National Consumer Disputes Redressal Commission

Maninder Singh Grewal Vs. Conscient Infrastructure Pvt. Ltd. and Ors.

MANU/CF/0165/2019

29.03.2019

Consumer

A person approaching Court for redressal of grievance must place all relevant facts before Court clearly without any reservation even if those facts were against him

In Complaint case, it was stated that, Appellant/Complainant booked two units in Block-C in Commercial Complex project named "Conscient One" which was to come up at Gurgaon (Haryana) from the Respondents/Opposite Parties. With no hope of getting the units on time, the Appellant sent a legal notice for cancellation of booking and refund of the deposited amount, alongwith interest @18% per annum but with no response from the Respondents. Hence, the Complaint was filed.

The State Commission, vide order, dismissed the Complaint at admission stage on the ground that, the Appellant had himself mentioned that, the Agreement provided for delivery of possession within 42 months with grace period of six months from date of execution of the Agreement. The Agreement bears the date 24th August, 2015. Hence, the Appellant cannot seek possession before 24th August, 2019. The Complaint filed in 2016 was premature.

In BTM Industries Ltd. v. New India Assurance Co. Ltd. Divisional Office, in which this Commission held that, it is settled proposition of law that a person approaching the Court for redressal of his grievance must place all the relevant facts before the Court clearly, candidly and frankly without any reservation even if those facts were against him. If the person approaching the Court does not disclose all the material facts fairly and truly or states them in distorted manner or otherwise tries to mislead the Court, the Court has inherent power to proceed further with the examination of the case on merits. The Court/Tribunal certainly has to take into consideration the conduct of the party which invokes its jurisdiction and if it finds that the litigant tried to mislead or hoodwink, it must necessarily prevent him from abusing its process by refusing to hear him on merits of the case. Such a person, by his very conduct, disentitles himself from getting any relief from the court even if it is otherwise made out on merits.

In Sri Sarbati Steel Tubes Ltd. v. Oriental Insurance Co. Ltd., this Commission held that, since the Complainant/Appellant did not approach the State Commission with clean hands and rather tried to mislead it, it is not entitled to any relief whatsoever.

The State Commission has clearly stated in its order that, agreement executed between the parties itself provided for delivery of possession within 42 months with grace period of six months from date of execution of agreement i.e. from the date of 24th August, 2015. The Appellant has not produced any evidence to show that the Agreement was signed under duress.

The Appellant should wait till 24th August, 2019. If the Respondents do not handover the possession of both the units by then, cause of action would arise for filing a case before an appropriate Court/Fora. The First Appeal is dismissed and the order passed by the State Commission is affirmed.

Relevant

BTM Industries Ltd. vs. New India Assurance Co. Ltd. MANU/CF/0008/2016
; M/s. Sri Sarbati Steel Tubes Limited vs. The Oriental Insurance Co. Ltd. MANU/CF/0686/2013

Tags : Execution Agreement Possession delivery

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Supreme Court

United India Insurance Co. Ltd. Vs. Antique Art Exports Pvt. Ltd.

MANU/SC/0465/2019

28.03.2019

Arbitration

A party who alleged plea of fraud or coercion is under obligation to prima facie establish same

Present appeals have been filed by the Insurance Company assailing the order passed by the High Court appointing an Arbitrator in exercise of power under Section 11(6) of the Arbitration and Conciliation Act, 1996/Act to adjudicate the dispute between the parties.

The High Court taking note of the rival contentions of the parties and of Sub-section (6A) of Section 11 of the Act which has been introduced by virtue of Amendment Act, 2015 observed that, once there is existence of arbitration agreement, acceptance of the payment disbursed by the Appellant company, whether it was under coercion or undue influence, is a matter to be examined by the Arbitrator and accordingly proceeded to appoint the sole arbitrator to adjudicate the dispute between the parties.

The existence of an arbitration Clause in the contract of insurance is not in dispute. Execution of full and final agreement, receipt or a discharge voucher in itself cannot be a bar to arbitration.

It is true that, there cannot be a Rule of thumb and each case has to be looked into on its own facts and circumstances, taking note of the broad principles. A mere plea of fraud, coercion or undue influence in itself is not enough and the party who alleged is under obligation to prima facie establish the same by placing satisfactory material on record before the Chief Justice or his Designate to exercise power under Section 11(6) of the Act.

In the given facts and circumstances, the discharge and signing the letter of subrogation was not because of any undue influence or coercion as being claimed by the Respondent. Appointment of an arbitrator is a judicial power and is not a mere administrative function leaving some degree of judicial intervention when it comes to the question to examine the existence of a prima facie arbitration agreement, it is always necessary to ensure that the dispute resolution process does not become unnecessarily protracted.

In the instant case, prima facie no dispute subsisted after the discharge voucher being signed by the Respondent without any demur or protest. The claim had been settled with accord and satisfaction leaving no arbitral dispute subsisting under the agreement to be referred to the Arbitrator for adjudication.

