High Court of Orissa

Gajraj Pasayat Vs. Debraj Pasayat and Ors.

MANU/OR/0230/2018

30.04.2018

Civil

Burden of proof to establish that transaction was entered into by pardanashin lady, after clearly understanding its nature, rest upon person who seeks to sustain a transaction

In instant case, Defendant No. 1 is the Appellant against a confirming judgment. Plaintiffs-Respondent Nos. 1 and 2 instituted the suit for declaration that, the gift deed dated 15th December, 1967 executed by the mother and brother of Defendant No. 1 in favour of the Defendant No. 1 is a fraudulent one and not binding on them and proforma Defendants. The specific case of the defendant No. 1 was that Chandrama and Kanhei executed the gift deed in his favour. The gift deed was acted upon. Learned trial Court decreed the suit with the finding that, the burden of proving the absence of fraud lies on the Defendant No. 1 in view of relationship. Defendant No. 1 was claimed to be the adopted son of Mohan before the settlement authorities. The same is a strong circumstance against him.

The principle governing the execution of deed by an illiterate woman is well known. In Mst. Kharbuja Kuer v. Jangbahadur Rai and others, the apex Court held that "in India, pardanashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as by the pardah system they are practically excluded from social intercourse and communion with the outside world”.

The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that, it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial."

In Agadhei Malikani and another v. Abhimanyu Mallik and others, present Court held that, the principles which govern the proof of execution of documents taken from pardanashin woman equally apply to the documents taken from an illiterate woman.

The gift deed, reveals that, Chandrama had put her L.T.I. There is no endorsement in the gift deed that, the contents of the gift deed had been read over and explained to Chandrama and after understanding the contents thereof, she put her L.T.I. Learned trial Court held that, it is highly inconceivable that, Chandrama executed a gift deed in favour of Defendant No. 1 in respect of her entire property. The gift deed had not been acted upon. Both the Courts concurrently held that, Defendant No. 1 played fraud and obtained a gift deed. There is no perversity or illegality in the said finding. The substantial question of law is answered accordingly.

Relevant

Mst. Kharbuja Kuer v. Jangbahadur Rai and othersMANU/SC/0392/1962
,: AIR 1963 SC 1203, Agadhei Malikani and another v. Abhimanyu Mallik and others, MANU/OR/0133/1968
: ILR 1968 Cut. 576

Tags : Gift deed Execution Fraud

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High Court of Bombay

Mangesh Vs. The State of Maharashtra and Ors.

MANU/MH/0807/2018

27.04.2018

Election

Gatneta can be changed by same process by which the leader was elected in absence of rules to the contra

The Petitioner, a Municipal Councillor at Parola and elected from the Shivsena party, assails the communication of the Collector, declaring Respondent no. 4 as Gatneta (Group Leader) of the party. In the month of November-2016, Municipal Council Election of Parola, District Jalgaon was held in which 5 candidates of Shivsena party including the Petitioner and Respondent No. 4 were elected. On 27th November, 2016, all the five candidates elected the Petitioner as their party leader and submitted representation with copy of resolution and copy of rules.

Some of the members felt aggrieved by the conduct of the Petitioner and on 12th December, 2017, a notice was issued by Respondent No. 4 to convene a meeting for taking decision on urgent matter. The meeting was held which was attended by Respondent No. 4 and two other members. The petitioner and one member remained absent. The three members unanimously resolved to change Gatneta and selected Respondent No. 4 as Gatneta. This decision was communicated to the Collector and the Collector by impugned communication recorded that, Respondent No. 4 had become Gatneta of Shivsena Municipal Party. Hence, present petition. The points for consideration are whether the change of Gatneta or leader in the present case has taken place after following the due process and whether the Collector has rightly accepted the change.

In Sunil Haribhau Kale v. Avinash Gulabrao Mardikar and others, Apex Court held that no outsider has authority to make change in the Gatneta. It was observed that, once the birth of a leader in a group is by way of election by the group, the group leader thus elected cannot be replaced otherwise than through the very same process of the election in the group, in the absence of any rules to the contra. This ruling lays down that, even if there is no provision prescribed for changing the Gatneta, the same procedure which is permitted for appointing the Gatneta can be followed for removal and replacing the Gatneta in absence of rules to the contra.

