of Indebtedness (Amendment) Act, 1940 (Punjab Act XII of 1940) to the State Government shall be construed as references to the Chief Commissioner of Delhi.
THE SCHEDULE
Name of Act 1 Modifications 2
The Punjab Relief of Indebtedness (Amendment) Act, 1940 (Punjab Act XII of 1940).
1. In section 2 for the words and figures “the Punjab Relief of Indebtedness Act, 1934”, the words and figures “the Punjab Relief of Indebtedness Act, 1934, as extended to the State of Delhi”shall be substituted.
Indebtedness Act, 1934”, the words and figures “the Punjab Relief of Indebtedness Act, 1934, as extended to the State of Delhi”shall be substituted.
2. In Section 3 – (i) for the words “Imperial Bank”, the words “State Bank”shall be substituted; and (ii) for the words and figures “the Co-operative Societies Act, 1912” the words and figures “the Bombay Co-operative Societies Act, 1925, as extended to the State of Delhi” shall be substituted.
3. In section 14, in clause (b) for the words, figures and brackets “commencement of the Punjab Relief of Indebtedness (Amendment) Act, 1940”, the words, figures and brackets “date of the extension of the Punjab Relief of Indebtedness (Amendment) Act, 1940, to the State of Delhi” shall be substituted.
4. In section 16, in clause (b), the words and figures “as defined in the Punjab Alienation of Land Act, 1900” and “every member of a tribe notified as agricultural under the Punjab Alienation of Land Act, 1900, and” shall be omitted.
The Punjab Relief of Indebtedness (Amendment) Act, 1942 (Punjab Act VI of 1942)
49. Resultantly, Section 35 of the PRI Act, as amended and extended for application in the State of Delhi, reads as follows:
“35. Amendment of section 60 of the Code of Civil Procedure, 1908 – In section 60 of the Code of Civil Procedure, 1908-
(a) in sub-section (1) [in the proviso],
(i) in clause (c), for the words “occupied by him” the following words shall be deemed to be substituted, namely :-
“not proved by the decree-holder to have been let out on rent or lent to persons other than his father, mother, wife, son, daughter, daughter-in-law, brother, sister or other dependants or left vacant for a period of a year or more:”
(ii) after clause (c), the following clauses shall be deemed to be inserted, namely :-
“(cc) Milch animals, whether in milk or in calf, kids, animals used for the purposes of transport or draught cart and open spaces or enclosures belonging to an agriculturist and required for use in case of need for tying cattle, parking carts, or stacking fodder or manure;
(ccc) one main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him:
[Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered.]”
(b) after sub-section (2), the following sub-sections shall be deemed to be inserted, namely :-
“(3) Notwithstanding any other law for the time being in force an agreement by which a debtor agrees to waive any benefit of any exemption under this section shall be void.
(4) For the purposes of this section the word “agriculturist” shall include every person whether as owner, tenant, partner or agricultural labourer who depends for his livelihood mainly on income from agricultural land.
(5) Every member of a scheduled caste shall be presumed to be an agriculturist until the contrary is proved.
(6) No order for attachment shall be made unless the court is satisfied that the property sought to be attached is not exempt from attachment or sale.” (emphasis supplied)
50. For the sake of completeness, we may also notice the Punjab Moneylending and Debtors‟ Protection Laws (Extension and Amendment) Act, 1960, whereby, inter alia, the PRI Act, 1934 and all Rules, Notifications and Orders made, and all directions or instructions issued thereunder, which were in force immediately before the commencement in the territories, and which immediately before 01.11.1956 were comprised in the State of Punjab, were extended to and came in force in the transferred territories i.e. the territories comprised in the State of Patiala and East Punjab States Union before 01.11.1956.
51. Section 3 of the Punjab Moneylending and Debtors‟ Protection Laws (Extension and Amendment) Act, 1960 reads as follows:
“3. Extension of certain moneylending, and debtors‘ protection laws to transferred territories – (1) The following Acts, namely, –
(i) the Punjab Regulation of Accounts Act, 1930 (I of 1930),
(ii) the Punjab Relief of Indebtedness Act, 1934 (VII of 1934),
(iii) the Punjab Debtors‘ Protection Act 1936 (II of 1936), and
(iv) the Punjab Registration of Moneylenders Act, 1938 (IV of 1938),
and all rules, notifications and orders made, and all directions or instructions issued, thereunder, which are in force immediately before the commencement of this Act in the territories which, immediately before the 1st November, 1956, were comprised in the State of Punjab, are hereby extended to and shall be in force in, the transferred territories.
(2) With effect from the commencement of this Act, the amendments specified in column 4 of the Schedule shall be made in the Acts specified against them in column 3 thereof.”
52. The Schedule to this Act, however, does not make any reference to the PRI Act, 1934. In fact, the aforesaid Punjab Moneylending and Debtors‟ Protection Laws (Extension and Amendment) Act, 1960 is of no relevance for our purpose.
53. The submission of Mr. Gupta, learned senior counsel for the petitioner, firstly, is that Section 2(g) of the Act defines the expression “debt” to mean “debt means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application and includes any liability towards debt securities which remains unpaid in full or part after notice of ninety days served upon the borrower by the debenture trustee or any other authority in whose favour security interest is created for the benefit of holders of debt securities or”. (emphasis supplied)
54. Learned counsel submits that the expression “debt” used in Section 60(1)(ccc) CPC, as applicable to Delhi has to be read and understood as the “debt” defined in Section 2(g) of the Act. He submits that Rule 10 of the Rules provide that all such property, as is by the Code of Civil Procedure, 1908 exempted from attachment and sale in execution of a decree of a Civil Court, shall be exempted from attachment and sale under the Schedule. Thus, the said property cannot be attached and sold to recover the “debt” due to the respondent UBI, since Section 60(1)(ccc) is specifically made applicable in respect of debts due to Banks and Financial Institutions. Learned counsel has placed reliance on C.N. Paramsivam and Ors. v. Sunrise Plaza Tr. Partner and Ors., (2013) 9 SCC 460, wherein the Supreme Court dealt with the issue of legislation by incorporation. The Supreme Court in paragraph 17 of its decision referred to Principles of Statutory Interpretation by Justice G.P. Singh, and quoted the following text from the said book, which reads:
” Incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been ‘bodily transposed into it‘. The effect of incorporation is admirably stated by Lord Esher, M.R.:
‘… If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it….‘ [Wood’s Estate, In re, ex p Works and Buildings Commissioners, (1886) 31 Ch D 607 (CA) at p. 615]
Even though only particular sections of an earlier Act are incorporated into later, in construing the incorporated sections it may be at times necessary and permissible to refer to other parts of the earlier statute which are not incorporated. As was stated by Lord Blackburn:
‘When a single section of an Act of Parliament is introduced into another Act, I think it must be read in the sense which it bore in the original Act from which it was taken, and that consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant, though those other sections are not incorporated in the new Act Portsmouth Corpn. V. Smith, (1885)10 A.C. 364 (HL) at p371 ‘ (emphasis supplied)
55. Learned counsel for the petitioner submits that the provisions of the Act have overriding effect. He refers to Section 34(1) of the Act, which provides “Save as provided under sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
56. Thus, the expression “debt”, as defined in the Act would override the meaning of the expression “debt” in any other law, including the PRI Act as extended to Delhi. Learned counsel for the petitioner places reliance on The Tax Recovery Officer II, Sadar, Nagpur V. Gangadhar Vishwanath Ranade (dead) through Mrs. Shobha Ravindra Nemiwant, AIR 1999 SC 427, to submit that the Recovery Officer is bound to examine who is in possession of the property, and in what capacity. He can only attach property in possession of the assessee in his own right, or in possession of a tenant or a third party on behalf of/ for the benefit of the assessee. He cannot declare any transfer made by the assessee in favour of a third party as void. If the department finds that a property of the assessee is transferred by him to a third party with the intention to defraud the Revenue, it will have to file a suit under Rule 11(6) to have the transfer declared void under Section 281.
57. Learned counsel submits that this Court has examined the scope of the exemption granted under Section 60(1)(ccc), and has even applied the same in several cases relating to the recovery of debt under the Act. In this regard, he places reliance on the decision of a Division Bench of this Court in S.C. Jain v. Union of India, AIR 1983 Delhi 367 (DB). In this decision, the question determined by the Division Bench was whether Clause (ccc) inserted in the proviso to Section 60(1) of the Code by means of Section 35 of the PRI Act, as amended and extended to Delhi, stands repealed after the passing of the Amendment Act 104 of 1976, amending the Code, specially in the light of Section 97(1) of the amendment Act of 1976. Section 97(1) of the Amendment Act of 1976, whereby the Code was amended, reads as follows:
“97(1) Any amendment made, or any provision inserted in the Principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.”
58. Learned counsel submits that in paragraph 4 of this decision, the Division Bench set out the consequence of the amendments to the PRI Act, as applicable to the State of Punjab by observing “that though under the Code there was no exemption from attachment and sale of a main residential house of judgment-debtor yet by virtue of these Punjab Amendments the code, in so far as in its application to the State of Punjab was concerned, clause (ccc) exempted from attachment one main residential house belonging to a judgment-debtor.”
59. The Division Bench observed, in respect of the Notification dated 08.06.1956, issued in exercise of the power conferred by Section 2 of Part C State Laws Act, 1950 that “The result was that the protection of clause (ccc) in proviso to Section 60(1) of the Code also became available in Delhi from this date onwards.”
60. The case of the petitioner in S.C. Jain (supra) was that he was one of the joint owners of the house which was the main residential house of the petitioner and the same was, therefore, exempted from attachment and sale under Clause (ccc) of proviso to Section 60(1) of the Code, as applicable to Delhi. This argument of the petitioner was countered by the respondent by placing reliance on Section 97(1) of the Amendment Act 104 of 1976, whereby the Code was amended. The submission of the respondent taken note of by the Division Bench in paragraph 8 of the decision reads as follows:
“…..The contention is that clause (ccc) was inserted in the Code by State Legislature of Punjab and that it is not consistent with the provisions of the Code as amended in 1976, because there is no exemption from attachment of a main residential house to be found in the Principal Act, the result being that clause (ccc) in proviso to Section 60(1) of the Code, as applicable in Delhi stands repealed. This contention of counsel for the revenue finds support from a decision of Luthra, J. in S. Rau’s I.A.S. Study Circle v. Smt. Sushila Nanda, 1981 Delhi Law Times 174, (1) and Sultan Singh, J. in Tikkan Lal v. Govind Lal, 1983 Rajdhani Law Reporter (Note) 9 (2), where both the learned Judges have held that clause (ccc) in proviso stands repealed and exemption for a main residential house is no longer available in Delhi.”
61. Another submission of the petitioner considered by the Division Bench was that clause (ccc) of proviso to Section 60(1) was not inconsistent with the main provision of Section 60 of the Code, and that it was only an additional and beneficial provision giving extra benefits that are covered by the main provision of Section 60(1)(c) of the Code and, thus, no question of repugnancy arises. The Division Bench rejected the view taken by the two learned Single Judges of this Court, that Clause (ccc) was no longer available in Delhi. In paragraph 10 of its decision, the Division Bench observed:
“10. Now Section 97(1) of 1976 Act only purports to repeal amendments in stated circumstances but only if inserted by Act of legislature or a High Court. The contention of Mr. Tikku is that the insertion of clause (ccc) in proviso to Section 60(1) of the Code, though effected by Punjab Amendment Act XII of 1940 and Punjab Act VI of 1942 a State amendment, cannot be treated to be so, when extended to Delhi by a notification of 1956 issued by the Central Government as mentioned above. The extension in Delhi, it is claimed is by an Act of Parliament and thus is outside the ambit of Section 97(1) of 1976 Act. So far as Punjab is concerned, there is no dispute that the insertion of clause (ccc) in proviso is by virtue of a legislation by the State Legislature. If the view of Luthra, J. and Sultan Singh, J. that the provision of the Code as amended by 1976 are inconsistent with clause (ccc) (of which we express no opinion) is correct the result undoubtedly would be that clause (ccc) may no longer be available so far as the State of Punjab is concerned. But the same consequence does not follow in the Union territory of Delhi.” (emphasis supplied)
62. The Division Bench held that the extension of PRI Act to the Union Territory of Delhi was an exercise of the authority conferred by an Act of Parliament. In paragraph 13, the Division Bench observed;
“……In this view of the matter it is indisputable that Punjab Act XII of 1940 and Punjab Act VI of 1942, which inserted clause (ccc) in proviso to sub-section (1) of Section 60 of the Principal Act (namely the Code) when extended to the Union territory of Delhi, by means o(sic of) Central Government’s notification of June, 1956, must be deemed to be, in so far as Delhi is concerned, insertions made not by the State Legislature but by the Parliament itself, if so, obviously Section 97(1) of 1976 Act is inapplicable because it only applies, if any amendment is made by the State Legislature or a High Court.”
63. The conclusion drawn by the Division Bench is contained in paragraph 14, which reads as follows:
“14. In that view it has to be held that Section 97(1) of 1976 Act is of no assistance to the Revenue. Thus the benefit of clause (ccc) in proviso to Section 60(1) of the Code, as applicable to Delhi, continues to be available to a judgment- debtor provided he satisfies the conditions mentioned therein. We must therefore over rule the decisions of Luthra-Sultan Singh, JJ mentioned above though on different grounds, as not laying correct law.” (emphasis supplied)
64. In paragraph 16 of the decision, the Division Bench clarified that “By our judgment all that we are holding is that clause (ccc) in proviso to Section 60(1) of the Code has not been repealed, so far as Delhi is concerned, but nothing said in our judgment should be taken even remotely to suggest whether the case of the petitioner is covered by clause (ccc) or not. Our decision only relates to the question of law. The question whether it is the main residential house and other requirements of clause (ccc) are satisfied or not, has to be decided by the Tax Recovery Officer. ”
65. Learned counsel for the petitioner has placed heavy reliance on the observations made by the Division Bench on paragraph 20 of its decision, which reads as follows:
“20. The next contention of Mr. Wazir Singh was that as clause (ccc) was brought in by the Punjab Relief of Indebtedness Act, it would be available only in proceedings under 1934 Act, as amended. The argument is not understandable. Part IV of 1934 Act sets up Debt Conciliation Boards for settlement of particular kinds of debts. Section 35 of 1934 Act, as amended, inserted clause (ccc) in proviso to Section 60(1) of the Code. Under Section 222 read with Rule
10 of the Second Schedule to the Income-tax Act, all such property as is by the Code of Civil Procedure, 1908, exempted from attachment and sale in execution of a decree of a civil court shall be exempt from attachment and sale under this Schedule. Hence in proceedings before the Tax Recovery Officer, in Delhi the provisions of clause (ccc) in proviso to Section 60(1) of the Code are applicable.” (emphasis supplied)
66. Premised on the aforesaid observation, the submission of learned counsel for the petitioner is that the Division Bench rejected the submission of the respondent/ revenue, that clause (ccc) of the Proviso to Section 60(1) would be available only in respect of proceedings under the PRI Act 1934, as amended.
67. Learned counsel for the petitioner submits that Clause (ccc) of the proviso to Section 60(1) should be construed and read plainly, and that there is no occasion for this Court to expand or restrict the meaning and scope of that provision. In this regard, he places reliance on Centre for Public Interest Litigation v. Union of India and Others, 139 (2007) DLT 289 (DB), wherein the Division Bench held:
“42. We are not able to find much substance in the contention raised on behalf of the private respondents. It is a settled rule of interpretation that whenever a provision is amended, the amendment must be construed and read on its simple language and there is no occasion before the Court to expand the meaning and scope of that provision. The ‘Doctrine of Plain Meaning‘ is a primary and often applied principle to the rule of interpretation. The author says that it may look somewhat paradoxical that plain meaning rule is not plain and requires some explanation. The rule that plain words require no construction, start with the premise that words are plain, which itself is a conclusion reached after construing the words. When the words of a statute are clear, plain and unambiguous, i.e. they are reasonably susceptible to only one meaning, the Courts would give effect to that meaning and not influenced by consequences.. The rule stated by TINDAL, C.J. in Sussex Peerage case is in the following form:
This doctrine is a first principle of rule of interpretation and it requires the Court to interpret the provisions on their simple and plain reading without any addition or deletion. Maxim A pactis privatorum publico juri non derogatur is an accepted principle of interpretation of provisions in England as well as in India. From the words of law, there should not be any departure. When the precise and unambiguous words are used in a rule or instruction, then, they must be understood and expound limited to their natural and ordinary sense. The words used best declare the intention of the rule maker.” (emphasis supplied)
68. On the same aspect, he places reliance on Commercial Tax Officer and Ors. v. M/s. Biswanath Jhunjhunwala and Anr, AIR 1997 SC 357.
69. Learned counsel for the petitioner has also placed reliance on Gurudevdatta VKSSS Maryadit and Ors. v. State of Maharashtra and Ors., AIR 2001 SC 1980 to submit that the statement of object and reasons of the PRI Act – taken note of hereinabove, cannot be relied upon to examine the scope of the amendment to Section 35 of the PRI Act, whereby Section 60 of the CPC, as applicable to the State of Punjab was amended, which was later on extended and made applicable to Delhi. In this decision, the Supreme Court quoted its observations in Ashwini Kumar Ghose and Anr. v. Arabinda Bose and Anr., AIR 1952 SC 369, wherein Patanjali Sastri, CJ had observed in paragraph 32:
“32. As regards the propriety of the reference to the statement of objects and reasons, it must be remembered that it seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But those objects and reasons may or may not correspond to the objective which the majority of Members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an Act of the legislature for they do not form part of the Bill and are not voted upon by the members. We, therefore, consider that the Statement of objects and reasons appended to the Bill should be, ruled out as an aid to the construction of a statute.” (emphasis supplied)
70. Learned counsel for the petitioner has submitted that the exemption contained in Clause (ccc) of the Proviso to Section 60 (1) of the Code is in recognition of the basic need of all human beings, one of which is shelter.
In this regard, he places reliance on M/s Shantistar Builders v. Narayan Khimalal Totame and Ors., AIR 1990 SC 630, wherein the Court observed:
“9. Basic needs of man have traditionally been accepted to be three — food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect— physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well- built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud- built fire-proof accommodation.”
71. In this regard, he has also placed reliance on Chameli Singh & Ors. v. State of U.P. & Anr., (1996) 2 SCC 549.
72. Learned counsel for the petitioner has cited Indo Foreign Commercial Agency (Produce) Pvt. Ltd. & Ors. Vs. Punjab and Sind Bank, 183 (2011) DLT 682 (DB), as an instance where the Court invoked Clause (ccc) of proviso to Section 60(1) of the Code, as applicable to Delhi, to set aside the order of restraint against the petitioner from selling, transferring, disposing of, creating any third party interest in respect of a residential property of the petitioner – it being the only residential property of the petitioner/ debtor under the Act.
73. We have considered the submissions advanced by Mr. Ravi Gupta learned senior counsel for the petitioner, and those advanced by Mr. Malhotra as well. The decision of the Division Bench of this Court in S.C. Jain (supra) only examined the issue whether Clause (ccc) of proviso to Section 60(1) of the Code stood repealed, so far as Delhi is concerned, by virtue of Section 97(1) of the Amendment Act, 1976, whereby the Code was amended. The scope of, and the meaning to be ascribed to Clause (ccc) of proviso to Section 60(1) of the Code was not considered by the Division Bench in that case. Even while dealing with the submission of the Revenue (advanced by Mr. Wazir Singh, Advocate) – that Clause (ccc) of proviso to Section 60(1) of the Code having been introduced by the PRI Act, 1934, it was available in proceedings under the PRI Act, 1934, as amended, the Court did not examine the scope and meaning to be ascribed to Clause (ccc) of proviso to Section 60(1) of the Code. Thus, S.C. Jain (supra) cannot be considered to be a binding precedent on the issue that has arisen for our consideration, namely, as to what is the meaning and scope of Clause (ccc) of the proviso to Section 60(1) of the Code; Is the expression “judgment- debtor” found in Clause (ccc) to be understood as any and every “judgment debtor” against whom a “debt” – as generally understood has been determined in a judicial/ quasi-judicial proceeding, or, whether the expression “judgment debtor” used in Clause (ccc) of the proviso to Section 60(1) of the Code has to be understood as a judgment debtor who is a “debtor” as defined and understood under the PRI Act in respect of a “debt” as defined in the PRI Act?
74. The decision in Indo Foreign Commercial Agency (supra) is also not an authority on the proposition which we are considering, since it merely proceeded on the basis that a debtor under the Act would enjoy the protection under Clause (ccc) of proviso to Section 60(1) of the Code, without examining the meaning and scope of Clause (ccc) of proviso to Section 60(1) of the Code.