The High Court has committed a manifest error in passing the impugned order and adopting a mechanical process in appointing the Arbitrator without any supportive evidence on record to prima facie substantiate that an arbitral dispute subsisted under the agreement which needed to be referred to the arbitrator for adjudication. Consequently, the appeals are allowed and the order passed by the High Court is accordingly set aside.

Tags : Arbitrator Appointment Validity

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High Court of Gauhati

Dilip Prasad Dutta Vs. The State of Assam and Ors.

MANU/GH/0198/2019

28.03.2019

Criminal

At stage of framing charges, Court would only be required to consider existence of a prima facie case

Present Petition has been filed under Section 482 of Code of Criminal Procedure, 1973 (CrPC) praying for setting aside the order by means of which, the learned Judicial Magistrate First Class, has framed charges against the Petitioner under Sections 120(B)/419 of the Indian Penal Code (IPC) in connection with case. The basic contention of the Petitioner is that, the trial Court had committed manifest illegality in framing charge in this case solely based on the confession of the co-accused. The question that arises for consideration in the present case is as to whether the statement of a co-conspirator would be a piece of substantive evidence so as to convict the co-accused.

Law is well settled by a long line of judicial pronouncements that, at the stage of framing charges, the Court would only be required to consider existence of a prima facie case. In Union of India vs. Prafulla Kumar Samal and another, the Supreme Court has held that, the test to determine a prima facie case would depend upon the facts of each case and it would be difficult to lay down a rule of universal application.

Sections 10 and 30 of the Evidence Act, 1872 operate on completely different planes. Law is settled that, confession of a co-accused under Section 30 of the Act is never to be treated as substantive evidence. However, the same is not true in case of anything said or done by a co-conspirator with reference to the common intention to commit a crime. As per Section 10, such statement of the co-conspirator would be admissible in evidence. However, to apply Section 10, the Court must have reasonable ground to believe that, the accused persons have conspired together to commit an offence in furtherance of their common intention and secondly, the act or statement of the co-conspirator must be done or made during the subsistence of the conspiracy and not after the conspiracy has come to an end. If these conditions are fulfilled then anything said or done by a co-conspirator will be relevant fact and hence, admissible in evidence against the other conspirator/accused with reference to their common intention.

In view of the facts and circumstances of the case, a rebuttable presumption arises in favour of existence of reasonable ground to believe that both the accused persons in present case had conspired to commit the offence of cheating by personation. Therefore, a prima facie case is made out for framing charges against the Petitioner under Section 120-B/419 of IPC. There is no merit in present criminal petition and the same is accordingly dismissed.

Relevant

Union of India vs. Prafulla Kumar Samal and another, MANU/SC/0414/1978

Tags : Charge Proceedings Validity

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High Court of Patna

Subodh Kumar Verma Vs. The State of Bihar and Ors.

MANU/BH/0442/2019

28.03.2019

Criminal

For wrongdoing of a Company, its officers may be responsible, but not to extent that all employees of a Company would be criminally liable

The Petitioner has moved the Court under Section 482 of the Code of Criminal Procedure, 1973 (CrPC). For quashing of the order of cognizance passed by learned Judicial Magistrate. The allegation against the Petitioner and three others is that their Company entered into agreement with the company of opposite party No. 2 (O.P.), for supply of mustard oil for which security money was taken but when the oil was not supplied, the agreement was cancelled and cheque of Rs. 4,11,000 was given to the O.P., which was dishonoured.

The Petitioner submitted that, the agreement of the O.P. was with the Company of which two other accused are the Managing Director/Director. It was submitted that, the Petitioner was only a paid employee of the Company of the other co-accused and further that the agreement was entered into between the O.P. and other co-accused and also the same was cancelled not by the Petitioner but by the other accused.

Similarly, it was submitted that even the cheques which were issued in favour of the O.P., the same were by the other co-accused being the Managing Director/Director of the Company in which the Petitioner was employed. Learned counsel submitted that the case basically relates to allegation of cheating by not supplying mustard oil by the Company to the O.P. can at best be attributed to the Company and its owners but not to the Petitioner who was the Regional Sales Manager at Muzaffarpur.

No criminal act can be attributed to him for the reason that even if the averments made in the complaint are accepted on their face value, at best, it would be against the other co-accused who being the Managing Director/Director of the Company, and who are the owners of the Company. Thus, the Court does not find that any criminal proceeding against the Petitioner is fit to proceed based on the averments made in the complaint in the present case.

For the wrongdoing of a Company, its officers may be responsible, but not to the extent that all the employees of a Company would be criminally liable. In the present case, it was only the other co-accused in the capacity of Managing Director/Director of the Company, who are also the owners of the Company, and who have either got into an agreement with the O.P. or cancelled the agreement or had issued the cheques in favour of the O.P., which are said to have been dishonoured, can be held accountable for such non-encashment of the cheques. The entire criminal proceeding arising out of Complaint Case pending before the court below, as far as it relates to the Petitioner, stands quashed. Application allowed.