In the present case, the petitioner was not suspended nor was any action taken against him by the party for anti party activities. The judgment in Sunil Kale's case is applicable to the facts of the present case to some extent. It lays down that, the Gatneta can be changed by same process by which the leader was elected in absence of rules to the contra. In view of the Apex Court's ruling that there should not be any rule to the contra, the term providing that petitioner shall be continued as Gatneta till the next general election shall remain in operation as long as it is not changed.

There was no meeting held with proper and adequate notice. The Petitioner's contention that, the notice received by him discloses the date of meeting as 13th December, 2017 has not been controverted by Respondent No. 4. Copies of three notices disclose the date as 13th December, 2017 and therefore the meeting held on 12th December, 2017 cannot be said to be legal. Besides, the notices were served on 12th December, 2017 and the meeting was held on the same day at 10:00 AM. There was no sufficient opportunity for the parties to attend the meeting and take part in the same. The Petitioner and one of the members were absent at the time of meeting.

The Gatneta being Public Leader has to be selected by all members. Respondent No. 2 - Collector has not considered these legal aspects and has mechanically accepted the change which is not sustainable. It was essential for the group to first change the rules and then go for changing the Leader. In the light of the rules, the meeting for change of leadership could not have been held. Hence, the impugned communication is set aside. The petition is allowed.

Relevant

Sunil Haribhau Kale v. Avinash Gulabrao Mardikar and others reported in MANU/SC/0178/2015
: (2015) 2 Mh.L.J. 501

Tags : Meeting Leadership Change Validity

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High Court of Calcutta

Ajay Jalan and Ors. Vs. The State of West Bengal and Ors.

MANU/WB/0272/2018

27.04.2018

Criminal

Mere payment of contributions after filing of case will not absolve employer from his liability

In facts of present case, on November 19, 2014, Enforcement Officer, Employees Provident Fund Organization (Opposite party No. 2) inspected the establishment, Ultimo Logistics Private Limited. During inspection, he noticed that, the Petitioners being employers/Managing Director/Directors and the persons responsible for the conduct of the business of the said company though deducted a sum of Rs. 2,33,742 from the salary/wages of the employees as employees share of Provident Fund contribution for the period from March 2012 to October 2014 but not deposited the amount with the statutory fund in violation of Section 6 Employees'' Provident Funds And Miscellaneous Provisions Act, 1952 read with Para 38 of Employees Provident Fund Scheme. Accordingly, he lodged a complaint against the Petitioners. The instant revision has been preferred by the accused persons/Petitioners praying for quashing of the proceeding arising out of Case registered under Section 406/409/34 of the Indian Penal Code, 1860 (IPC).

Under the Employees'' State Insurance Act, 1948 (ESI Act), a duty has been cast upon the "principal employer" to pay the employee's share of contribution whereas Explanation 2 referred to the term 'employer' only and there was no definition of 'employer' either in the ESI Act or in the Indian Penal Code and as such the definition of word "principal employer" defined in Section 2(17) of the ESI Act was taken into account to consider as to whether the directors can be held liable for failure to pay the employee's share of contribution.

Admittedly, the company in question was not impleaded as an accused in the instant case. I find no reason to differ with the conclusion arrived at by present Court in Sajjan Kumar Jhunjhunwala and Ors. That non-inclusion of the company does not affect the case in anyway. Furthermore, Explanation 1 of Section 405 of IPC clearly speaks that, an employer of an establishment who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law. Once, it is found employer deducted the amount from the wages of the employees for contribution of the provident fund and retaining the same without depositing it with the fund, an automatic presumption is available against the employer that he dishonestly used the amount of said contribution in violation of a direction of law. It has already been observed that, it was the Petitioners who are the employers and persons responsible for the conduct of the business of the establishment. Under the circumstances absence of the company/establishment being made a party to the proceeding, the said proceeding cannot be become infructuous.

In the instant case, admittedly, there was a default in deposit of employees share of Provident Fund contribution for the period in question which was deposited subsequently after initiation of the instant proceeding. But mere payment of the contributions after filing of the case will not absolve the employer from his liability. Moreover, there is also neither any law nor any decision that in case of subsequent payment of employees share of Provident Fund contribution would result in quashing of the proceeding though it can be a mitigating circumstances to be taken into consideration in the event of the employer/accused found guilty by the trial court. In the matters of Sajjan Kumar Jhunjhunwala and Ors. and Anjuman Tea Company Ltd. and Ors. Court held that, subsequent deposit will not absolve the defaulter nor lead to quashing of the proceeding. Accordingly, the instant criminal revision is dismissed.

