Central Electricity Regulatory Commission

Power Grid Corporation of India Limited Vs. Aryan MP Power Generation Private Limited

MANU/CR/0331/2019

26.12.2019

Electricity

A person deprived of using legitimately entitled money has a right to be compensated for the deprivation by way of interest, compensation or damages

The Review Petitioner, Power Grid Corporation of India Ltd., has filed the present Review Petition under Section 94 of the Electricity Act, 2003 read with Regulations 103, 111 and 114 of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908 for review of order dated 3rd December, 2018. As per the impugned order, the Review Petitioner was directed to refund the Bank Guarantee after adjustment of the relinquishment charges to the Respondent, with 9% interest from the date of encashment till the date of payment.

The Respondent has vested right in receiving the interest on the encashed bank guarantee amount in terms of settled principles of law laid down by the Hon'ble Supreme Court in the case of Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and others Vs. N.C. Budharaj (Deceased) by lrs. and others in which the Hon'ble Supreme Court held that, a person deprived of the use of money to which he was legitimately entitled, has a right to be compensated for the deprivation by whatever name it may be called, viz, interest, compensation or damages.

The Commission, in the order dated 3rd December, 2018 had came to the conclusion that, the Respondent (Aryan) had relinquished the LTA granted and the liability of the Respondent for payment of relinquishment charges would be decided in the light of the decision in Petition and observed that, there was no requirement to direct the Review Petitioner to refund the encashed BG. The Commission further observed that, any amount that becomes due and payable after adjustment of the relinquishment charges, is required to be refunded by the Review Petitioner with 9% interest from the date of encashment till the date of payment. However, the Commission in Para 22 of the impugned order had not issued any specific direction to CTU to keep the encashed BG in a separate/fixed account till the disposal of the Petition.

According to the Review Petitioner, when a Bank Guarantee is encashed by CTU as per the provisions of the BPTA, the encashed Bank Guarantee amount is disbursed to the POC pool and there is no question of earning of interest thereon. The Review Petitioner has further submitted that in the present case, the Bank Guarantee has been retained by it as per the Commission's order and therefore, it cannot be termed as wrongful detention of monies and interest thereon.

In terms of the Orders of the Commission, the encashed Bank Guarantee amount was not to be disbursed to the PoC pool and had to be retained by the Review Petitioner. Rather, the Review Petitioner was required to adjust the encashed BG amount once order in Petition was issued. Hence, the contention of the Review Petitioner that, the amount enchased under the Bank Guarantee is disbursed to the POC Pool by CTU and there is no question of earning of interest thereon, is not justified in present case. Therefore, PGCIL is liable to pay the interest earned on encashed BG (after adjustment of relinquishment charges) amount from the date of encashment till the date of payment as per order in Petition No. 92/MP/2015. Review Petition is disposed of.

Relevant

Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and others Vs. N.C. Budharaj (Deceased) by lrs. and others [ MANU/SC/0016/2001
]

Tags : Refund Bank Guarantee Direction

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High Court of Calcutta

Y. Tulasiamma Vs. M. Andiyappan and Ors.

MANU/WB/2989/2019

24.12.2019

Motor Vehicles

For determining future prospects, age of victim as on date of accident is to be taken as starting point for calculation

Present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against a judgment of Tribunal in MACT case, passed in an application under Section 166 of the Act filed by the Appellant who was the Claimant No. 1 before the Tribunal.

The Tribunal held that, the claimant was liable to be compensated with an amount of Rs. 5,80,200 together with interest at 6% from the opposite party No. 2/Insurance Company, from the time of filing of the claim application till the date of realization of the cheque and interest at the rate of 8% in case of default. The issue which falls for consideration is whether the amount of compensation of Rs. 5,80,200 awarded by the Tribunal together with interest at 6% is justified in the facts of the case and the relevant decisions on the subject.

In the present case, the Tribunal assessed the notional income of the deceased at Rs. 4,000 per month. The examination-in-chief of the Appellant (the mother of the deceased) stated that, the deceased was working as a private labourer and was earning Rs. 6,000 per month. The assessment of Rs. 4,000 as notional income by the Tribunal therefore does not appear to have any basis.

For determining future prospects, the age of the victim as on the date of the accident should be taken as the starting point of the calculation to be made. In Future General India Insurance Co. Ltd. Vs. Soumita Roy, the Court held in favour of compensation for loss of love and affection caused by the death of a sibling. For arriving at the compensation awarded, the Court was of the view that, compensation must be "just" in the facts of this case and not an arbitrary or fanciful amount without having any nexus to the extent of loss suffered by the members of the family of the deceased.

The expression "compensation" means to recompense the Claimant for the loss suffered or likely to be suffered as a result of the unexpected or untimely death of a family member caused by a motor accident. The Supreme Court has held in a number of decisions that, the compensation to be determined should be just, adequate and reasonable, taking into account the impact and consequences flowing from the sudden loss of a family member which would have a lifelong bearing on the remaining family members of the deceased.

The impugned judgment and Award of the Motor Accident Claims Tribunal is set aside. The annual income of the deceased will be taken as Rs. 72,000 at the rate of Rs. 6,000 per month. An addition of 50% of the annual income amounting to Rs. 36,000 shall be made towards future prospects which would be added to the annual income. On such addition, the sum amounts to Rs. 1,08,000.

The total compensation amount of Rs. 10,08,300 shall carry an interest @ 8% per annum from the date of filing of the claim application till the date of receipt of the amount by the Appellant, failing which interest at the rate of 9% per annum will be borne by the Insurance Company for the same period. The appeal stands disposed of.