75. As noticed hereinabove, the PRI Act was enacted in Punjab in 1934 “to provide for the relief of indebtedness in Punjab”. We have examined the nature and structure of the PRI Act. It defines the expression “debt” in Section 7(1) of the Act, inter alia, to exclude from the meaning of the said expression “debts incurred for the purpose of trade, arrears of wages, land revenue or anything recoverable as arrear of land revenue, debts due to cooperative banks or to cooperative societies or to any banking company registered under the Indian Companies Act, 1913 or the law relating to companies for the time being in force in British India”. Thus, the expression “debt” used in the PRI Act is defined in a restricted way. It specifically excludes debts due to banking companies registered under the Indian Companies Act, 1913 or the law relating to companies in force for the time being in British India.
76. Similarly, the expression “debtor” defined in Section 7(2) is defined narrowly, inter alia, to mean a person who owes a debt, i.e. a debt of the kind defined in Section 7(1), and who earns his livelihood mainly by agriculture and is either a landowner, or tenant of agricultural land, or a servant of a land owner, or a tenant of agricultural land, or who earns his livelihood as a village menial paid in cash or kind for work connected with agriculture.
77. The statement of objects and reasons for enactment of the PRI Act, contained in the Bill moved in the Legislature, also throws light on the background in which the PRI Act was passed. The relevant extract thereof reads as follows:
“Statement of objects and reasons – In 1929 the total volume of agricultural debt in the Punjab was estimated by the Provincial Banking Enquiry Committee at 135 crores of rupees. Since that date the sharp fall in the prices of agricultural produce has made the pressure of debt on the cultivator even heavier than these figures indicate, and the problem of finding some relief has now become a very acute one. At the end of March, 1932, the Punjab Government appointed a committee of members of the Legislative Council to consider this problem and to submit proposals for its solution. The Report of the Committee has been debated in the Legislative Council, and has been for some time under the careful and detailed consideration of Government, which have also been studying the steps taken in other provinces for the relief of indebtedness. In formulating the legislative measures embodied in this Bill, the Punjab Government have endeavoured to hold the balance fairly between the debtor and creditor and to give the former such relief as is possible without making any change in the law which might have the effect of destroying or seriously impairing the whole system of rural credit.” (emphasis supplied)
78. Thus, the entire focus and thrust of the Bill moved– which came to be enacted as the PRI Act, was to ameliorate the miseries of small agriculturists, while balancing the rights of such debtors and creditors.
79. When one looks at the definitions of the expressions “debtor” and “debt” in the light of the objects of the PRI Act, it becomes clear that the focus of the PRI Act was to grant relief from indebtedness in the Punjab to particular class of debtors as defined in the Act and, even in respect of such debtors, in respect of a particular kinds of debts that such debtors may owe. The purpose of the Act was not to grant relief from indebtedness to all debtors – of whatever kind, and in respect of all debts – of whatever nature, and to whomsoever owed.
80. Section 9 of the PRI Act – taken note of hereinabove, brings out that even in respect of a debtor covered by the PRI Act – who owes a debt of the kind defined in Section 7(1) of the Act, different treatment is meted out to debtors who owe debts exceeding the particular threshold, from those who owe debts lesser than the threshold limit. This is evident from Section 9 of the PRI Act which enables the debtor, or any of his creditors, to approach the Debt Conciliation Board, if the debt does not exceed Rs.10,000/- or such larger sum as the Local Government may prescribe for any particular area. Section 9 of the PRI Act, therefore, again shows that the intendment of the PRI Act was not to paint all debtors, in respect of all debts owed by them – to whatever limit, with the same brush.
81. We have also noticed from the structure of the PRI Act, that under the umbrella of the said Act, i.e. for the purpose of attainment of the objectives of the PRI Act, various provisions in other laws/ enactments were introduced/ amended, as taken note of hereinabove. In the same vein, Section 35 of the PRI Act sought to introduce, inter alia, Clause (ccc) of proviso to Section 60(1) of the Code, with which we are concerned. Inter alia, Clause (ccc) of proviso to Section 60(1) of the Code was initially introduced in the PRI Act as applicable in the Punjab. As noticed hereinabove, eventually, PRI Act, as amended, was extended to Delhi and with it, inter alia, Clause (ccc) to the proviso to Section 60(1) of the Code came to be inserted in the CPC as applicable to Delhi vide Central Government notification dated 08.06.1956 bearing SRO No.1354 in exercise of powers conferred by Section 2 of the Part-C States (Laws) Act, 1950. It is pertinent to note that by the said notification dated 08.06.1956, the Central Government extended to the State of Delhi the PRI Act, as amended, and it is not that the Parliament, de hors the provisions of the PRI Act, introduced amendments in the CPC so as to include, inter alia, Clause (ccc) in the proviso to Section 60(1) of the Code, as applicable to Delhi.
82. Aforesaid being the position, in our considered view, the expression “judgment debtor” used in Clause (ccc) of proviso to Section 60(1) of the Code has to be read and understood in the context of the meaning ascribed to the expression “debtor” in the parent Act, i.e. the PRI Act as amended, and the expression “judgment debtor” cannot be understood to mean any “judgment debtor”, as generally understood.
83. Pertinently, the extracts from the Principles of Statutory Interpretation by Justice G.P. Singh relied upon by the Supreme Court in
C.N. Paramsivam & Ors. (supra) support our view. The learned author has observed that “Even though only particular sections of an earlier Act are incorporated into later, in construing the incorporated sections it may be at times necessary and permissible to refer to other parts of the earlier statute which are not incorporated”. The learned author quotes Lord Blackburn, where he observes:
“When a single section of an Act of Parliament is introduced into another Act, I think it must be read in the sense it bore in the original Act from which it was taken, and that consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant, though those other sections are not incorporated in the new Act.”
84. The Supreme Court quoted with approval the same text from Principles of Statutory Interpretation, 7th Edition 1999 by Justice G.P. Singh in Surana Steels Pvt. Ltd Vs. Deputy Commissioner of Income Tax and Others, (1999) 4 SCC 306, while construing explanation Clause (iv) to Section 115J of the Income Tax Act. The question that arose for consideration before the Supreme Court was: Whether the term “loss” as appearing in Section 205(1) first Proviso, Clause (b) of the Companies Act, 1956, read with Section 115-J of the Income Tax Act, 1961 means “including depreciation”. Explanation to Section 115-J and Clause (iv) reads:
“Explanation.—For the purposes of this section, ‘book profit‘ means the net profit as shown in the profit and loss account for the relevant previous year prepared under sub-section (1-A), as increased by—
* * * and as reduced by,—
* * *
(iv) the amount of the loss or the amount of depreciation which would be required to be set off against the profit of the relevant previous year as if the provisions of clause (b) of the first proviso to sub-section (1) of Section 205 of the Companies Act, 1956 (1 of 1956), are applicable.”
85. While answering the said question, the Supreme Court, inter alia, observed as follows:
“11. Section 115-J explanation clause (iv), is a piece of legislation by incorporation. Dealing with the subject, Justice G.P. Singh states in Principles of Statutory Interpretation (7th Edn., 1999)—
“Incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been’bodily transposed into it‘. The effect of incorporation is admirably stated by Lord Esher, M.R.: ‘If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen, or printed in it.‘ (p. 233)
Even though only particular sections of an earlier Act are incorporated into later, in construing the incorporated sections it may be at times necessary and permissible to refer to other parts of the earlier statute which are not incorporated. As was stated by Lord Blackburn:
‘When a single section of an Act of Parliament is introduced into another Act, I think it must be read in the sense it bore in the original Act from which it was taken, and that consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant, though those other sections are not incorporated in the new Act.‘ ” (p. 244)
12. Once we have ascertained the object behind the legislation and held that the provisions of Section 205 quoted hereinabove stand bodily lifted and incorporated into the body of Section 115-J of the Income Tax Act, all that we have to do is to read the provisions plainly and apply rules of interpretation if any ambiguity survives. Section 205(1) first proviso clause (b), of the Companies Act brings out the unabsorbed portion of the amount of depreciation already provided for computing the loss for the year. The words “the amount provided for depreciation” and “arrived at in both cases after providing for depreciation” make it abundantly clear that in this clause “loss” refers to the amount of loss arrived at after taking into account the amount of depreciation provided in the profit and loss account… … …” (emphasis supplied)
86. Thus, clause (iv) was read and understood in the context of Section 205 of the Companies Act, 1956. Similarly, the expression “judgment debtor” used in Clause (ccc) of proviso to Section 60(1) of the Code has to be read and understood in the context of the expression “debtor” used in the PRI Act, lest it leads to wholly unintended benefits being showered upon “debtors” for whose benefit the said clause was not introduced, and causes injustice to creditors against whom it was never intended to be used as a shield.
87. Interestingly, while construing the provisions of Section 35 of the PRI Act – by which the proviso to Section 60(1) were amended, the Lahore High Court on various occasions construed the exemption contained in the provisos to Section 60(1) of the Code strictly. We may refer to the following decisions in this regard:
(i) Choudhury Muhammad Ali Vs. Lala Ram Dass, 1937 171 I C 932;
(ii) Thakar Das Vs. Ram Rakha Mal, 1938 173 I C 497;
(iii) Bhola Singh Vs. Raman Mal, AIR 1941 Lahore 28.
88. Pertinently, even in S.C. Jain (supra) while agreeing with the view taken by Rajindar Sachar, J. on the issue whether Clause (ccc) of proviso to Section 60(1) of the Code continued to be available even after enactment of Section 97 (1) in the Amendment Act, 1976, whereby the Code was amended, D.R. Khanna, J. lamented the exploitation of Clause (ccc) of proviso to Section 60(1) of the Code by persons with large undisclosed incomes. The learned Judge observed in paragraphs 28 and 29 of this decision as follows:
“28. The controversy which has given rise to the present writ petitions is about the attachability of property bearing No. 7, Kasturba Gandhi Marg, New Delhi in realisation of the tax arrears. It is situated over a plot of land measuring 5000 sq. yds., and if the price of land around Connaught Place can moderately be taken as ranging between rupees 4000 and rupees 5000 per sq. yd., the land underneath the property should itself be worth above rupees two crores. The contention of the petitioners is that this property constitutes as their main residential house, and is therefore, exempt in terms of the provision contained in clause (ccc) of the proviso to Section 60 of the Code of Civil Procedure.
29. It will be relevant here to here to trace the history of how this provision was introduced in the Code of Civil Procedure. A series of redical fiscal legislations for the amelioration of the plight of poorer sections and agriculturists was set into motion during the Thirties in the erstwhile Province of Punjab by that remarkable legislator Sir Chhottu Ram. One such was the Punjab Relief of Indebtedness Act, 1934. Thereby considerable reliefs were provided to the debtors, and the primary object was to give protection to those debtors who had fallen to unfortunate days, and were likely to be thrown in the wilderness in case their only residential houses were as well attached and sold. It is unfortunate that hat progressive measure in the then existing State of social conditions is being now sought to be exploited by persons with such large undisclosed incomes (which are the bane of our economic and social structure), and with regard to properties worth crores of rupees. Be that as it may, we have to consider what protection is available to the petitioners under the law as it exists at present.” (emphasis supplied)
89. Unfortunately, the meaning and scope of, inter alia, clause (ccc) of the Proviso to Section 60(1) – in the context of the PRI Act, was not placed before the Court and, thus, it was not examined in the light of the object and purpose of the PRI Act and in the light of the Rule of interpretation taken note of hereinabove.
90. Reliance placed on Gurudevdatta VKSSS Maryadit (supra) and Ashwini Kumar Ghose (supra) to submit that the Statement of Objects & Reasons of the PRI Act cannot be looked into for the purpose of construing the scope of the amendment introduced in the Code by Section 35 of the PRI Act is also erroneous.
91. In Workmen of Dimakuchi Tea Estate Vs. Management of Dimakuchi Tea Estate, AIR 1958 SC 353, the Supreme Court quoted the following extract from Maxwell‟s Interpretation of Statutes, 9th Edition, p.55:
“The words of a Statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strict grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained.”
92. The Courts have declined “to be bound by the letter, when it frustrates the patent purposes of the Statute”. Cabell Vs. Markham, 148 F 2d 737 (2d cir 1945), (Judge Learned Hand). (See Principles of Statutory Interpretation by Justice G.P. Singh 12th Edition 2010 page 119).
93. In M/s Doypack Systems Pvt. Ltd Vs. Union of India & Others, (1988) 2 SCC 299, the Supreme Court observed in paragraph 42 as follows:
“42. It has to be reiterated, however that the Objects and Reasons of the Act should be taken into consideration in interpreting the provisions of the statute in case of doubt. This is the effect of the decision of this Court in K.P. Varghese v. ITO [(1981) 4 SCC 173 : 1981 SCC (Tax) 293 :
AIR 1981 SC 1922 : (1982) 1 SCR 629] where this Court reiterated that the speech made by the Mover of the Bill explaining the reason for the introduction of the Bill could certainly be referred to for the purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation was enacted. It has been reiterated that interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. See in this connection the observations of this Court in Chern Taon Shang v. Commander S.D. Baijal [(1988) 1 SCC 507 : 1988 SCC (Cri) 162] … … …” (emphasis supplied)
94. In the present context, it is essential to refer to the Objects & Reasons of the PRI Act to construe the meaning of the amendment introduced in the CPC by Section 35 of the PRI Act, to prevent absurd results of the kind lamented about by D.R. Khanna, J. in S.C. Jain (supra). The intention of the Legislature could never have been to provide protection against attachment and sale in execution of a decree, of the residential property owned by a judgment debtor – irrespective of the nature and extent of the residential property that the judgment debtor may own, and irrespective of the standing/ avocation/ background of the debtor, or the creditor. The interpretation of Clause (ccc) of proviso to Section 60(1) of the Code in a plain and grammatical way, de hors the context in which the said Clause came to be introduced by the extension of the PRI Act as amended to Delhi, in the Code as applicable to Delhi, would continue to throw up completely absurd results, where debtors occupying extremely large and valuable properties – the value whereof far exceeds the debt owed to the decree holder/ certificate holder, would get away without discharging their adjudicated liability. Such an interpretation would strike at the very foundation of the Rule of Law. It would provide a convenient escape to a person who obtains a loan from a bank, or other financial institution, or person, or otherwise incurs a financial liability, by simply investing the loan amount or the debt due in buying a residential property for himself, while ensuring that he has no other such property, and when the time to repay the same comes, to block the recovery by resort to Clause (ccc) of proviso to Section 60(1) of the Code, even after the liability is determined upon adjudication. The interpretation sought to be canvassed by the petitioner in respect of Clause (ccc) of proviso to Section 60(1) of the Code would encourage fraudulent contrive by debtors to evade their liability which, certainly, would not be conducive to the preservation of the Rule of Law. Therefore, in our view, reliance placed by the petitioner on the aforesaid decisions in Gurudevdatta VKSSS Maryadit (supra) and Ashwini Kumar Ghose (supra) is misplaced.
95. Reliance placed by learned counsel for the petitioner on Section 34(1) of the Act is also misplaced, and does not advance the submission of learned counsel that while construing the meaning of Clause (ccc) of proviso to Section 60(1) of the Code, the expression “debt” should be understood as the debt defined in Section 2(g) of the Act. The definition of the expression “debt” contained in Section 2(g) is for the purpose of the Act. Section 2 opens with the words “In this Act, unless the context otherwise requires, –
… … …”. Therefore, the word “debt” is defined in Section 2(g) in the Act, for the purpose of the Act. Even that definition may not be adopted, if the context otherwise requires. Clause (ccc) of proviso to Section 60(1) of the Code has to be viewed in the context of the PRI Act since, it is by virtue of the PRI Act and, to fulfill the purpose & object of the said PRI Act, namely, to grant relief against indebtedness to agriculturists etc., that the said Clause (ccc) was introduced in the proviso to Section 60(1) of the Code.
96. Reliance placed by the petitioner on Gangadhar Vishwanath Ranade (dead) through Mrs. Shobha Ravindra Nemiwant (supra) is of no avail.
This decision has no concern with the issue examined by us. The petitioner has sought to place reliance on the observation made by the Supreme Court in paragraph 9 of this decision, which reads as follows:
“9. The Tax Recovery Officer, therefore, has to examine who is in possession of the property and in what capacity. He can only attach property in possession of the assessee in his own right, or in possession of a tenant or a third party on behalf of/for the benefit of the assessee. He cannot declare any transfer made by the assessee in favour of a third party as void. If the Department finds that a property of the assessee is transferred by him to a third party with the intention to defraud the Revenue, it will have to file a suit under Rule 11(6) to have the transfer declared void under Section 281.”
97. The said property was attached while the same was in possession of the BRD (CD-3) in his own right. The Recovery Officer has had no occasion to declare the transfer made by the BRD (CD-3) to be void, since the property was already attached even prior to the said transfer.
98. Reliance placed by learned counsel for the petitioner on the Centre for Public Interest Litigation (supra) is not apposite. This is for the reason that Clause (ccc) of proviso to Section 60(1) of the Code has not been introduced by the Parliament by the normal route of amendment of the Code. The said provision, along with others, has been incorporated in the Code as applicable to Delhi by the extension of the PRI Act, as amended, to Delhi. Therefore, the context in which the said amendment has been brought about in the Proviso to Section 60(1) of the Code is extremely pertinent and cannot be lost sight of.
99. For the same reason, reliance placed on M/s. Biswanath Jhunjhunwala (supra) is also misplaced.
100. The submission of the petitioner premised on M/s Shantistar Builders (supra) and Chameli Singh (supra) needs only to be noticed to be rejected. The basic need of all human beings, inter alia, of shelter, does not mean that debtors, irrespective of their background, can be granted blanket protection under Clause (ccc) of proviso to Section 60(1) of the Code. The Right to Shelter stems from Article 21 of the Constitution of India, which provides that “No person shall be deprived of his life or personal liberty except according to a procedure established by law”. Thus, even this fundamental right is not absolute, and in accordance with the procedure established by law it may be curtailed. The Legislature, in its wisdom, sought to carve out exceptions to Section 60(1) only in exceptional cases of agriculturists, labourers and domestic servants (under Clause (c) of proviso to Section 60(1) of the Code). Other Clauses contained in the Proviso, similarly, provide protection against attachment and sale in execution of a decree. Clause (ccc) has also to be viewed in the light of the other Clauses contained in the Proviso to Section 60(1). If the submission of the petitioner premised on the basic needs of a man for shelter were to be accepted, there would be no justification to allow the attachment and sale in execution of a decree of any residential property, of any person whatsoever. However, that is not the intendment of the law.
101. We, therefore, reject the submission of learned counsel for the petitioner that the said property is exempted from attachment and sale in execution of a decree of a Civil Court under the Code. Reliance placed by the petitioner on Rule 10 of the Rules is, therefore, of no avail and the same is rejected.
102. The writ petition is, accordingly, dismissed.
C.M. No. 53294/2019
103. This application has been preferred by the petitioner to bring on record subsequent facts relating to settlement/ OTS arrived at by the petitioner with the respondent Union Bank of India. The petitioner seeks leave to withdraw the writ petition, as not pressed, in view of the said settlement/ OTS communicated vide letter dated 31.07.2019. In the alternative, the petitioner seeks protection of its interest in view of the said settlement/ OTS with the respondent bank, while passing the final judgment in the petition.
104. The petitioner states that after the judgment was reserved in the present petition on 02.04.2019, the petitioner had approached respondent Union Bank of India with a settlement offer. The petitioner‟s settlement offer of Rs. 41 lakhs against total dues of Rs. 3,24,17,653.36/- (as on 30.06.2019) was accepted by the respondent Union Bank of India vide letter dated 31.07.2019.
105. Learned counsel for the petitioner submits that the petitioner deposited Rs. 8 lakhs in terms of the settlement, and has sought extension of time to comply with the settlement by 15.12.2019. In this regard, the petitioner has placed on record the communications dated 31.07.2019 and 22.10.2019 issued by the Union Bank of India.
106. At the time when the arguments were heard and the judgment reserved, there was no such development. We heard learned counsel for the petitioner on serious questions of law which directly arose in the present case, and the legal question raised by the petitioner – which we have considered in detail, would affect a large number of recovery cases.
107. In these circumstances, at this stage, when the arguments were fully heard and judgment reserved, we are not inclined to permit the petitioner to withdraw the writ petition despite its settlement arrived at with the respondent bank. We have nothing further to add with regard to the settlement arrived at between the parties.
108. The application stands disposed of in the aforesaid terms.