Relevant

Sajjan Kumar Jhunjhunwala & Ors. Vs. The State of West Bengal & Anr., Anjuman Tea Company Ltd. & Ors. Vs. State of West Bengal & Ors. MANU/WB/0548/2007
: 2008 (1) CHN 1061

Tags : Provident Fund Deposit Default Proceedings Quashing

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High Court of Bombay

Anil and Ors. Vs. The State of Maharashtra

MANU/MH/0782/2018

25.04.2018

Criminal

Circumstances must be proved which unerringly points out finger towards the accused and none else

Appellants assailed the judgment by which Appellants are convicted for the offences punishable under Sections 302, 109, 120-B, read with Section 34 of Indian Penal Code, 1860 (IPC). They are sentenced to suffer imprisonment for life and also to pay a fine of Rs. 1000 each. Learned counsel has pointed out evidence on record and submitted that, there was no any eye witness of the incident. The case of the prosecution only based on circumstantial evidence i.e. only recovery of weapon from the accused. Learned trial Court wrongly recorded its finding holding that in the confessional statement, accused admitted their guilt.

There was no any eye witness of the incident. The prosecution relied on the circumstantial evidence. It is well settled law that circumstances must be proved which unerringly points out finger towards the accused and none else. In the present case, none of the panch witnesses supported to the case of prosecution.

Trial Court wrongly relied on the memorandum statements of accused persons for the discovery of weapon. Learned trial Court has observed that, accused persons were arrested and their memorandum of admission of offence were recorded. They have admitted the guilt. Learned trial Court wrongly relied on Chemical Analyser Reports. As per the Chemical Analyser Reports, blood stains on clothes were of Group 'B'. Blood group of deceased was not determined. Learned trial Court wrongly held that Blood Group 'B' must be of deceased. Without any evidence, learned trial Court wrongly recorded its finding that Blood Group 'B' was of deceased. It is pertinent to note that, seizure panchanama of articles not duly proved. None of the panch witnesses supported to the case of prosecution.

Prosecution has failed to prove any of the circumstances against the Appellants. Statements/confessions of accused to discover the weapon is not wholly admissible. The only part of discovery is admissible. As per Sections 25 and 26 of the Indian Evidence Act, admission of guilt before the Police Officer is not admissible. Only exception is Section 27. As per Section 27, only statement of accused in respect of discovery is admissible. Other incriminating part in the confessional statements cannot be taken into consideration. Learned trial Court without considering the law under Sections 25 and 26 of the Indian Evidence Act, 1872 wrongly held that, Appellants admitted their guilt. Chemical Analyser Report is not substantive piece of evidence. Moreover, blood group of deceased was not determined. None of the panch witnesses proved the seizure of weapon. Learned trial Court wrongly relied on the evidence of Investigating Officer and wrongly convicted the appellants. Hence, Appellants are entitled for acquittal. The appeal is allowed. Impugned judgment is quashed and set aside.

Tags : Conviction Validity Circumstantial evidence

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High Court of Madras

Sri Mouna Swamigal Madam Vs. N. Sambandham and Ors.

MANU/TN/2121/2018

25.04.2018

Tenancy

Condition of building is not so essential. If it is shown that building is bona fide required by landlord for immediate purpose of demolition, eviction could be ordered

Aggrieved by the order reversing the order of eviction passed by the Rent Controller, Petitioners, who are trustees of Sri Mouna Swamigal Madam, also known as Manickavasa Swamigal Trust have preferred present revision. The case of the Petitioners is that, though the Respondent denied the rights of the Petitioners over the petition mentioned property, he is liable to be evicted from the petition mentioned premises on the ground of willful default committed by him. According to the Petitioners, since the petition mentioned premises is in dilapidated condition, it requires demolition and reconstruction. Therefore, the Petitioners have filed petition seeking eviction of the sole respondent under Sections 10(2)(i), 10(2)(ii) and 14(i)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

Tahsildar, Chidambaram has issued certificate to the effect that, the property and the building constructed thereon belong to Thillai Nayagam and Thillai Natarajan, who are trustees of Mounaguruswamigal Madam also known as Manickavasa Swamigal Trust. It is also seen from the records that, property tax was raised in the name of Thillai Nayagam and Thillai Natarajan for the property in Door No. 48B & 48B/1, Pudu Street. Therefore, the learned Rent Controller was right in saying that, the petition mentioned premises belongs to the Petitioners' trust and the Petitioners are the trustees. The Appellate Tribunal has failed to look into the aforesaid material piece of evidence.