Tags : Proceedings Quashing of Validity

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Supreme Court

Mani and Ors. Vs. State of Kerala and Ors.

MANU/SC/0447/2019

01.04.2019

Criminal

Right of private defence does not extend to inflict more harm than it is necessary in exercise of right of private defence

The challenge in the present appeals is to a judgment maintaining conviction of the Appellant for an offence under Section 302 of Indian Penal Code, 1860 (IPC), whereas, conviction of the other Accused was maintained for offences under Sections 324 and 341 read with 34 of IPC while acquitting said Accused for an offence under Section 302 of IPC. Question involved in present appeal is whether benefit of right of private defence is to be given to the Appellant.

There is no error in the order passed by the High Court that, there was no common intention in causing death of Soman. The prosecution has not produced any evidence showing that ,the Accused were present at the place of occurrence at Chozhiyamkod or that they were part of the group creating trouble at that place. There is no evidence that any incident occurred at that place either of burning of sari due to fire crackers or of missing of flag. Therefore, genesis to the dispute has not been proved by the prosecution.

All the injured witnesses have consistently deposed the death of Soman by the Appellant. The injury received by the Appellant is not serious, therefore, he could not have attacked the deceased on chest which is vital part, as such injury is likely to cause death. Therefore, the Appellant is not entitled to right of private defence which does not extend to inflict more harm than it is necessary in exercise of right of private defence. Therefore, the plea that the Appellant acted in his private defence is not made out.

However, the Appellant came from west direction at the place of occurrence riding on a motorcycle. The Accused had no knowledge or information that the victims are moving towards Chozhiyamkod. The prosecution witnesses have deposed that the Accused or the victims did not have any personal enmity except political differences. The Appellant was suddenly confronted with the victims and in the fight ensued in which the injuries came to be inflicted upon the deceased and other victims.

In view of sudden fight without any premeditation, the conviction of the Appellant for an offence under Section 302 of IPC is not made out. The cause of death of the deceased is knife blow on the chest of the deceased-Soman. Such injury is with the knowledge that, such injury is likely to cause death, but without any intention to cause death. Thus, the death of Soman is a culpable homicide not amounting to murder as the death has occurred in heat of passion upon a sudden quarrel falling within Exception 4 of Section 300 of IPC. Therefore, it is an offence punishable under Section 304 Part I of IPC.

The Appellant has undergone more than seven years of actual imprisonment. Therefore, keeping in view the background and the circumstances in which the occurrence happened, sentence imposed on the Appellant is warranted to be modified to as already undergone while maintaining fine of Rs. 20,000. Criminal Appeal filed by the Appellant is partly allowed and Criminal Appeal filed by the State of Kerala is dismissed.

Tags : Conviction Private defence Applicability

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Supreme Court

Kerala State Road Transport Corporation and Ors. Vs. Akhilesh V.S. and Ors.

MANU/SC/0448/2019

01.04.2019

Service

Mere existence of vacancies or empanelment does not create any indefeasible right to appointment

In present case, the Appellant is aggrieved by the direction to make appointments against 97 vacancies on the post of Blacksmith Grade II. The sanctioned cadre strength of the post was 800, of which 395 vacancies were already filled by substantive appointments. The Appellant made a requisition for 405 vacancies to the Kerala Public Service Commission, which forwarded a recommendation with regard to 351 vacancies initially, and later for another six posts followed by twenty-three more against non-joining vacancies.

Respondent Nos. 1 and 2, being applicants, were empanelled at serial Nos. 284 and 294 respectively in the rank list. Appointments were made till rank No. 278 only. The rank list has expired on 21st October, 2017. The Respondents did not allege discrimination or arbitrariness by violation of the rank list in making appointments. The High Court opined that, the Appellant was obliged to make appointments against requisitioned vacancies including those that may have arisen subsequently, but during the life of the rank list. The short question arising for consideration in these appeals is whether mere empanelment can justify a mandamus to make appointments because vacancies may exist.

The cadre strength has rightly been held not to be a relevant consideration. The High Court has erred in issuance of mandamus to fill up a total of 97 vacancies, including those arising subsequently but during the life of the rank list. Vacancies which may have arisen subsequently could not be clubbed with the earlier requisition and necessarily had to be part of another selection process. The law stands settled that mere existence of vacancies or empanelment does not create any indefeasible right to appointment. The employer also has the discretion not to fill up all requisitioned vacancies, but which has to be for valid and germane reasons not afflicted by arbitrariness. The Appellant contends a financial crunch along with a skewed staff/bus ratio which are definitely valid and genuine grounds for not making further appointments. The court cannot substitute its views over that of the Appellant, much less issue a mandamus imposing obligations on the Appellant corporation which it is unable to meet.

In Manoj Manu v. Union of India, it was held that, merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies. The orders of the High Court are accordingly set aside. The appeals are allowed.

Relevant

Manoj Manu v. Union of India, MANU/SC/0782/2017

Tags : Vacancies Appointment Direction Validity

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