(VIPIN SANGHI) JUDGE
(REKHA PALLI) JUDGE

DECEMBER 12, 2019

The post Ms. Sujata Kapoor Vs Union Bank of India and Ors appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1268 OF 2013
Manju …Appellant
Versus
State of Delhi ….Respondent
J U D G M E N T

R. Subhash Reddy, J.
1. This criminal appeal is filed by the sole accused, aggrieved by the judgment dated 12th March 2010 passed in Criminal Appeal No.168 of 2010 by the High Court of Delhi at New Delhi, by which the appellant herein was convicted and sentenced to life imprisonment for the offence punishable under Section 302, IPC.

2. The appellant herein was admitted in the maternity ward of the Lady Hardinge Medical College Hospital and delivered a baby girl around 12:30 in the afternoon on 24th August 2007. It is the case of the prosecution that as the new born was a baby girl, as such the appellant mother has caused her death by strangulation after baby was handed over to her at 04:30 p.m. on the said date. On 26th August 2007 post-mortem was conducted on the dead body and the doctor opined that cause of death was asphyxia due to ante mortem strangulation. On 31st August 2007 a case was registered against the appellant for the offence under Section 302 IPC, for causing death of her new born baby. She was tried for the charge under Section 302 IPC by the court of Additional Sessions Judge, Fast Track Court, New Delhi. In her statement, she has not pleaded guilty and claimed trial, as such, she was tried in Sessions Case No.78 of 2009 by the Additional Sessions Judge, New Delhi. To prove the charge against the appellant, prosecution in all, has examined 23 witnesses. The evidence against the accused was put to her and her statement was recorded under Section 313, Cr.P.C. she has pleaded her innocence and deposed that she has been falsely implicated by the police in connivance with the hospital authorities, to shift the blame from doctors on duty.

3. The trial court, by judgment dated 19.12.2009, by recording a finding that prosecution has been able to prove complete chain of circumstances and proved its case beyond reasonable doubt, has held the appellantaccused is guilty for the commission of offence under Section 302 IPC and by order dated 22.12.2009 imposed the sentence of imprisonment for life and to pay a fine of Rs.2000/-.

4. As against the conviction recorded and sentence imposed the appellant carried the matter in appeal to the High Court and the High Court by the impugned judgment, confirmed the conviction and sentence imposed on the appellant.

5. We have heard Ms. Mahalakshmi Pavani, learned senior counsel appearing for the appellant and Mr. Anmol Chandan, learned counsel appearing for the State of Delhi.

6. It is contended by learned senior counsel appearing for the appellant that there are no eye witnesses to the incident, and the incident is said to have happened in the ward of the hospital, where the delivery took place. The conviction is based solely on circumstantial evidence and the chain of circumstances is not complete. It is submitted that the appellant had no reason to commit the murder of her new born baby girl as she already had a male child and her parents3 in-law had died even before she was married. By referring to the oral evidence of PW-8 and PW-9, it is submitted that even according to the deposition of said witnesses it is clearly established that the new born was kept in the incubator with an oxygen mask. Further the appellant-mother was sleepy in view of the drugs administered on her and by the time she has seen the child, the new born was dead. It is submitted that the trial court as well as the High Court has committed error in convicting the appellant in absence of proving chain of circumstances, leading to her conviction. It is also brought to the notice of this Court that though incident occurred on 24th August 2007 post-mortem was conducted on the body only on 26th August and further, crime was registered on 27th August 2007. It is submitted, if the totality of evidence is taken into consideration, the guilt of the accused-appellant is not proved beyond reasonable doubt and the judgments of the High Court as well as the trial court are based on surmises and conjectures.

7. On the other hand, it is contended by the learned counsel appearing for the State, after the birth of the child the new born was kept in the incubator upto 04:30 p.m. and after 04:30 p.m. baby girl was handed over to the appellant herein. Thereafter she was found dead by nursing staff of the hospital. Further it is submitted that though the conviction rests on circumstantial evidence, chain is established to prove the guilt of the accused-appellant, and there are no grounds to interfere with the well considered judgment of the trial court, as confirmed by the High Court.

8. Having heard learned counsel on both sides, we have perused the impugned judgments and other material placed on record.

9. In this case it is clear from the record that the conviction of the appellant herein is based on circumstantial evidence. The trial court mainly relied on the evidence of two staff nurses – PW-8 and 9, who have deposed that baby girl was placed with the mother at about 04:30 p.m. and the child was found dead by 06:30 p.m. The husband of the appellant was examined by the prosecution as PW-7. In his deposition he has stated that on 24th August 2007 he had taken his wife, i.e., the appellant herein to Lady Hardinge Medical College Hospital, for delivery and on the same day at around 12:00 noon appellant gave birth to a female baby. He was called to the labour room and the nurse had shown him the new born baby and at that time eyes of the baby were closed. She was not moving and she was not weeping. He has also stated that there was also a red mark on the nose of the child. At around 05:00 p.m. again when he was called by the nurse and he was informed that child had expired and on questioning, staff have not given any reason for death. Further it is also stated that he was not allowed to meet his wife and he was allowed only after post-mortem was conducted on the body of the child on 26th August 2007. None of the doctors on duty on the date of delivery was examined. PW-8, staff nurse was examined. In her deposition she has stated that new born was under observation in incubator. She has deposed that the new born was handed over to the mother at around 04:30 p.m. by taking her out of the incubator. Thereafter at around 06:30 p.m. during rounds Ward Doctor found baby was sick. PW-8 in her cross-examination has stated that baby was on oxygen mask in the incubator. Another staff nurse, by name, Sangeeta Rani was examined as PW-9 who has deposed that on the date of incident she joined duty at 03:00 p.m. and new born baby had been kept in the incubator and had been on oxygen mask.

10. By considering the oral evidence on record and taking into consideration the post-mortem report, the appellant was convicted for the offence by attributing motive that she has strangulated her because the new born is a baby girl. There is no evidence on record to draw such a conclusion against the appellant. It is clear from the evidence on record, as deposed by PW-7, they already had a male child of the age of 5 years. He has also stated that as they already had a male child, they wanted a female child to complete the family. He further stated that his brother had three daughters which shows that the family was not orthodox and was not averse to have a female child. It is clear from the evidence on record that immediately after birth the baby was put in incubator with oxygen mask and it is also clear that she has not opened the eyes and she did not cry. PW-7, though he was declared hostile by the prosecution, but he has stated in his deposition that he was called to the labour room at 05:00 p.m. to inform that his baby had expired and he was not allowed to see her wife who is the appellant herein upto 26th August 2007 on which date dead body of the baby girl was sent for post-mortem. It is also to be noticed that there is no reason for sending the body for post-mortem on 26th August when the baby girl died on 24th August 2007. At the same time, it is also to be noticed that the crime was registered against the appellant only on 31st August 2007. It is true that in the post-mortem, doctor has opined that death is due to asphyxia and there were marks of strangulation, but at the same time if totality of evidence on record is considered, motive is not established and it is totally unnatural for the appellant-mother to kill her own baby by strangulation. It is also clear from the record that in view of the drugs administered on her she was sleepy and drowsy. In absence of any clear evidence on record, High Court as well as the Trial Court committed error, in attributing motive to the appellant that, she has killed her baby as she was female. The Trial court as well as the High Court has based conviction on presumptions without any basis. It is fairly well settled that to base conviction solely on the circumstantial evidence, unless chain of circumstances is established conviction cannot be recorded. From the totality of evidence on record it is clear that the baby girl was put in incubator with an oxygen mask and she has also not opened her eyes and she did not cry after birth. There was a possibility of natural death. Though the doctor has opined in the post-mortem report, the cause of death is asphyxia but in absence of any clear evidence on record it is not safe to convict the appellant for the offence under Section 302 IPC. As the evidence on record is not sufficient to bring home the guilt of the accused, beyond reasonable doubt. We are of the considered view that the appellant is entitled to benefit of doubt, for acquittal from the charge framed against her.

11. For the aforesaid reasons, this criminal appeal is allowed. The judgment of the trial court dated 19.12.2009, as well as the impugned judgment of the High Court dated 12.03.2010, in Criminal Appeal No. 168 of 2010 by the High Court of Delhi are set aside, consequently the appellant is acquitted of the charge framed against her. As the appellant is on bail, her bail bonds stand cancelled.

……………….. J.
[MOHAN M.SHANTANAGOUDAR]
……………….. J.
[R. SUBHASH REDDY]

New Delhi.
December 17, 2019.

The post Manju Vs State of Delhi appeared first on B&B Associates LLP.

P.C.
Heard.
1. Both these Petitions are filed by the wife, questioning the order of denial of maintenance.
The undisputed facts would be noted as under :

2. The parties to the Petition married on 6.5.1980 whereas the Petitioner was divorced by the Respondent in a Hindu Marriage Petition No.252 of 1996 preferred under section 13 of the Hindu Marriage Act, 1956 on 27.4.2000 on the ground of adultery. I am informed that the aforesaid Judgment was subjected to challenge in an Appeal however, the Appeal failed as the delay was not condoned.

3. In the aforesaid background, the Petitioner-wife moved an application for enhancement of maintenance from Rs.150/- and Rs.25/- to the son which was allowed by the impugned order dated 12.8.2010. The learned Magistrate enhanced the maintenance amount to Rs.500/- and Rs.400/- to the wife and son respectively, whereas, the Application for cancellation of the maintenance moved by the husband, pursuant to the provisions of Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973 came to be rejected. As such, the husband preferred a Criminal Revision Application No.204 of 2010. The aforesaid Revision came to be allowed vide the impugned judgment dated 13.7.2015 by the learned Additional Sessions Judge, Sangli. As such these Petitions.

4. As far as Writ Petition No.2547 of 2016 is concerned, the same is preferred by the Petitioner-wife questioning the Judgment dated 13.7.2015 wherein the Judgment dated 12.8.2010 passed by the learned Magistrate, rejecting the application for cancellation of a maintenance amount, came to be allowed.