The finding of the learned Rent Controller that, the sole Respondent was tenant and had paid rent upto December 1991 and thereafter, he committed payment of rent are based upon the oral and documentary evidence. The learned Rent Controller was also right in holding that, without the permission of the Petitioners, the Respondent has done some construction and therefore, he is liable to be evicted from the petition mentioned premises.

It is settled that, in order to seek eviction of the tenant under Section 14(1)(b) of the Act, it is not necessary that, the building should be in dangerous and dilapidated condition, requiring immediate demolition, though it is necessary to find out the condition of the building. In a number of decisions, it has been held that, condition of the building is not so essential and even if the building may not be much dangerous, if it is shown that, the building is bona fide required by the landlord for immediate purpose of demolition, eviction could be ordered. Admittedly, in the present case, the requirement of the Petitioners is bona fide. But the learned Appellate Tribunal failed to consider the case of the Petitioners.

In cases where the order passed by the Appellate Tribunal is perverse, which had resulted in miscarriage of justice, the High Court is empowered to exercise its power conferred under the said Act. The findings of the Appellate Tribunal are not in proper appreciation of evidence. On erroneous application of principles, the Appellate Tribunal reversed the order of eviction passed by the Rent Controller. Therefore, the order of Appellate Authority suffers from wrong approach and perversity calling for interference. The impugned order of the Appellate Tribunal is set aside and present Civil Revision Petition is allowed. The order of Rent Controller is confirmed.

Tags : Eviction Bonafide need Grant

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State Consumer Disputes Redressal Commission

Avneet Kaur Vs. Emaar MGF Land Private Ltd. and Ors.

MANU/SF/0012/2018

25.04.2018

Consumer

Whenever money has been received by a party and when its refund is ordered, right to get interest follows, as a matter of course

In facts of present case, the complainant purchased plot in Central Greens, Sector 105 and the total sale price of the plot, in question, was fixed at Rs. 40,82,394. Thereafter, Plot Buyer Agreement was signed and executed between the parties at Chandigarh. As per Clause 8 of the Agreement, possession of the plot was to be given within a maximum period of three years. Thereafter, the aforesaid plot was transferred in the name of the complainant. The complainant paid the total amount of Rs. 40,82,395/- to the Opposite Parties in respect of the plot, in question. It was further stated that, despite receipt of the huge amount from the complainant and repeated visits & letters/emails, the Opposite Parties failed to give possession of the plot, in question. It was further stated that permissions for raising colony/development of the land is not there. It was further stated that, the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 was filed.

Protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986." Recently, the larger Bench of the National Commission in a case titled as Aftab Singh v. Emaar MGF Land Limited & Anr., has held that, an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, it is evident from the record, that Plot Buyer's Agreement was executed between the parties at Chandigarh. Since, as per the documents, a part of cause of action arose to the complainant, at Chandigarh, Commission has got territorial Jurisdiction to entertain and decide the complaint.

Since, it has been admitted by the Opposite Parties, in their written statement that, possession would be offered shortly to the complainant. It means that, the Opposite Parties are not ready to hand over possession of the plot to the complainant within the stipulated period as mentioned in the Agreement or even at the time when the complaint was filed. Not only this, the amount deposited was also not refunded to the complainant, as such, there is continuing cause of action, in their favour. Under these circumstances, it is held that the complaint is not barred by time.

It was clearly mentioned in Clause 8 of the Agreement that, possession of the unit will be delivered by the Opposite Parties, within a maximum period of three years from the date of execution of the Agreement, subject to force majeure circumstances or reasons beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 3 years from the date of execution of the Agreement, as such, time was, unequivocally made the essence of contract.

Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word endeavour/tentative/proposed was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer's Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.

The Opposite Parties failed to deliver actual physical possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed, as the Opposite Parties in their written statement clearly stated that possession would be offered shortly to the complainant. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by her. The Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her.

An amount of Rs. 40,82,394/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that, for making delayed payments, the Opposite Parties were charging heavy rate of interest (compounded @15% p.a.) as per Clause 3 of the Agreement, for the period of delay in making payment of installments. It is well settled law that, whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs. 40,82,394, alongwith interest @10% p.a., from the date of transfer of the plot.

Relevant

Aftab Singh v. Emaar MGF Land Limited & Anr.

Tags : Plot Possession Deficiency Compensation

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