5. Learned counsel for the Petitioner-wife would urge that, even if the Petitioner is a divorcee, having regard to the provisions of Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973 she is entitled for maintenance as she continues, to be a woman, within the meaning of Sub-section (4) of Section 125 of the Act.

6. He would draw support from the Judgments of the Apex Court in VANAMALA VS H.M.RANGANATHA BHATTA reported in 1995 DGLS (SC) 722 and ROHTAS SINGH VS RAMENDRI reported in 2000 DGLS (SC) 450 so as to support his aforesaid contentions. The sum and substance of the submission is even if there is a decree of divorce passed on the allegation of adultery, still bar under Sub-section (4) of Section 125 of the Act, will not be attracted, as even after divorce, she ceases to have the status of a wife but, she continues to be a woman.

7. Per contra, the aforesaid submissions, learned counsel for the Respondent submits that the divorce proceedings initiated by the Respondent-husband came to be allowed, as the allegation of adultery was proved against the Petitioner-wife. According to him, in view of the statutory embargo under Sub-section (4) of Section 125 of the Act, the Court below has rightly held that the Petitioner is not entitled for maintenance.

8. Considered rival submissions.

9. Learned counsel for the Petitioner has tried to rely on the judgments of the Apex Court in VANAMALA and ROHTAS SINGH supra so as to claim the status of the Petitioner-wife as that of a woman continues, inspite of the divorce ordered on 27.4.2000. The fact remains that, there is an expressed embargo on the right of a woman to claim maintenance, pursuant to the provisions under Sub-section (4) of section 125 of the Act. If the allegation of adultery are proved against such a women or inspite of the husband being ready to maintain her and she refuses to cohabit the women/wife can be refused payment of maintenance.

10. As far as factual matrix of the aforesaid case, namely VANAMALA and ROHTASH SINGH is concerned, both these cases are based on identifying and recognizing the right of a woman who was divorced not on the ground of proved adultery.

11. In the aforesaid background, both these Judgments will be hardly of any assistance to the Petitioner. Considering the expressed embargo on the right of the Petitioner, to claim maintenance particularly, divorce was ordered on 27.4.2000 based on the allegation of adultery, the Court below has rightly held that the Petitioner-wife is not entitled for maintenance.

12. In the aforesaid background, no case for interference is made out. Both these Petitions lack merit.

13. Dismissed.

[ NITIN W.SAMBRE, J ]

The post Sanjivani Ramchandra Kondalkar vs Ramchandra Bhimrao Kondalkar… appeared first on B&B Associates LLP.

Baburao @ Sagar Rupaji Dhuri Age: 23 years, Occu: Service, R/o. 414, Varsha Building, Ganesh Nagar, Diva (W), Thane. Presently at Amravati Central Prison …Appellant

Vs.

1. The State of Maharashtra (At the instance of Pawai Police Station C.R. No.163/15
2. Miss ‘X’ through her guardian Mrs Pradnya Pradip Jadhav, R/o Sulochanabai Chawl, K.B.M. Compound, Saki Vihar Road, Powai, Mumbai – 400 072. ….Respondents
…..
Mr Aniket Vagal, for the Appellant.
Mr. S.V. Gavand, for Respondent No.1-State.
…..
CORAM: PRITHVIRAJ K. CHAVAN, J.
RESERVED ON: 16TH DECEMBER, 2019.
PRONOUNCED ON 20TH DECEMBER, 2019.
P.C:
By this appeal, the appellant challenges the judgment and order dated 30th June, 2018 passed by the learned Special Judge under the Protection of Children from the Sexual Offences Act, 2012 (for short ‘POCSO’), wherein he has been convicted under section 6 of the POCSO Act and is sentenced to suffer rigorous imprisonment for ten years with a fine of Rs.1000/-, in default, to suffer simple imprisonment for 30 days.

2. The appellant has also been convicted of an offence punishable under section 342 of the Indian Penal Code (for short ‘I.P.C’) and sentenced to suffer rigorous imprisonment for one year.

3. The appellant came to be acquitted of the offences punishable under section 10 of the POCSO Act and under sections 376, 366 (A) of the I.P.C. The appellant has been directed to pay compensation of Rs.25,000/- to the victim as per section 33(8) of the POCSO Act.

4. As per Rule-33 (7) of the POCSO Act, identity of the victim as well as all the family members, relatives, neighbourhood or any other information by which identity of the victim is revealed is required to be concealed. I, therefore, refer the important witnesses as;
[1 P.W.1, Informant and mother of the victim as – “P”
[2 P.W.2-Victim as – “G”
[3 P.W.3- Victim’s neighbour and an eye witness as – ‘M’
[4 P.W.4- Panch witness and husband of P.W. 3-M. – M.M
[5 P.W.6, neighbour of the victim and an eye witness as – “G.R.”

5. The prosecution case, as emerged from the record is as follows: It was 18th April, 2015 when five and half years old victim residing at Sulochana Bai Chawl, K.B.M Compound, Powai, Mumbai went to play with a small boy namely Babu in the neighbourhood. P.W.3-M is a relative of informant P.W.1-P. The victim is the daughter of the informant “P”. P.W.6- G.R. a 16 year old boy asked P.W.3- M to see what the appellant was doing. When P.W.3-M went at the backside of the house of one Sawant and peeped in the house through a space in the door, to her shock, she noticed that the victim was made to lie on the ground in a prone position while the appellant was lying on her person. P.W.3- M suspected some foulplay and, therefore, she knocked the front door and raised shouts by calling the victim’s name. The victim came out after five minutes. P.W.3-M took her to her home and asked as to what the appellant was doing. The victim told P.W.3-M that when she went in search of Babu for playing, the appellant took her in the house, bolted the door from inside and then pulled her slacks down and made her lie in prone position on the ground. He put his penis in her anus and was moving it. She further said that the appellant called her on the pretext that he will show her songs on his mobile. The appellant was residing in the house of his maternal aunt namely Mrs. Sawant who is residing in front of the house of P.W.3-M. P.W.3-M immediately asked brother of the victim to call his mother. When victim’s mother “P” (informant) came to the house, P.W.3-M narrated the incident to her. The victim had again narrated entire facts to her mother. Someone called the Police who came over there and took away the appellant.

6. F.I.R bearing No.163 of 2015 (Exhibit 12) came to be registered at Police Station, Powai against the appellant under sections 377 and 342 of the I.P.C and under sections 4, 8 and 12 of the POCSO Act.

7. P.W.10-Samir Mujawar was attached to Powai Police Station as P.S.I at the relevant time. The informant “P” approached the Police Station along with the victim. The lady Police Inspector recorded the statement of the informant “P”. P.W.10- Samir Mujawar rushed to the spot and drew a spot Panchanama. He recorded the statement of P.W.3- M who had shown the spot. The spot Panchanama is at Exhibit 16. The statement of the victim “G” also came to be recorded. Clothes of the appellant were seized under seizure panchanama. Clothes of the victim were also seized under the seizure panchanama.

8. Upon a disclosure statement made by the appellant, a mobile handset was recovered. The appellant was sent for medical examinations and his clothes were sent for chemical analysis. P.W.10-Samir Mujawar arrested the appellant. P.W.8- Dr. Meena Uday Savjani examined as a witness. Before that, one Dr. Vaibhav Khairnare had examined the victim “G” and as per the protocol, it being a case of sexual violence, it was reported to P.W.8-Dr. Meena. After recording the history, this witness examined the victim.

9. Statement of the victim “G” and P.W.3-M under section 164 of the Code of Criminal Procedure (for short ‘Cr. P.C.) was recorded by the 65th Metropolitan Magistrate, Andheri, Mumbai on 8th September, 2015. After investigation, the Investigating Officer laid a charge-sheet in the Court of Special Judge, Mumbai under sections 376, 342, 366A, 377 of the Indian Penal Code r/w sections 6 and 10 of the POCSO Act.

10. The appellant was produced before the learned Special Judge. A charge was framed in terms of Exhibit 3 against the appellant under sections 376, 342, 366A, 377 of the Indian Penal Code r/w sections 6 and 10 of the POCSO Act. It was read over and explained to the appellant to which he pleaded not guilty and claimed a trial. His defence was denial of the offences alleged. Two defence witnesses had been examined by the appellant in order to show that he had been falsely implicated due to some quarrel.

11. The prosecution examined in all 12 witnesses including the victim “G”. The prosecution has also placed reliance upon some documentary evidence. The learned Special Judge after considering the evidence on record and after hearing the prosecution and defence, found the evidence of the prosecution witnesses reliable and acceptable. The Special Judge, therefore, convicted and sentenced the appellant as above. The learned Counsel has been fair enough to submit that looking to the age of the appellant who is prosecuting his studies, he may be sentenced for the period already undergone by him.

12. Mr. Vagal, learned Counsel appearing for the appellant contended that there is no medical evidence of the victim indicating as to whether she was sexually assaulted or molested by the appellant. Her mother’s evidence is hearsay and, therefore, it is contended that it would be inadmissible. The learned Counsel for the appellant drew my attention to the report of Forensic Science Laboratory Exhibit 6 colly. He emphasized upon the result of analysis, more particularly, in respect of examination of the blood samples of the victim and that of the appellant. It is vehemently argued by the learned Counsel for the appellant that the said report reveals no male DNA was detected in vulval swab or anal swab of the victim.

13. It is submitted that this is a case which would, at the most, fall under section 7 of the POCSO Act which is punishable under section 8 of the said Act.

14. Per contra, the learned A.P.P, Mr. Gavand strongly opposed the arguments of the learned Counsel for the appellant by contending that the Special Judge had rightly appreciated the evidence of the prosecution witnesses and that there is no need to referring to the medical evidence as the appellant was just stopped when he was about to insert the penis in the anus of the victim. For all purposes, he was about to commit an offence as provided under section 3 of the POCSO Act.

15. The learned Additional Public Prosecutor drew my attention to the testimony of P.W.6-G.R who was the first person to notice the appellant indulging in the said act. My attention has also been drawn to the cross examination of P.W.3-M wherein nothing could be elicited which would render her testimony unworthy of credit. F.I.R is lodged promptly. There was no enmity between the victim and victim’s family and that of the appellant. The learned Additional Public Prosecutor has contended that no mother or parents would risk reputation of the family by involving their child risking its future. He further submits that the appellant betrayed trust of the victim in him who used to refer him as ‘Dada’ (elder brother). She was in fiduciary capacity with that of the appellant. The learned Additional Public Prosecutor has referred to section 18 of the POCSO Act which is a punishment for attempting to commit an offence. Thus, it is submitted that this is not a case in which leniency is required to be shown to the appellant.

16. P.W.2-G is the victim whose deposition came to be recorded below Exhibit 13. Her evidence came to be recorded in question and answer form after ascertaining as to whether she understood sanctity of oath. Learned Special Public Prosecutor put relevant questions to P.W.2-G. At the time of her evidence, she was aged about eight years. She testified that on the date of the incident, she had been called by Babu Dada, her friend. The appellant to whom she referred as “Sagar Dada” called her at his maternal aunt’s house. She has stated that his maternal aunt is called as “Sawant Kaku”. She further testified that the appellant bolted both the doors of the room. He then took off her clothes i.e full Shirt and Legging. He took off his clothes. Her evidence further reveals that the appellant inserted his “Nunni” (penis) in her “bocha” (anus). It was specifically asked as to the meaning of “Nunni” to which she answered that it is a place of urination by pointing her finger towards her place of urination. While answering the question as to what is meaning of “Bocha”, P.W.2-G pointed her backside by stating that it is a place of toilet. She further testified that Mothi Mummy knocked the door referring to P.W.3- M. Thereafter, the appellant put on her clothes and opened the door. There is no dispute about identity of the appellant. P.W.2-G had identified Aboli colour T Shirt and Blue Colour Legging which were on her person at the time of the incident.

17. Despite asking several questions to P.W.2-G during cross by the defence, it has not succeeded in rebutting her version. Several insignificant and irrelevant questions were asked which are not required to be considered, however, P.W.2-G testified that on the date of the incident, her mother dropped her at the house of P.W.3-M and left for market. In fact, the victim had gone to call one Babu Dada, another child, with whom she used to play, however, she came to know that Babu Dada was not at home.

18. It is suggested to P.W.2-G in cross that at the instance of P.W.3-M, she had stated that the appellant took her inside the house, bolted the door, took of his clothes and of the victim and then inserted his penis in her anus which she denied. Interestingly, a question was put whether T.V was on when the appellant closed the door to which she answered in the negative. It was also asked whether she shouted when the door was closed, upon which P.W.2- G answered that she shouted but slowly. This is perhaps because she frightened and scared due to such strange and abnormal act on the part of the appellant.

19. It was asked to P.W.2-G that how much time she was in the room, to which she answered five times she was in the room, perhaps she wanted to convey that for five minutes she was there. To the question put to her to whom she met when she came out of the room, the victim answered she met P.W.3-M. Thereafter, she went to the Police Station directly along with her parents and the witnesses. The defence gave a suggestion that the appellant had not removed her clothes to which P.W.2-G answered in clear terms that the appellant had taken out her clothes. She further reiterated the fact that the appellant had inserted his “nunni” in her “bocha”. She denied the suggestion that she deposed at the instance of her mother P.W.1-P and P.W.3-M.

20. The testimony of P.W.2-G is corroborated in material particulars, firstly by P.W.6-G.R who was the first witness to notice the incident. He was studying in the 9th standard at the relevant time and is resident of the same Sulochanabai Chawl where victim P.W.2-G was staying with her parents and also P.W.3-M and P.W.4- MM etc. His evidence reveals that on the date of the incident, he washed off urine of his brother Harshad who was suffering from some urine problem and went backside of the house to put the piece of cloth for drying. When he peeped from the space in the house of Sawantkaku, he noticed the appellant taking out his pant and also the pant of P.W.2-G. He knew P.W.2 as she was residing in the neighbourhood. He further testified that the door was closed and he could peep through the holes in the door. He did not feel good what he saw inside the room and, therefore, anticipating the foulplay of the appellant, rushed to P.W.3-M and informed her what he saw. Immediately, thereafter P.W.3-M rushed to the said room and she too peeped from the front door only to notice the act being committed by the appellant. P.W.6-G.R further testified that P.W.3-M went towards the front door and gave a call to the victim P.W.2-G by shouting her name. P.W.2-G came out running. She was taken to the home of P.W.3-M and was inquired about the incident. P.W.2 informed P.W.3 as to what had happened.

21. An unsuccessful attempt has been made to rebut the testimony of the P.W.6-G.R by the defence but failed in creating any dent. P.W.6-G.R. is a natural and a chance witness who had no axe to grind against the appellant and there was no reason for him to give false evidence. As usual, several irrelevant and insignificant questions were put to this witness during his crossexamination. It reveals from his cross that he used to play with P.W.2-G. P.W.1 -P and his mother were acquainted with each other. Relations were cordial but they were not on visiting terms frequently. He denied the suggestion that there used to be quarrels between him and the appellant when they used to play. He has denied the suggestion that P.W.3-M asked him to give a statement to the Police.

22. The testimony of this witness is corroborated in material particulars by P.W.3-M to whom P.W.2-G used to call as Mothi Mummy. As per the version of P.W.3-M on 18th April, 2015, P.W.6-G.R came to her and asked her to see what the appellant was doing. When she went at the backside of Sawant’s house and peeped inside through the space in the door, she observed that P.W.2-G was lying in a prone position and the appellant was lying on her person in a prone position. The witness realized that something obnoxious or in her words “not good” was going on and, therefore, she came towards the front door and knocked the same by shouting in the name of the victim. After five minutes, P.W.2-G came out. This witness took P.W.2-.G to her house and asked about the incident. P.W.2-G had stated that when she went to see Babu for playing, the appellant took her in the house and bolted the door from inside. He pulled her slack down and made to sleep her in prone position. He thereafter put his penis in her anus and was moving (shee chya jaget nunni takun halvat hota). Evidence of P.W.3-M further reveals that as per version of P.W.2-G, the appellant called her on the pretext that he will show her songs on his mobile. Admittedly, the appellant was residing in the house of his maternal aunt namely Mrs. Sawant who was residing in the neighbourhood of P.W.3-M. This witness, therefore, asked P.W.2- G’s brother to call his mother. However, she herself gave a call to P.W.1-P. People gathered over there and someone had called the Police. The Police arrived at the scene and took away the appellant.

23. During her elaborate cross-examination by the defence, nothing could be elicited which would render the testimony of P.W.3-M unbelievable. Most of the questions asked to the witness in the cross are either insignificant or irrelevant. Strangely enough, in her cross-examination, it has been reiterated or rather the prosecution case has been fortified when this witness stated that she recollected the exact words uttered by P.W.6-G.R when he asked her to see what the appellant was doing with P.W.2- G. Those words were; sister see what Sagar is doing with the victim. It appears that it was a frantic call given by P.W.6-G.R to P.W.3-M as P.W.6- G.R must have anticipated some untoward incident in respect of P.W.2-G. The cross further substantiates the fact that this witness immediately rushed to the back door of the Sawant’s house and saw through the space in the door. She has reiterated that she had not shouted loudly but she did shout and then knocked the front door of Sawant’s house which was opened by P.W.2-G. It has also been surfaced in her cross-examination that the appellant did not run away after the incident which reaffirms the fact that both the appellant and the victim P.W.2-G were very much present in the said room at the relevant time coupled with the fact that both P.W.6-G.R and P.W.3-M noticed the abominable act being committed by the appellant with P.W.2- G. P.W.3-M denied that there was a quarrel between her and Mrs. Sawant and that she had threatened Mrs. Sawant that she would drive her out of the locality and, therefore, the appellant was made a scapegoat.

24. P.W.1-P is the mother of P.W.2-G. She testified that on 18th April, 2015, P.W.2-G was at home when she went to the market around 4.30 p.m. When she received a telephone call of P.W.3-M at about 5.00 p.m, she immediately returned home. Several people had gathered at her house. P.W.2-G was scared and crying. P.W.3-M informed P.W.1-P about the incident and what she witnessed from the space of the door. P.W.2-G had also told her mother that the appellant had removed her slacks, made her to lie on the floor and thereafter, he was putting his penis in her vagina. This cannot be said to be a material contradiction in the sense that there is no medical evidence of sustaining any injuries either to the anus or vagina of P.W.2-G. I shall discuss the evidence of P.W.8- Dr. Meena in that respect in the subsequent paras. The appellant, in fact, attempted to commit penetrative sexual assault upon P.W.2- G.

25. Since, P.W.1-P did not witness the incident, yet her evidence is quite relevant in view of section 6 of the Indian Evidence Act, 1872. She had promptly lodged a First Information Report with the Police which, per say, may not be the substantive evidence, yet it had set a criminal law into motion and without wastage of time, the Investigating Officer could immediately nab the appellant and collect material evidence qua the incident in question including referring the appellant and P.W.2-G for medical examination. It is pertinent to note that the statement of P.W.2-G and P.W.4- M.M also came to be recorded under section 164 of the Cr. P.C by the Metropolitan Magistrate which is in consonance with their testimonies in the box. As such, if the testimonies of P.W.2-G, P.W.3-M and P.W.6-G.R are juxtaposed, they are quite consistent in respect of time, venue and manner of occurrence. There are absolutely no omissions or contradictions on record. It is also not in dispute that P.W.2-G was born on 26th October, 2009 and, therefore, was a child which fact has been buttressed by her birth certificate at Exhibit 33.

26. P.W.8-Dr. Meena was In-charge of Gynecology Department and sexually assaulted cases. Though she did not examine P.W.2-G who, in fact, was examined by Dr. Vaibhav Khairnare, P.W.8-Dr. Meena testified that papers of the examination report were placed before her by Dr. Vaibhav Khairnare as, due to protocol, all cases of sexual violence were reported to her.

27. As per her testimony, history given by P.W.1-P was about the incident of molestation of P.W.2-G by the appellant, who after removing the clothes of P.W.2-G and himself made her lie in a prone position. There was no history of peno-vaginal, peno-anal, peno oral intercourse given by the patient. In criminal terminology and as per the history given by the patient, there would be no question of penetration. Nevertheless, as per the legal definition, one has to see as to whether there was any such act which was construed as an offence either in view of section 4 or section 5 or for that matter, section 7 of the POCSO Act.

28. It would also be essential to consider the evidence in view of the presumption provided under section 29 of the POCSO Act. It is testified by P.W.8-Dr. Meena Saujani that there is no history of any external bleeding P.V. (per vaginal), P.R. (Per rectum). The medical expert had duly obtained consent of the victim’s mother P.W.-P before her examination. Though there were no physical signs of injuries, yet the history of touching and fondling was sufficient to constitute the offence. It is pertinent to note that the clothes of P.W.2-G were changed, she had passed urine and rinsed her mouth. There were no signs of abnormality after examination of vagina. Blood group and swab were collected from vulva and the anus. The certificate is proved at Exhibit 23. Admittedly, the reports of the medical analysis at Exhibit 6 colly and C.A report in respect of swab reveal that no men D.N.A was detected on vulva and anal swab which necessarily means that there was no ejaculation of seminal fluid. The guidelines and protocols in respect of medico legal care for survivors/victims of sexual violence issued by MoHFW are annexed at Exhibit 23. An unsuccessful attempt has been made by the defence to shatter the testimony of P.W.8-Dr. Meena.

29. Since the results of examination report issued by the Director of Forensic Science Laboratory at Exhibit 6 Colly are negative, this evidence would be insignificant so also evidence of P.W.8-Dr. Meena in assisting the prosecution for establishing a guilt against the appellant. Even otherwise, the evidence of an expert coupled with report of chemical analysis is a technical evidence which would always be used as a corroborative piece of evidence and not substantive evidence. C.A. Report, medical history and the evidence of the medical expert is of no consequences to the prosecution.

30. P.W.4-MM was summoned to act as a Panch witness obviously for the reason that he is a resident of the same chawl and was part of the crowd which had gathered at the scene. He came to know that P.W.2-G was sexually assaulted at that place. However, nothing had been seized by the Police in his presence who had prepared a spot Panchanama which is at Exhibit 16. He being the husband of P.W.3-M was suggested that because of quarrels between his wife and Vaishali Sawant, at the instance of his wife, he had put his signature over the Panchanama which he had denied.

31. P.W.5-Anita Shinde was summoned as a Panch witness in whose presence, Investigating Officer had seized clothes of P.W.2-G comprising peach coloured full T Shirt and a slack by Panchanama Exhibit 18. The evidence of this witness is formal in nature. There is no effective cross-examination of these two witnesses.

32. Baburao Pulare had testified as P.W.7, in whose presence, the Investigating Officer had seized clothes on the person of the appellant at the time of commission of the offence. It comprises full shirt with inscription “TORES”, white dirty baniyan, Grey coloured underwear of Scott company and black jeans. All these clothes were wrapped in a paper by affixing labels. Panchnama to that effect is drawn which is at Exhibit 21. The witness has identified those clothes in the box. His evidence remained intact in the cross-examination.

33. Interestingly, despite examining two defence witnesses, the appellant has not succeeded in creating any dent in the testimonies of P.W.2-G, P.W.3-M and P.W.6-G.R so also in respect of his so called false implication in the instant case due to a quarrel which had occurred long back.

34. The first defence witness is Mr. Dattaguru Parab who is the brother-in-law of the appellant (sister’s husband). According to this witness, after receiving a phone call from his aunt namely Vaishali Sawant informing about the arrest of the appellant, he went to Powai Police Station and requested the Police to inform as to what had happened. He was asked by a Police man to bring clothes of the appellant and, therefore, on 25th April, 2015, he had handed over clothes of the appellant to the Police. He also took out mobile hand set from the cupboard and handed it over to the Police. He had not uttered a single word about incident in question or anything to say about false implication of the appellant due to some rivalry.

35. Similarly, D.W.2- Rajshree Sawant who is the aunt of the appellant (mother’s sister) testified that ever since P.W.1-P and and she came to reside in Sulochanabai Chawl in 2008. There used to be quarrels between them on account of work. This witness along with P.W.1-P and one more woman used to go for work as a house maid. It is testified that P.W.3-M and P.W.1-P used to sit together and threaten this witness that they would drive her from the locality. This is nothing but a well thought story concocted by this witness. Had there been some substance in the said evidence, she could have stated the same immediately when the appellant was arrested by the Police.

36. In her cross-examination by the learned Special Public Prosecutor, she admits that she did not lodge a report against P.W.3-M or P.W.1-P. Thus, defence evidence, even on the ground of probability, does not even remotely reveal false implication of the appellant in this case.

37. P.W.9-Kadir Shaikh is a witness in whose presence, according to the prosecution, the appellant made a voluntary statement to the effect that he would show his mobile. Accordingly, a memorandum Panchanama Exhibit 27 was drawn and thereafter he led the Police team along with this witness and panch witness in a vehicle to Tunga Gaon, Powai. The appellant thereafter took out a mobile from the mezzanine floor. It was a black coloured Nokia company’s hand set which was sealed in an envelope and recovery panchanama Exhibit 27-A was drawn. The prosecution case did not go further except seizure of the said mobile hand set sans any evidence to indicate that it was a mobile which was shown to P.W.2-G for playing songs and on that pretext, she was lured and molested by the appellant.

38. As can be seen from the aforesaid discussion of facts and evidence on record, the victim P.W.2-G called the appellant as Dada, meaning thereby, she had full faith and respect towards the appellant to that of an elder brother. The appellant betrayed her trust by molesting her. It is also apparent from the aforesaid discussion that the appellant was about to commit aggravated penetrative sexual assault upon P.W.2 but due to intervention of P.W.3-M, he could not succeed in his nefarious design and, therefore, the act was in fact about to be accomplished by him since he had already started movements of his penis over the posterior part of P.W.2-G. Section 18 of the POSCO Act provides punishment for attempt to commit an offence.
“18. Punishment for attempt to commit an offence._ whoever attempt to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment of life or as the case may be, one-half of the longest term of imprisonment provided for that offence or which fine or with both”.

39. The appellant, in fact, did an attempt towards an act of committing aggravated penetrative sexual assault and, therefore, the learned trial Court has rightly appreciated all the circumstances and facts on record by passing appropriate sentence of imprisonment.

40. In the case of Madan Gopal Vs. Naval Dubey, AIR 1992 SCW, 1480, it is held thus,
“…though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are a menace to the civilized society should be mercilessly and inexorably punished in the severest terms”.
The dicta are loud and clear as to how such offenses are required to be dealt with who are a menace to the civilized society and, therefore, they should be mercilessly and inexorably punished.

41. In the case of Shyam Narain Vs. State of NCT of Delhi, 2013 Cri L J 3009, the Hon’ble Supreme Court has made following observations which are quite relevant in the given set of facts and circumstances. It would be apposite to quote paragraph 11 of the judgment which reads thus;
“11. Primarily it is to be borne in mind that sentencing for any offence has a social goal. The sentence is to be imposed, regard being had to the nature of the offense and the manner in which the offense has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim”.

42. This is a case in which there is no question of reformation of the appellant as he was quite a grown-up male who knew the consequences of his act.

43. The learned trial Judge has elaborately and succinctly discussed each and every aspect of the case by correctly appreciating the evidence on record and reached a finding which does not warrant interference in the appeal. As such, the appeal is devoid of merits and, therefore, needs to be dismissed.

: O R D E R :

[1 The Appeal stands dismissed.
[2 The Muddemal Property shall not be disposed of until the appeal if preferred by the appellant is decided by the Supreme Court.
[PRITHVIRAJ K. CHAVAN, J.

The post Baburao @ Sagar Rupaji Dhuri vs The State Of Maharashtra And Anr appeared first on B&B Associates LLP.

The New India Assurance Co. Ltd. Policy Issuing Office at 2883, Vasant Dutey Road, Mahad, District Raigad, Through Mumbai Regional Office – V, Vindhya Commercial Complex, 2nd Floor, Section 11, CBD Belapur, Navi Mumbai – 400 614.

… Appellant
(Org. Insurer)

Versus

1. Smt. Sushama mahendra Sonawane Aged 32 years, Occupation Housewife, Widow of the deceased
2. Master Viraj Mahendra Sonawane Aged 10 years, Occupation Student, Son of the deceased Respondent No.2 being minor through Respondent Nos. 1 and 2 mother natural guardian and next friend Both residing at B/26/41, Vijay Nagari Complex, Ghod Bunder Road, Waghbil Naka, Thane – 400 607.
3. Mr. Laxman Bageshwar Yadav, 602, Maharani, Sector 17, Vashi, Navi Mumbai, Dist. Thane.

… Respondents
(Resp. 1-2 Org. Claimants,
Resp. 3 Org. Opp. Party)

…..

Mr. Devendranath S. Joshi for the Appellant and for the Applicant in CAF/991/2015.
Mr. U.N. Mehta along with Ms. Swati Uday Mehta for the Respondent Nos. 1 and 2.

…..

CORAM: R.D. DHANUKA, J.
RESERVED ON: 27th NOVEMBER, 2019
PRONOUNCED ON : 20th DECEMBER, 2019

JUDGMENT :

1. By this First Appeal filed under Section 173 of the Motor Vehicles Act, 1988, the appellant (original opponent no.2) has impugned the judgment and award dated 4th January, 2014 passed by the Motor Accident Claims Tribunal (MACT), Thane in Motor Accident Claim Petition (MACP) No. 608 of 2008 allowing the application filed by the respondent nos. 1 and 2 (original applicants) partly and directing the appellant and original opponent no. 1 to pay jointly and severally an amount of Rs.29,51,000/- to the respondent nos. 1 and 2 with interest @ 7% p.a. from the date of application till its realization. By consent of appellant and the respondent nos. 1 and 2, contesting parties, the First Appeal is heard finally. Some of the relevant facts for the purpose of deciding this First Appeal are as under:-

2. The respondent nos. 1 and 2 were the original applicants (claimants) before the Tribunal whereas the appellant was the original opponent no.2. The respondent nos. 1 was wife of the deceased Mahendra N. Sonawane, whereas the respondent no.2 was son of the said deceased. On 21st February, 2007 at 6:30 a.m. the said deceased was proceeding to Nashik by his Matiz Car bearing registration No.MH-12-AX-6678 along with his mother late Savita N. Sonawane. The said deceased was proceeding by Mumbai-Agra Road at a moderate speed and when his vehicle was within its lane of Mumbai-Agra highway, proceeding from Mumbai to Nashik and when the said vehicle reached near Gangaram Pada, opposite Soni Nursery and house of Mr. Vijay Salunke, at Villa Vadva, on the said highway, offending truck bearing registration no. MH-04-AL-7773 which was being driven very rashly, negligently, without observing rules of traffic and without proper lookout and which was at excessive speed could not controlled by its driver.

3. The said truck suddenly left its track and came to the wrong side and rammed into the car of the deceased. As a result thereof, the front side of the said vehicle driven by the said deceased came below the body of the truck and got crashed. As a result of the said accident, the said deceased Mahendra Sonawane and his mother Savita Sonawane died on the spot. Their bodies were removed out of the car after lifting the truck with the help of the crane. The said deceased as well as his mother were later declared as dead by the Indira Gandhi Memorial Hospital, Bhiwandi. The postmortem of the dead bodies was carried out. An offence was registered vide C.R.No.I-29/2007 dated 21st February, 2007 by Bhiwandi Police Station.

4. The respondent nos. 1 and 2 made various claims by filing MACP No. 608 of 2008 against the driver of the offending vehicle and the appellant in the sum of Rs.60,00,000/- along with interest @ 12% p.a. from the date of application till payment. The original opponent no.1 did not appear before the Tribunal and also did not file any written statement. The appellant herein resisted the claim by filing written statement and contended that the said claim petition was hit by non-joinder of parties and there was no cause of action against the appellant. It was the case of the appellant that as per the police papers, there were two vehicles involved in the motor vehicular accident i.e. the Matiz Car driven by the said deceased and the motor truck bearing registration no. MH-04-AL-7773. It was also urged that respondent nos. 1 and 2 herein had not impleaded the owner and insurer of the Matiz Car as necessary parties and thus the said claim was bad for non-joinder of necessary parties.

5. Mr. D.S. Joshi, learned counsel for the appellant invited my attention to some of the findings rendered by the Tribunal in the impugned judgment and award and would submit that the Tribunal has not considered the contributory negligent on the part of the deceased in the impugned judgment and award. He however fairly submitted that no evidence was led by the appellant before the Tribunal.

6. The next submission of the learned counsel for the appellant is that the driver of the offending vehicle was not examined by the respondent nos. 1 and 2 thus the Tribunal could not have awarded any compensation against the appellant on the ground of negligence on the part of the said driver of the offending vehicle.

7. In so far as the quantification of the claim awarded by the Tribunal is concerned, it is submitted by the learned counsel that the income tax return of the said deceased was filed by the respondent nos. 1 and 2 after the demise of the said deceased and thus such income tax return could not have been considered by the Tribunal. He submits that the respondent no.1 who was widow of the said deceased was remarried within 1 year of the date of demise of the said deceased and thus could not have filed any application for compensation arising out of the death of the said deceased being not a dependent. He submits that the accident had taken place on 21st February, 2007. The respondent no.1 was remarried on 13th March, 2008. The claim petition was filed by the respondent nos.1 and 2 only on 29th August, 2008.

8. Mr. U.N. Mehta, learned counsel for the respondent nos. 1 and 2 on the other hand submits that his client had already produced the copy of the Spot Panchanama, FIR, Truck Sketch, Inquest Panchanama and Postmortem Report. He submits that the documents produced by the respondent no.1 who was examined as a witness clearly showed that the driver of the offending vehicle was negligent. The truck bounced upon the bonnet and cabin of the car. He submits that the Tribunal thus rightly rendered a finding that the driver of the offending vehicle was solely responsible. The appellant did not examine the said driver of the offending vehicle.

9. In so far as the issue raised by the learned counsel for the appellant that the Tribunal had not considered the contributory negligence on the part of the deceased is concerned, learned counsel submits that the Tribunal has rightly rendered a finding that driver of the offending vehicle was solely responsible by considering the evidence produced on record in detail. It was for the appellant to examine the driver of the offending vehicle to prove that the said deceased was negligent and not the said driver of the offending vehicle.

10. In so far as the quantification of the claim awarded by the Tribunal is concerned, it is submitted by the learned counsel for the respondent nos. 1 and 2 that the Tribunal had rightly considered Form No. 16 filed by the respondent no.1 showing the income of the said deceased in the respective income tax returns.

11. In so far as the submission of the learned counsel for the appellant that in view of the remarriage of the respondent no.1 within 1 year from the date of demised of the said deceased and thus she could not be considered as a dependent of the said deceased and could not make any claim for compensation is concerned, it is submitted that the position of the widow for considering her claim as a dependent has to be considered on the date of the accident and not thereafter.

12. In support of this submission, learned counsel placed reliance on the judgment of Punjab and Haryana High Court in case of National Insurance Co. Ltd. v/s. Nidhi Goel and others, 2018 ACJ 2732 and in particular paragraphs 12 and 13. He also placed reliance on the judgment of this Court in case of New India Assurance Co. Ltd. v/s. Mona and others, 2011 ACJ 662 and in particular paragraph 7. On the issue of contributory negligent raised by the learned counsel for the appellant, learned counsel for the respondent nos. 1 and 2 placed reliance on the judgment of Allahabad High Court in case of Prabandhak, U.P. Rajya Sadak Parivahan Nigam v/s. Rabia Begum and others, 2015 ACJ 1492 and in particular paragraph 28 and would submit that the burden was on the appellant to prove the contributory negligence on the part of the said deceased, which burden the appellant failed to discharge.

13. Learned counsel for the respondent nos. 1 and 2 placed reliance on the judgment of Jammu and Kashimir High Court in case of Union of India and others v/s. Nusrat Khan and another, 2009 ACJ 2875 and in particular paragraph 17 and would submit that driver of the offending vehicle is not a necessary party but a proper party. In support of this submission, he also placed reliance on the judgment of Rajasthan High Court in case of Dayabhai v/s. Shri Gopal, 2010 (1) T.A.C. 945 (Raj.), the judgment of this Court in case of New India Assurance Co. Ltd. v/s. Babruwan and others, 2009 ACJ 2871, judgment of Gujarat High Court in case of New India Assurance Co. Ltd. v/s. Cargo Motors Ltd. And others, 2009 ACJ 2771.

14. Learned counsel for the respondent nos. 1 and 2 placed reliance on the judgment of Supreme Court in case of Navjyot Singh and others v/s. Delhi Transport Corporation and others, 2018 ACJ 540, in support of the submission that since the said deceased was self-employed, reliance on the income tax return to prove income of the said deceased including Form No. 16 was proper.

15. Learned counsel also relied upon paragraph 5 of the said judgment in support of the submission that the Tribunal ought to have allowed interest @ 9% p.a. instead of 7% p.a. Learned counsel also placed reliance on the unreported judgment of this Court in case of New India Assurance Company Limited v/s. Smt. Rajni Harshwardhan Sharma in First Appeal No. 445 of 2015 and would submit that Division Bench of this Court had awarded interest @ 9% p.a. It is lastly submitted by the learned counsel that the respondent no.2 has now become major and thus order of investment made by the Tribunal in respect of the compensation due and payable to the respondent no.2 shall be modified and an order be passed to release the payment of compensation to the extent of 50% in favour of the respondent no.2 directly.

REASONS AND CONCLUSIONS :-

16. I have heard the learned counsel for the appellant (original opponent no.2) and the learned counsel for the respondent nos.1 and 2 (original applicants) and have perused the pleadings, documents and evidence produced on record by the parties.

17. The Tribunal framed three issues for determination. It is not in dispute that the respondent nos.1 and 2 (original applicants) examined the witness who produced various documents including inquest panchnama, Post Mortem report and cause of death certificate in addition to the FIR and Spot panchanama. The said witness was cross-examined by the appellant’s counsel. The respondent nos.1 and 2 had also examined Mr.Raveendran P.M., Chartered Accountant of the said deceased who was also cross-examined by the appellant’s counsel.

18. The said witness examined by the respondent nos.1 and 2 produced income-tax returns for the year 2004 to 2007 along with the statements of income, PAN card and various other documents. He had also annexed Form 16 along with the respective income tax returns. The account statement of the said deceased issued by the Bank of Maharashtra was also produced. Certificate of Import and Export Code i.e. I.E.C. issued by Ministry of Commerce was also annexed with income tax returns.

19. The respondent no.1 deposed that the said deceased prior to his death was working as Director of M/s.Ceal Shipping & Logistics Pvt. Ltd. and in the year 2004-05, he was drawing a salary of Rs.1,70,000/- p.a. In the year 2005-06, he was drawing salary of Rs.1,80,700/- p.a. In the year 2006- 07, he was drawing salary of Rs.2,10,000/- p.a. His salary was increasing every year. The said witness also deposed that the said deceased was also running a proprietary concern M/s.Venkateshwara Sales Corporation and was exporting flowers to U.K. The said witness also produced the license obtained from Ministry of Commerce, Government of India. The Government of India had allotted him the import-export code.

20. In so far as the submission of the learned counsel for the appellant that the respondent nos.1 and 2 ought to have examined the driver of the offending vehicle and not having examined, the Tribunal could not have rendered a finding of negligence on the part of the said driver is concerned, in my view, there is no substance in this submission of the learned counsel for the appellant. It was for the appellant to examine the said driver of the offending vehicle to prove that the said deceased was responsible for the said accident or there was any contributory negligence on his part for the accident which had taken place. Learned counsel for the appellant did not dispute before this Court that no evidence was led by the appellant before the Tribunal.

21. The Allahabad High Court in case of Prabandhak, U.P. Rajya Sadak Parivahan Nigam v/s. Rabia Begum and others (supra) has held that burden was on the insurer to prove contributory negligence on the part of the deceased. In my view the appellant had failed to discharge such burden to prove by not leading any evidence.

22. A perusal of the findings rendered by the Tribunal clearly indicates that after considering large number of the documents produced by the respondent nos.1 and 2 in evidence which were not disputed by the appellant, when those documents were exhibited, the Tribunal rightly rendered a finding that the driver of the offending vehicle was solely responsible for the rash and negligent driving of the offending vehicle. I do not find any infirmity in the said finding of fact rendered by the Tribunal.

23. In so far as the quantification of claim awarded by the Tribunal is concerned, a perusal of the judgment and award indicates that the Tribunal has considered the oral and documentary evidence led by the respondent nos.1 and 2 and the Chartered Accountant of the said deceased who had produced various proof of income including income tax returns and Form 16 for several years. The said evidence of the Chartered Accountant or of the respondent no.1 was not shattered in the cross-examination by the appellant.

24. In so far as the submission of the learned counsel for the appellant that the respondent no.1 having remarried within one year from the date of death of the said deceased and thus could not have been awarded any claim for compensation as the said respondent no.1 was allegedly not dependent on the said deceased is concerned, in my view, the status of the widow as dependent has to be considered on the date of death of the said deceased and not on the date of filing the claim for compensation.

25. The Punjab and Haryana High Court in the case of National Insurance Co. Ltd. Vs. Nidhi Goel & Ors. (supra) has held that there is no bar under the Motor Vehicles Act, 1988 against a widow from claiming compensation on account of her re-marriage. After the death of her husband, the widow continues to represent his estate irrespective of her remarriage because she inherits part of the estate of her deceased husband. It is held that the said Motor Vehicles Act is a social welfare legislation and should be interpreted so as to fulfill its objective with which it was enacted. It is also held that though the said widow got re-married within about three months of the death of her husband, she was entitled to claim for compensation. The principles of law laid down by the Punjab and Haryana High Court are applicable to the facts of this case. I respectfully agree with the views expressed by the Punjab and Haryana High Court.

26. In my view, merely because widow of the said deceased was remarried within one year from the date of death of the deceased or even within the shorter period, that would not make the widow dis-entitled to make claim for compensation on the ground that the said widow was not dependent on the date of filing claim application. Such widow continues to represent the estate of the said deceased and thus was entitled to make claim for compensation irrespective of change of her marital status after demise of the said deceased. The status of the claimant as dependent has to be considered on the date of death of the said deceased and not on the date of date of making an application for seeking compensation arising out of such death of the husband. The Tribunal thus rightly considered the claim of the respondent no.1 being widow of the said deceased in view of the death of her husband due to the said accident, along with the claim of the respondent no.2 being also one of the legal heirs and representative of the said deceased.

27. This Court in the case of New India Assurance Co. Ltd. v/s. Mona and others (supra) has held that Section 166 of the Motor Vehicles Act is a social legislation and the same must be interpreted to further its objective.Remarriage cannot be an impediment in claiming compensation nor can it be a ground to reduce the compensation to which the widow is otherwise entitled to. In my view, the said judgment of this Court squarely applies to the facts of this case. I am respectfully bound by the said judgment.

28. In so far as the submission of the learned counsel for the appellant that no reliance on the income tax returns alone could be placed by the respondent nos.1 and 2 to show the income of the deceased is concerned, Supreme Court in the case of Navjyot Singh and others v/s. Delhi Transport Corporation and others (supra) has held that the said deceased was self-employed and thus reliance placed on the income tax returns of the said deceased including Form No.16 was proper.

29. In so far as the submission of the learned counsel for the appellant that the claim filed by the respondent nos.1 and 2 was bad for non-joinder of the driver of the offending vehicle is concerned, the Jammu and Kashmir High Court in case of Union of India and others v/s. Nusrat Khan and another (supra) has held that the driver of the offending vehicle is not a necessary party but proper party. Similar views has been also taken by the Rajasthan High Court in case of Dayabhai v/s. Shri Gopal (supra), by this Court in case of New India Assurance Co. Ltd. v/s. Babruwan and others (supra) and by the Gujarat High Court in case of New India Assurance Co. Ltd. vs. Cargo Motors Ltd. and others (supra). I respectfully agree with the views expressed by the Jammu and Kashmir High Court, Rajasthan High Court and the Gujarat High Court. The principles of law laid down by this Court are applicable to the facts of this case. I am respectfully bound by the said judgment.

30. In my view, the driver of the offending vehicle is not a necessary party but is proper party. The said claim thus could not have been rejected even otherwise on that ground by the Tribunal. It was for the appellant to examine the said driver of the offending vehicle as one of the witnesses which the appellant has failed in this case.

31. During the course of arguments, learned counsel for the respondent nos.1 and 2 also pressed in service an unreported judgment of this Court in case of New India Assurance Company Limited v/s. Smt. Rajni Harshwardhan Sharma (surpa) in support of the submission that the rate of interest @7% was on the lower side and ought to have awarded @9% p.a. In my view, in the facts and circumstances of this case, the Tribunal ought to have been awarded interest @9% p.a. Judgment of this Court in case of New India Assurance Company Limited (supra) applies to the facts of this case.

32. For the reasons recorded aforesaid, I do not find any infirmity in the findings rendered and the conclusions drawn by the Tribunal in awarding compensation except to the extent of rate of interest awarded by the Tribunal @7% p.a. Appeal is devoid of merit.

33. I therefore pass the following order :-
(i) The appellant and the respondent no.3 are jointly and severally liable to pay an amount of Rs.29,51,000/- to the respondent nos.1 and 2 with interest @9% p.a. from the date of claim petition till its realisation. The said amount shall be paid equally to the respondent nos.1 and 2.
(ii) Since the respondent no.2 has attained the age of majority, the order passed by the Tribunal to invest 50% share of the respondent no.2 in the Fixed Deposit is modified to the effect that the respondent no.2 would be entitled to be paid with his share.
(iii) The respondent nos.1 and 2 would be entitled to recover the entire amount awarded by the Tribunal by judgment and award dated 4th January 2014 duly modified by this order out of the amounts deposited by the appellant before the Tribunal.
(iv) The operative part of the judgment and award passed by the Tribunal stands modified to the aforesaid extent.
(iv) In view of the aforesaid order, if there is any shortfall in recovering the amount by the respondent nos.1 and 2, the appellant shall deposit the balance amount with the Tribunal within two weeks from the date of computation of shortfall. If the Tribunal finds any surplus amount deposited by the appellant, Tribunal shall refund the said surplus amount to the appellant within four weeks from the date of such computation.
(v) If there is any shortfall in payment of Court fees, the appellant shall pay the deficit within two weeks from the date of computation by the Tribunal. Respondent Nos. 1 and 2 would be at liberty to withdraw amount only upon payment of deficit Court fees, if any.
(vi) First appeal is disposed off on aforesaid terms. No order as to costs. Parties as well as the Tribunal to act on the authenticated copy of this order.
(R.D. DHANUKA, J.)

The post The New India Assurance Co. Ld. vs Mrs. Sushama Mahendra Sonawane appeared first on B&B Associates LLP.

Case :- HABEAS CORPUS No. – 27130 of 2019
Petitioner :- Prem Narayan @ Prem Verma Throu.(Son) Amit Kumar Verma
Respondent :- Union of India Throu.Secy.Ministry of Home Affairs And Ors.
Counsel for Petitioner :- Anuj Pandey
Counsel for Respondent :- G.A.,A.S.G.
***
Hon’ble Shabihul Hasnain,J.
Hon’ble Mrs. Rekha Dikshit, J.
(Delivered by Shabihul Hasnain, J.)

Petitioner has made following prayers in the petition :

” (I) Issue writ, order or direction in the nature of Certiorari whereby producing the record in original and thereafter quash the impugned order dated 03.07.2019 bearing reference No.XX/Ra.Su.Ka-Prem Verma @ Prem Narayan/19/J.A, passed by the District Magistrate, Kheri whereby the petitioner has been directed to be detained with the respondent no.5 under the National Security Act, 1980 (contained as annexure No.1) and the impugned order dated 10.07.2019 bearing reference no.84/02/24/2019-CX-05, passed by the State Government (contained as Annexure No.2).

(II) Issue writ, order or direction in the nature of Habeas Corpus thereby directing the respondent no.5 to produce the petitioner before this Hon’ble Court and thereafter he be set at liberty by this Hon’ble Court.

(III) Issue any other remedy or relief as deemed fit and proper under the circumstances of the case to this Hon’ble Court.

(IV) Allow the petition with cost in favour of the petitioner.”

Heard Sri Anuj Pandey, learned counsel for petitioner, learned Additional Government Advocate for State of U.P. and Sri Varun Pandey for Union of India.
The details of the alleged incident are mentioned that as per the report of Sri Shiddesh Verma, his brother Sri Yogesh Verma is a Member of the Legislative Assembly from Sadar Seat, District Lakhimpur Kheri and has initiated actions against the illegal mining and due to the aforesaid actions the illegal mining mafia Prem Verma (petitioner) was having an inimical terms with the brother of the informant and threats were extended to him to face dire consequences. On 21.3.2019, on the day of Holi festival when the informant Sri Shiddesh Verma was returning after attending a party along with his gunner Mohit and his brother Sri Yogesh Verma and friend Pankaj Verma on different motorcycles, suddenly at about 3.30 p.m. the accused persons namely Prem Verma, Naseem, Pinki Saxena @ Pinku Saxena, who were already present at the culvert came in front of the motorcycles and asked the informant and others to stop the motorcycles and after hurling abuses, all the accused persons fired, due to which Sri Yogesh Verma, brother of the informant sustained injury on his right leg and thereafter all the accused persons ran away after firing, which caused hue and cry and general public started running after closing their respective shops and on the basis of the aforesaid incident, an FIR was registered on 21.3.2019 as Case Crime No.334 of 2019, under Sections 307,504,506 IPC and Section 7 Criminal Law Amendments Act, at P.S.Sadar, District Lakhimpur Kheri. Station House Officer prepared and forwarded its report on 1.7.2019 and the police authority i.e. Circle Officer, Sadar Kheri forwarded the same to the Superintendent of Police Kheri to the next day i.e. 02.07.2019. He forwarded the report to the District Magistrate and on the same day i.e. 03.07.2019 the District Magistrate has passed the order to detain the petitioner under the aforesaid Act.

Learned counsel for petitioner submits that perusal of the detention order shows that the same is based upon the fact that the fire was made upon a Member of the Legislative Assembly Shri Yogesh Verma by the petitioner and other accused-persons, due to which, Shri Yogesh Verma sustained injury and the incident caused hue and cry and disturbed the public order.

Learned counsel for petitioner submits that the impugned detention order is illegal and passed upon the extraneous, invalid and non-existent grounds. The Detaining Authority was misled by the report so forwarded by the Sponsoring Authority which contains non-existent, irrelevant and false facts.
Learned counsel for petitioner further submits that the impugned detention order is also based upon the political influence and subjective satisfaction of the Detaining Authority, which is vitiated.

As is evident from a perusal of the detention order that the grounds for passing the same is the incident regarding which an FIR was registered as Case Crime No.334/2019, under Sections 307, 504, 506 IPC and Section 7 Criminal Law Amendments Act, at Police Station Kotwali Sadar, District Lakhimpur Kheri, wherein three persons including the petitioner have been alleged to have stopped the informant and other persons and have fired resulting the injury sustained by the brother of the informant, who is a Member of the Legislative Assembly.

The petitioner moved a representation dated 16.08.2019 against the detention order, a copy of which has been annexed as Annexure No.8 to the petition. In the said representation, the petitioner gave specific details that the day of the incident mentioned in the Case Crime No.334/2019 was admitted a day on which the festival of Holi was being celebrating. The informant and his brother Shri Yogesh Verma and his numerous supporters were dancing in an inebriating condition and it was the petitioner, who was assaulted by Shri Yogesh Verma and his supporters. The petitioner in his representation specifically stated that the entire incident has been recorded in a C.C.T.V. footage and a perusal of the same unleashed the truth. The petitioner also brought to the notice of the authorities that he filed a writ petition before this Hon’ble Court, registered as Writ Petition No.9098 (M/B) of 2019, wherein this Hon’ble Court directed the State Authorities to investigate the matter in accordance with the Regulation 107 of the U.P. Police Regulation taking into consideration the averments made in the writ petition, specifically in light of the Paras-11, 12, 13 and 14 of the writ petition. This Hon’ble Court on 02.04.2019, passed the following order :-

“Heard Shri Anuj Pandey, learned counsel for the petitioner and the learned A.G.A. The impugned First Information Report No. 0334 of 2019 against the petitioner under Sections 307, 504 and 506 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station Kotwali Sadar, District Kheri. Learned counsel for the petitioner has taken the attention of the Court towards paragraph 11 of the writ petition to contend that the petitioner was neither present nor involved in the dispute, but has wrongly been implicated in the F.I.R., which is evident from the CCTV footage. It is further submitted that the allegations are totally false and the facts are otherwise. In fact, the co-accused was being assaulted by the complainant himself. In view of above facts and circumstances, we hereby direct that petitioner shall not be arrested until incriminating evidence is found against him. It is further directed that the police shall investigate the matter in accordance with Regulation 107 of the U.P. Police Regulations taking into account the averments made in the writ petition, specifically in light of paras 11, 12, 13 and 14 of the writ petition. With these directions, the petition is disposed of.”

It is important to mention here that the aforesaid directions of this Hon’ble Court was deliberately overlooked by the authorities and the C.C.T.V. Footage was not examined and was not a part of the record of the investigation of the Case Crime No.334/2019.

Learned counsel for petitioner submits that instead of investigating the crime specifically in light of paras 11,12,13 and 14 of writ petition as directed by this Hon’ble Court in the above writ petition, the district administration working under the dictate of Sri Yogesh Verma, arrested the petitioner on 16.05.2019 detailing the false and absurd grounds i.e. the petitioner was hidden in the car when the alleged offence was committed.

Now the changed version gives a picture which at the most can be said to be a law and order problem. The day of the incident was admittedly a festival of Holi where all the shops are generally closed during afternoon. The version of the Sponsoring Authority that the people closed their shops cannot be believed.
At this juncture, it is pertinent to elucidate the proposition of law which has been laid down by the Hon’ble Supreme Court over a period of years distinguishing “law and order” from “public order”. In the judgment of the Hon’ble Apex Court in Mustakmiya Jabbarmiya Shaikh vs M.M.Mehta, Commissioner Of Police and Others, reported in (1995) 3 SCC 237 held as follows :

“9……. A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which have nothing to do with the main-tenance of public order. In this connection it may be stated that in order to bring the activities of a person within the expression of ‘acting in any manner prejudicial to the maintenance of public order”, the fall out and the extent and reach of the alleged activities must be for such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which deter-mines whether the disturbance caused by such activity amounts only to a ‘breach of law and order’ or it amounts to ‘public order.’ It the activity falls within the category of disturbance of ‘public order’ then it becomes essen-tial to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality. In the case of Arun Ghose v. State of West Bengal, [1970] 1 SCC 98 this Court had an occasion to deal with the distinction between law and order and public order. Hidayatullah, C.J. (as he then was), speaking for the Court observed that public order would embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or eves a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public transquillity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order. It has been further observed that the implications of public order are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different, Again in the case of Piyush Kantilal Mehta v. Commissioner of Police, [1989] Supple. 1SCC322, this Court took the view that b order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The com-mission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law of the land.”

In Commissioner of Police & Others v. C.Anita (Smt.), reported in (2004) 7 SCC 467, the Hon’ble Supreme Court again examined the issue of “public order” and “law and order” and observed thus :

“7………The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression ‘law and order’ is wider in scope inasmuch as contravention of law always affects order, ‘Public order’ has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ‘law and order’ and ‘public order’ is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting ‘public order’ from that concerning ‘law and order’. The question of ask is;
“Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed ? ”
This question has to be faced in every case on its facts.”
The afore-quoted observations of the Hon’ble Apex Court make it amply clear that the administrative authorities have remained confused as to what constitutes a “law and order problem” and what constitutes a “public order problem” and have time and again erroneously passed preventive detention orders for acts falling within the category of law and order problem. For an act to fall within the category of public order problem it should be of the nature to disrupt the ordinary tempo of public life. Also, it should be beyond the capability of ordinary law to deal with the alleged activities; in other words, if recourse to ordinary criminal law could have efficaciously dealt with the alleged activities the need to take recourse to preventive detention law does not arise. The facts and circumstances of the present case, especially, the changed version of the detaining authorities fall to establish that the alleged act was one threatening public order.
In the case of Pebam Ningol Mikoi Devi vs. State of Manipur & Ors., reported in (2010) 9 SCC 618, the Hon’ble Supreme Court has been pleased to consider a detention under the National Security Act and it has been held by the Hon’ble Supreme Court that if one of the grounds are non-existent, misconceived or irrelevant, a detention order will be invalid. The Hon’ble Supreme Court has also held that if actual allegations were vague and irrelevant, the detention would be rendered irrelevant. The relevant portion of the aforesaid judgment are reproduced as under:-
“28. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the court and it is the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under the NS Act, is non-existent or misconceived or irrelevant, the order of detention would be invalid.
29. Keeping in view these well-settled legal principles, we have perused the grounds of detention and the documents relied on by the detaining authority while passing the order of detention. In our considered view, the grounds on which the detention order is passed has no probative value and were extraneous to the scope, purpose and the object of the National Security Act. This Court in Mohd. Yousuf Rather v. State of J&K [(1979) 4 SCC 370 : 1979 SCC (Cri) 999 : AIR 1979 SC 1925] has observed that under Article 22(5), a detenu has two rights
(1) to be informed, as soon as may be, of the grounds on which his detention is based and
(2) to be afforded the earliest opportunity of making a representation against his detention.
The inclusion of an irrelevant or non-existent ground among other relevant grounds is an infringement of the first right and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second right. No distinction can be made between introductory facts, background facts and “grounds” as such; if the actual allegations were vague and irrelevant, detention would be rendered invalid.”

Also in the reports so forwarded by the Sponsoring Authority, the petitioner has been referred as a hardened criminal and a mining mafia having a gang. The petitioner is a businessman and has never been booked under the Gangsters (Anti Social Activities) Act. The aforesaid facts mentioned by the Sponsoring Authority had the tendency of influencing the mind of the detaining authority and as such the same has rendered the impugned detention order invalid.
In the case of Vashisht Narain Karwaria vs. State of U.P. & Anr, reported in (1990) 2 SCC 629, the Hon’ble Supreme Court has been pleased to observe in Para-10 and 11, which are reproduced as under:-

“10. The above averments made in the above two letters, the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is a hardened criminal, having a gang under his control often committing heinous crimes, that many cases against the detenu are registered in various police stations and that he is in the habit of committing offences. No doubt, these averments are not made mention of in the grounds of detention. But can it be said that these materials placed before the authority might not have influenced the mind of the detaining authority in taking the decision of detaining the detenu? In our view, the above averments which are extraneous touching the character of the detenu though not referred to in the grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other in reaching the subjective satisfaction to take the decision of directing the detention of the detenu. As rightly pointed out by Mr Jain, had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order. Therefore, we have to hold that the detention order is suffering from the vice of consideration of extraneous materials vitiating the validity of the order. There are several pronouncements of this Court, on this point, of which we will make mention of the following decisions : Ram Krishna Paul v. Government of West Bengal [(1972) 1 SCC 570 : 1972 SCC (Cri) 334] ; Pushpa v. Union of India [1980 Supp SCC 391 : 1979 SCC (Cri) 1015] ; Merugu Satyanarayana v. State of A.P. [(1982) 3 SCC 301 : 1983 SCC (Cri) 18] ; Mehboob Khan Nawab Khan Pathan v. Police Commissioner, Ahmedabad [(1989) 3 SCC 568 : 1989 SCC (Cri) 655].

11. Mr Dalveer Bhandari relying on Section 5-A of the Act urged that the order of detention should not be deemed to be invalid or inoperative merely on the ground that some extraneous materials were placed before the detaining authority since those alleged extraneous materials have no bearing on the validity of this impugned order which can be sustained on the material set out in the grounds of detention itself. Placing reliance on decision of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Govt. of Kerala [1985 Supp SCC 144 : 1985 SCC (Cri) 332] wherein it has been observed that the ”grounds’ under Article 22(5) of the Constitution do not mean mere factual inferences but mean factual inferences plus factual material submitted that in the present case the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. We are unable to see any force in the above submission. What Section 5-A provides is that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the ground is vague, non-existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever, then that will not vitiate the order of detention.”

Thus, it is evident that the detention order is based upon false facts and on this ground alone, the impugned detention order deserves to be quashed.
The preventive detention is an encroachment upon the personal liberty of an individual and cannot be said to be encroached in a casual manner as has been done in the instant case.

In the case of Kamlesh Kumar Ishwardas Patel vs. Union of India & Ors., reported in (1995) 4 SCC 51, the Hon’ble Supreme Court has been pleased to hold that the safeguard provided under Article 22 Clause (4) and (5) of the Constitution of India provides safeguard which are required to be “zealously watched and enforced by the Court”. The relevant portion of the aforesaid judgment in the case of Kamlesh Kumar (supra) are reproduced as under:-

“49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenus the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenus are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The Framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be “zealously watched and enforced by the Court”. Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this Court while rejecting a similar submission: (SCC para 4)

“Maybe that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus.”
(See: Rattan Singh v. State of Punjab [(1981) 4 SCC 481 : 1981 SCC (Cri) 853] , SCC at p. 483)
50. We have, therefore, no hesitation in rejecting this contention.”

Another important aspect of the instant matter is that the possibility of the political influence leading to the passing of the detention order cannot be ruled out. Admittedly, the injured of the Case Crime No.334/2019 is a Member of Legislative Assembly.

Learned counsel for petitioner submits that the bail application of the petitioner was rejected by the Sessions Judge, Lakhimpur Kheri on 26.7.2019.
The impugned detention order dated 03.07.2019 shows that there is no application of mind by the detaining authority and there is no subjective satisfaction and the detaining authority has merely acted on the basis of the reports of the Sponsoring Authority which admittedly contains false, irrelevant and non-existent facts. Case of the prosecution is that on 21.3.2019, Yogesh Verma, the Sitting MLA along with his Gunner Mohit and friend Pankaj Verma was coming back home at 3.30 p.m. It is further alleged that near Gurunanak Nahar Puliya one Prem Verma, Naseem Khan and Pinku Saxena came in front of the motorcycle and stopped it, they abused Yogesh Verma and thereafter all the accused persons with the intention to kill, started firing, It is further alleged that because of the firing, Yogesh Verma suffering gunshot injury on his right leg and fell down. Thereafter the complainant namely Siddhesh Verma, Gunner and Pankaj Verma challenged the accused persons, who ran away. FIR was registered on 21.3.2019. The police recorded the statements of the complainant, who repeated the story mentioned in the FIR.

In view of what has been discussed above, the petition is allowed. The Impugned Order No.-XX/Ra.Su.Ka-Prem Verma @ Prem Narayan/19/J.A. dated 03.07.2019, passed by the District Magistrate, Lakhimpur Kheri, contained as Annexure No.1 as well as order dated 10.07.2019, Annexure No.2, bearing reference no.84/02/24/2019-CX-05, passed by the State Government and all subsequent/consequential detention orders passed thereafter in this regard are hereby quashed. Detenue shall be set at liberty forthwith by the respondents, if not wanted in any other criminal case.
Let a copy of this judgment be forwarded to the Chief Judicial Magistrate, Lakhimpur Kheri and the Station House Officer, Kotwali Sadar, District Lakhimpur Kheri for compliance.

Order Date :-
19.12.2019.
Irfan

The post Prem Narayan @ Prem Verma Throu.(Son) Amit Kumar Verma Vs Union of India Throu.Secy.Ministry of Home Affairs And Ors. appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2153 OF 2010
M/S. DYNA TECHNOLOGIES PVT. LTD. …APPELLANT(S)
VERSUS
M/S. CROMPTON GREAVES LTD. …RESPONDENT(S)
JUDGMENT

N. V. RAMANA, J.

1. The question involved herein revolves around the requirement of reasoned award and the cautionary tale for the parties and arbitrators to have a clear award, rather than to have an award which is muddled in form and implied in its content, which inevitably leads to wastage of time and resources of the parties to get clarity, and in some cases, frustrate the very reason for going for an arbitration.

2. This appeal is filed against the final order and judgment dated 27.04.2007, passed by the High Court of Judicature at Madras whereby the High Court partly allowed the appeal filed by the respondent and set aside the award of Arbitral Tribunal relating to claim no. 2 for payment of compensation for the losses suffered due to unproductive use of machineries.

3. Brief facts of the case are that a contract was entered into between DCM Shriram Aqua Foods Limited (hereinafter referred to as ‘DCM’ in short) and M/s. Crompton Greaves Limited (hereinafter referred to as “CGL” in short) for an aquaculture unit to be set up by such Principal, namely, DCM. CGL invited tenders for carrying out certain works for construction of ponds, channels, drains and associated works. The appellant M/s Dyna Technologies Pvt. Ltd. gave its proposal, estimate and quotation for carrying out the work. Thereafter, the respondent CGL placed a letter of intent dated 25th July, 1994, relevant portions of which are as under:

“10. In the event that you are forced to keep your equipment and manpower idle due to non availability of work fronts due to reasons attributable to DCM or due to legal disturbances not connected with you, you shall be compensated as follows:
(i) Maximum seven days of stoppage of work without any compensation.
(ii) CGL reserves the right to advice you to demobilize partially or fully in lieu of paying compensation for such delays. Under such circumstances, you shall be paid such compensation towards transportation of equipment to Site at mutually agreed rates.
(iii) Suitable time extension shall be given to complete the work to compensate the delay caused due to the stoppage of work.
11. Storage & Security: you will be responsible to provide necessary stores, office and labour camps for your staff at site. Only open area for construction of above will be given to you. Electricity will be provided at one point on chargeable basis at actuals. You will be responsible to tap the same to your required place. A format work order will be charged subsequently which will cover other General Terms and Conditions. Labour rules, Workmen Compensation etc. which may not be covered by this LOI and the same shall also be part of this LOI.”

4. The appellant made certain queries and clarifications, and by letter dated 10th October, 1994, CGL amended the contract as suggested by the appellant company. Thereafter, CGL issued work order on 15th November, 1994 setting out the terms and conditions of the work, material portions of which are stated as under:
“2. Termination of contract: The Company reserves the right to terminate this work at any stage without payment of compensation due to any of the following reasons:
a. If the original contract between the client and the company is terminated/suspended.
b. The company is unable to proceed with the work due to reasons like non­availability of work fronts, delay in availability of materials or delay in receipt of payments from clients etc.
c. If the contractor is not able to carry out work to the satisfaction of the company’s clients representatives.
d. If the contractor is unable to ensure adequate progress as required by the company and their purchaser.
e. Upon termination of this contract/work order, all rights and obligation of the parties, shall cease provided that the termination shall not relieve the contractor of any of his obligations which may have accrued upto the date of termination.
Upon termination of this contract/work order due to default on the part of the contractor, he /it shall indemnify the company against all losses incurred by the company as a result of such termination.”

5. After commencement of the work, the respondent CGL on 5th January, 1995 instructed the employees of the appellant company to stop the work.

6. The appellant company claimed compensation for such premature termination of the contract and ultimately the dispute was referred to Arbitral Tribunal consisting of three Arbitrators.

7. The appellant­claimant made the following claims:­
(1)Losses due to idle charges.
(2)Losses due to unproductivity of the men and machineries which could not work due to hindrances.
(3)Loss of profit as the contract got dissolved and
(4)Interest on the above claims and
(5)Costs.

8. The aforementioned claims are listed in the statement of claims totalling to Rs. 54,21,170.45 initially on 21st June, 1997 and revised to Rs. 53,83,980.45 on 5th July, 1997.

9. The following is a summary of the final claims:­

10. It may be relevant to note at this stage that so far as claim no. 1 in reference to the losses due to idle charges is concerned, it was finally settled amicably by the parties and the balance towards the interest component also stands paid.

11. So far as claim no. 3 in reference to loss of profit is concerned, the same was disallowed by the Arbitral Tribunal and it was later not questioned by the appellant­claimant and that attained finality.
12. The only objection is in reference to claim no. 2, i.e., losses due to unproductive use of machineries which was accepted by the Arbitral Tribunal for a sum of Rs. 27,78,125/­ with interest @ 18% p.a. vide its award dated 30th April, 1998 and Correction to award dated 5th May, 1998.

13. Aggrieved by the award passed by the Tribunal, an original petition was filed before the learned Single Judge of the High Court of Judicature at Madras, questioning the award under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter “Arbitration Act”), by the respondent. The learned Single Judge, while upholding the award of the Tribunal, observed as under:
“7. Thus the Arbitrators have given a specific finding that the amount paid as compensation is actually the amount expended by the fourth respondent and therefore the petitioner is liable to reimburse the loss sustained by the fourth respondent. Therefore, this contention is also not acceptable.
…
9. Further, the learned counsel for the petitioner took this court to various portions of the Award and tried to convince this Court that the Arbitrators have not decided the issue fully appreciating the evidence on record. In the judgment of the Supreme Court reported in M/s Sundarsan Trading Company v. Government of Kerala (AIR 1989 Supreme Court 890) it has been clearly held that the power of the Arbitrator in respect of the interpretation of the contract in a matter for arbitration, the Arbitrator can pass the Award by taking a particular view of the contract and hence, the Court cannot substitute its own decision. Therefore, this Court cannot reappraise the evidence and substitutes its views and set aside the Award. Also in the case of Tamil Nadu Civil Supplies Corporation Limited v. Albert and Company (2000 (III) CTC 83), this Court has held that as per Section 34 of the Act, the Award of the Arbitrator can be set aside only on the limited grounds and the Award cannot be interfered with simply because another view is possible on the available materials. The arbitrator is a Judge of choice of parties and this Court cannot set aside unless it suffers from error apparent on the face of the record. It cannot be set aside even if the Court can come to different conclusion on the same facts. The learned counsel for the petitioner has not pointed out any such ground. It cannot also be said that the Award is perverse or has error apparent on the face of the record. Therefore, the Award passed by the Arbitrator is not illegal or invalid and cannot be set aside. Therefore, the petition is dismissed.”
(emphasis supplied)

14. Aggrieved by the aforesaid decision of the learned Single Judge, the respondent appealed before the Division Bench in O.S.A No. 234 of 2001. As aforementioned, the High Court vide impugned order partly allowed the appeal and set aside the award of the Tribunal relating to claim no. 2. The High Court was of the opinion that the award does not contain sufficient reasons and the statements contained in paragraph 3.1 (a) to 3.1 (g) of the award does not provide any reasons, discussions or conclusion. The High Court has observed in the following manner:
“18. It is of course true that an Arbitrator cannot be expected to write a detailed judgment as in a law Court. However, the present Act contemplates that the award of the Arbitrator should be supported by reason. The decision relied upon by the counsel for the respondent, rendered on the basis of the Arbitration Act, 1940, cannot be pressed into service keeping in view the specific provision contained in the Act. Moreover, even assuming that the ratio of the said decision is applicable, we cannot cull out any underlying reason in the award for directing payment of compensation. The basis for the right of the claimant and the basis of the liability of the present appellant have not been indicated anywhere within four corners of the award and in spite of the best efforts it is not possible to discover even any latent reason in the award.
19. It was also contended that the discussion in para 3.1(g) of the award contains the basis and reason given by the Tribunal. We have carefully gone through such paragraph as well as the preceding and subsequent paragraphs. In our considered opinion, the statements recited in para 3.1 including para 3.1(g) are only substance of the submissions/claim made by the claimant and para 3.1(g) cannot be construed as a conclusion or even the reasoning given by the Tribunal.”

15. Having come to a conclusion that the arbitral award was deficient due to the lack of reasoning, the High Court proceeded further to note that the option of Section 34 (4) of the Arbitration Act was not necessary as the compensation could not have been claimed considering the fact that the work order has provision barring claim no. 2, in the following manner:
“20. Learned counsel for the respondent has relied upon Section 34(4) of the Arbitration Act and has submitted that in case if this Court finds that the Arbitral Tribunal has not given reason, even though it is so required under Section 31(3) by invoking jurisdiction under Section 31(4), this Court can give opportunity to the Arbitral Tribunal to resume the arbitral proceedings or to take action as in the opinion of the Arbitral Tribunal would eliminate the grounds for setting aside the arbitral award.
21. We do not think that the present case is a fit case where the Arbitral Tribunal can be called upon to give reasons in support of its conclusion. This is because, in our considered opinion, the terms of the contract clearly exclude the possibility of payment of any compensation on account of premature termination of the contract as envisaged in para C. 2(a).”

16. Thereafter, the High Court proceeded further to note that the arbitral proceeding was beyond the competence of the Tribunal by considering the conditions under the work order.

17. Learned counsel for the appellant submits that the Arbitral Tribunal comprising of three Arbitrators has looked into the entire material available on record and recorded a finding in reference to claim no. 2 (losses suffered due to unproductive use of machineries) based on the case set up by the parties taking note of Section 73 of the Indian Contract Act, 1872 (hereinafter “Contract Act”) and relying on the evidence including appraisal of the log books approved by the respondent and held that actual losses/expenses were incurred by the appellant. In the given circumstances it was not open for the High Court in appeal to reappraise and substitute its own view in contravention of the clause of the agreement pursuant to which the arbitral dispute was raised and a finding came to be recorded in acceptance of the claim with regard to the losses suffered by the appellant due to unproductive use of machineries and the interference made by the High Court is beyond the scope of Section 37 of the Arbitration Act.

18. Learned counsel further submits that the Division Bench of the High Court did not hold that the evidence relied upon by the Arbitral Tribunal, i.e., the log books were not proper or were lacking quality. As a matter of fact, there was no challenge to the same in the appeal filed by the respondent under Section 37 of the Arbitration Act and only the liability was questioned. The learned counsel further submitted that the only submission of the learned counsel for the respondent before the Arbitral Tribunal and also before the learned Single Judge of the High Court was that there was no provision under the contract granting compensation for loss incurred for unproductive use of machinery and that the Arbitral Tribunal has exceeded its jurisdiction. This issue was examined by the Tribunal and confirmed by the Single Judge of the High Court, after examining the objections raised by the respondent under Section 34 of the Arbitration Act. The learned counsel for the appellant contented that interference at the appellate stage is beyond the scope of Section 37 of the Arbitration Act and in the given circumstances, claim no. 2 which has been set aside by the Division Bench of the High Court under the impugned judgment deserves to be interfered by this Court.

19. Learned counsel also submits that Section 73 of the Contract Act confers a right which is for public interest/benefit and contractual clause, if any, which takes away such a right unilaterally of a party is violative of Section 23 of the Contract Act. The law which is made for an individual’s benefit can be waived by only by such individual, however, where law is for public interest or has policy element, then such rights cannot be waived by an individual person inasmuch as such rights are a matter of public policy/public interest.

20. Learned counsel further submits that a contractual provision which is in contravention of a specific statutory provision, if allowed to be implemented, the same will result in frustration of a right conferred by law or if the contractual clause is immoral or opposed to public policy, in such cases the contractual clause is invalid and void ab initio and cannot be enforced to disentitle appellant in claiming the actual loss which has been suffered by it and established before the Arbitral Tribunal and which the respondent is under an obligation to reimburse. In the given circumstances, claim no. 2 which has been set aside by the High Court needs interference by this Court. The learned counsel in support has placed reliance on the judgment of this Court in K.N. Sathyapalan (Dead) by Lrs. v. State of Kerala, (2007) 13 SCC 43.

21. Per contra, learned counsel for the respondent, while supporting the findings recorded by the High Court in the impugned judgment, submits that the claim which has been disallowed by the High Court in the impugned judgment is basically a claim for payment of compensation or damages on account of premature termination of contract and neither the Arbitral Tribunal nor the learned Single Judge of the High Court has considered/examined the terms of the contract in appreciating the right of the claimant to claim compensation of damages and the corresponding liability of the respondent to pay/settle the claim. According to him, as per the terms of contract, no such compensation was payable.

22. Learned counsel further submits that it is well settled that the Arbitral Tribunal cannot travel beyond the terms of contract to award compensation. As a matter of fact, in the present case, the terms of contract expressly prohibit that no compensation is payable if the contract is terminated on account of termination of the project. In the face of such express prohibition, the Arbitral Tribunal has exceeded its jurisdiction and committed a manifest error in directing the payment of compensation even without disclosing the basis of arriving at such a conclusion.

23. Learned counsel for the respondent submits that Section 34(2) (a)(iv) of the Arbitration Act clearly envisages that such an award can be set aside if the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration. When there is a specific exclusion/prohibition in the contract, it was not open for the Tribunal to travel beyond the terms of contract in passing an award which has been taken note of by the Division Bench of the High Court in the impugned judgment and has been rightly set aside, supported by cogent reasons. The learned counsel further submitted that what has been observed by the Division Bench of the High Court in the impugned judgment is based on settled principles of law and needs no interference.

24. We have heard learned counsel for the parties and with their assistance perused the material available on record.

25. Before we devolve into the contractual issues, we need to observe certain pointers on the jurisdiction of the court under Section 34 of the Arbitration Act. Section 34 as it stood before the Amendment Act of 2015, was as follows­
“34 Application for setting aside arbitral award. —
(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub­section (2) and sub­section (3).
(2) An arbitral award may be set aside by the Court only if—
(a) the party making the application furnishes proof that—
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the Court finds that—
(i) the subject­matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation. —Without prejudice to the generality of sub­clause (ii) it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
(4) On receipt of an application under sub­section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated.

27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act.

28. Having established the basic jurisprudence behind Section 34 of the Arbitration Act, we must focus on the analysis of the case. The primary contention of the learned counsel appearing on behalf of the appellant is that the award by the learned Tribunal was perverse for want of reasons. The necessity of providing reasons has been provided under Section 31 of the Arbitration Act, which reads as under:
“31. Form and contents of arbitral award.­
…
(3) The arbitral award shall state the reasons upon which it is based, unless—
(a) the parties have agreed that no reasons are to be given, or
(b) the award is an arbitral award on agreed terms under section 30.”
(emphasis supplied)
Under the UNCITRAL Model Law the aforesaid provision is provided as under:
“(2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under article 30.”

29. Similar to the position under the Model Law, India also adopts a default rule to provide for reasons unless the parties agree otherwise. As with most countries like England, America and Model Law, Indian law recognizes enforcement of the reasonless award if it has been so agreed between the parties.

30. There is no gainsaying that arbitration proceedings are not per se comparable to judicial proceedings before the Court. A party under Indian Arbitration Law can opt for an arbitration before any person, even those who do not have prior legal experience as well. In this regard, we need to understand that the intention of the legislature to provide for a default rule, should be given rational meaning in light of commercial wisdom inherent in the choice of arbitration.

31. A five­Judge Constitution Bench of this Court in the case of Raipur Development Authority v. Chokhamal Contractors, AIR 1990 SC 1426, considered the scope of Section 30 of the Arbitration Act, 1940 and held as under:
“It is now well settled that an award can neither be remitted nor set aside merely on the ground that it does not contain reasons in support of the conclusion or decisions reached in it except where the arbitration agreement or the deed of submission requires him to give reasons. The arbitrator or umpire is under no obligation to give reasons in support of the decision reached by him unless under the arbitration agreement or in the deed of submission he is required to give such reasons and if the arbitrator or umpire chooses to give reasons in support of his decision it is open to the Court to set aside the award if it finds that an error of law has been committed by the arbitrator or umpire on the face of the record on going through such reasons. The arbitrator or umpire shall have to give reasons also where the court has directed in any order such as the one made Under Section 20 or Section 21 or Section 34 of the Act that reasons should be given or where the statute which governs an arbitration requires him to do so.”

32. A three­Judge Bench of this Court in another case of S. Harcharan Singh v. Union of India, (1990) 4 SCC 647, reiterated its earlier view that the arbitrator’s adjudication is generally considered binding between the parties for he is a Tribunal selected by the parties and the power of the Court to set aside the award is restricted to cases set out in Section 30 of the Arbitration Act, 1940.

33. However, the ratio of Chokhamal case (supra) has not found favour of the Legislature, and accordingly Section 31(3) has been enacted in the Arbitration Act. This Court in Som Datt Builders Ltd. v. State of Kerala, (2009) 4 ARB LR 13 SC, a Division Bench of this Court has indicated that passing of a reasoned award is not an empty formulation under the Arbitration Act.

34. It may be relevant to note Russell on Arbitration, 23rd edn. (2007), wherein he notes that:
“If the Court can deduce from the award and the materials before it, which may include extracts from evidence and the transcript of hearing, the thrust of the tribunal’s reasoning then no irregularity will be found….Equally, the court should bear in mind that when considering awards produced by nonlawyer arbitrators, the court should look at the substance of such findings, rather than their form, and that one should approch a reading of the award in a fair, and not in an unduly literal way.”
(emphasis supplied)

35. The mandate under Section 31(3) of the Arbitration Act is to have reasoning which is intelligible and adequate and, which can in appropriate cases be even implied by the Courts from a fair reading of the award and documents referred to thereunder, if the need be. The aforesaid provision does not require an elaborate judgment to be passed by the arbitrators having regards to the speedy resolution of dispute.

36. When we consider the requirement of a reasoned order three characteristics of a reasoned order can be fathomed. They are: proper, intelligible and adequate. If the reasoning in the order are improper, they reveal a flaw in the decision­making process. If the challenge to an award is based on impropriety or perversity in the reasoning, then it can be challenged strictly on the grounds provided under Section 34 of the Arbitration Act. If the challenge to an award is based on the ground that the same is unintelligible, the same would be equivalent of providing no reasons at all. Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34 has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards.

37. At this juncture it must be noted that the legislative intention of providing Section 34 (4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits.

38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34 (4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced.

39. It may be noted that when the High Court concluded that there was no reasoned award, then the award ceased to exist and the Court was functus officio under Section 34 of the Arbitration Act for hearing the challenge to the award under the provisions of Section 34 and come to a conclusion that the arbitration award was not in terms of the agreement. In such case, the High Court ought to have considered remanding the matter to the Tribunal in the usual course. However, the High Court analyzed the case on merits, but, for different reasons and we need not go into the validity of High Court’s interference.

40. Coming back to the award, we need to see whether the award of the Arbitral Tribunal can be sustained in the instant case. Although the Arbitral Tribunal has dealt with the claims separately under different sub­headings, the award is confusing and has jumbled the contentions, facts and reasoning, without appropriate distinction. The Tribunal rendered the award with narration of facts with references to the annexures wherever it relied upon by it. The Tribunal abruptly concluded at the end of the factual narration, without providing any reasons, in the following manner:
“(3) Claim for unproductive usage of machineries
….
(g) All the above facts clearly establish that the machineries deployed by the Claimant had to do unproductive work by shifting from one place to another to suit the availability of work.The contract contemplates only payment for actual turnover of earthwork and for this they had received amount totaling to Rs. 1709782.88. The Claimant claims that the hire charges paid to the machineries, men and engineers should be reimbursed to him. He has given the actual expenses in his claim statement.
(emphasis supplied)

41. Interestingly, the factual narration is coupled with the claimant’s argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimant’s claim. Further, it has reduced the reasons for respondent’s defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned.

42. It may be beneficial to reduce the concluding paragraph of the award, which reads as under:
“3.4. The above arguments and various authorities quoted by them have been studied by the Tribunal and we are convinced that the compensation is payable on the hire charges and expenses incurred by the claimant based on the claims made by him in June 95 and now submitted by the claimant in his revised claim petition on 05.07.1997. We are convinced that the machineries have been actually mobilized from the letter R­3, R­8 and R­10 issued by DCM reporting on the number of machineries deployed by Claimant. The Claimants have produced the log books and bills for the various machineries and modified their claims. The tribunal had perused the log books and idle wages approved in C­7 by Respondent and the claims made in R­17.”
(emphasis supplied)

43. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties. From a perusal of the award, the inadequate reasoning and basing the award on the approval of the respondent herein cannot be stated to be appropriate considering the complexity of the issue involved herein, and accordingly the award is unintelligible and cannot be sustained.

44. In any case, the litigation has been protracted for more than 25 years, without any end for the parties. In totality of the matter, we consider it appropriate to direct the respondents to pay a sum of Rs. 30,00,000/­ (Rupees Thirty Lakhs only) to the appellant in full and final settlement against claim No. 2 within a period of 8 weeks, failing which the appellant will be entitled to interest at 12% per annum until payment, for providing quietus to the litigation.

45. In view of the conclusions reached, the appeal is disposed of to the extent indicated herein. There shall be no orders as to the costs.

……………………………………….J.
(N.V. RAMANA)
……………………………………….J.
(MOHAN M. SHANTANAGOUDAR)
……………………………………….J.
(AJAY RASTOGI)

NEW DELHI
DECEMBER 18, 2019.

The post M/s. Dyna Technologies Pvt. Ltd. Vs M/s. Crompton Greaves Ltd. appeared first on B&B Associates LLP.