Tags : Compensation Quantum Legality

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High Court of Delhi

ICICI Bank Limited Vs. Nidhi Sharma

MANU/DE/4415/2019

23.12.2019

Banking

When the application for appointment of Receiver or for permission for sale is moved, Trial Court shall consider the same expeditiously

The present petition has been preferred by the Petitioner/Plaintiff ("Bank") challenging the impugned order by which Trial Court has simply adjourned the application filed by the Bank under Order XXXIX Rule 6 of Code of Civil Procedure, 1908 (CPC), seeking permission to sell the hypothecated vehicle, which is currently in the Bank's custody.

The Respondent/Defendant ("Defendant") had entered into an agreement for financing of the vehicle. Due to defaults in payment by the Defendant, a suit for recovery was filed by the Bank, along with an application under Order XL Rule 1 of CPC, for appointment of a receiver for the hypothecated vehicle, with power to sell. It is submitted that, the receiver has already been appointed and the bank official has taken possession of the vehicle. Since, the Defendant continued to not appear before Court, the application under Order XXXIX Rule 6 of CPC came to be filed by the Bank seeking permission to sell the vehicle.

In general, whenever the Court finds that the availment of the loan itself is admitted, either due to the payment of some instalments or on the basis of documents, the Court can appoint a Receiver for taking the possession of the vehicle. The vehicle can be taken either from the address given in the loan application or from any other location where it may be found. The directions given in M/s. ICICI Bank Ltd. v. Kamal Kumar Garewal can be prescribed as a general procedure to be followed for taking possession of the vehicle, precautions to be taken during the same, preservation of evidence as to the status of the vehicle and maintenance of the safe custody of the vehicle. The Court's judgment has also made adequate provisions for payments by the Defendant even after the possession is taken. If the payments are not made, a proper course of action would be permission for sale by public auction.

The procedure laid down in M/s. ICICI Bank Ltd., ought to be followed generally by the Trial Court while dealing with the Banks' suits, which involve vehicle loan. The preservation of the vehicle initially and thereafter permitting the public auction is essential in order to ensure that the value of the vehicle is not eroded and the Bank does not incur the additional expenses, maintenance for parking space etc. Thus, whenever the application for appointment of Receiver or for permission for sale is moved, the Trial Court shall consider the same expeditiously.

It is directed that, the Bank would be entitled to sell the vehicle through a proper public auction with written notice to the Defendant. The notice would be served by way of speed post at the known address(es) of the Defendant, as also the location from where the possession of the vehicle was taken. The Defendant is also permitted to participate in the auction. The petition and all pending applications are disposed off.

Tags : Vehicle Sale Auction

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High Court of Gujarat

Sakir Gulam Jogiyat Vs. State of Gujarat and Ors.

MANU/GJ/3190/2019

23.12.2019

Civil

Authorities are duty bound in law to make necessary inquiries before making changes in the birth certificate

In present petition, under Article 226 of the Constitution of India, 1950, the Petitioner has prayed to direct the Respondents no. 3 & 4 to delete the name of the Petitioner from all the records of Respondent no. 5 maintained in their school and office including School Leaving Certificate of Respondent no. 5.

The Petitioner made an application to the Respondent no. 4 school to correct the school records and delete the name of the Petitioner as father of Respondent no. 5. It appears that, the District Primary Education Officer, at the relevant time opined that since Respondent no. 5 was in the secondary Section, the same could not be done by the District Primary Education Officer. On a specific request made, the same was rejected on the ground that, since Respondent no. 5 had left the school, the request for correction of records in the school could not be done.

This Court vide order passed in Special Civil Application had directed to delete the name of the Petitioner as father of Respondent no. 5 in the birth certificate of Respondent no. 5 pursuant to which a fresh birth certificate was issued in favour of Respondent no. 5. Present Court in the said order had categorically relied on the decision of this Court in the case of Mulla Faizal @ Fazilabanu Suleman Ibrahim vs. State of Gujarat and others wherein it is held that, the authorities under the provisions of Section 15 of the Registration of Births and Deaths Act, 1969 read with Rule 12 of the Gujarat Births and Deaths Registration Rules, 2004 are duty bound in law to make necessary inquiries before making changes in the birth certificate and in absence of such inquiry the inclusion of the name of the Petitioner in the birth certificate is bad.

Further, in the decision rendered in Special Civil Application, on the point of Regulation 12-A(6) preventing the school from changing the name once the student has left the school, present Court has specifically opined that Regulation 12-A(6) is meant for curbing malpractice and preventing unscrupulous persons from obtaining advantage. The Court has held that, for genuine and bonafide lapses, the same cannot be thrown out on the ground of technicalities.

In the facts of the present case, it is evident that this is not a case of malpractice or malafide. This Court vide order has already permitted the Petitioner to have his name deleted from the birth certificate of Respondent no. 5 and therefore based on the same, the Petitioner deserves to have his name deleted from the records of the school where the Respondent no. 5 was studying. Merely on the ground that the ward has left the school, the authorities cannot reject the request of the Petitioner. Respondents no. 3 & 4 are directed to delete the name of the Petitioner from the records of Respondent no. 5 including the School Leaving Certificate issued by the school. Petition is accordingly allowed.

Relevant

Mulla Faizal @ Fazilabanu Suleman Ibrahim vs. State of Gujarat and Ors. MANU/GJ/1098/2000

Tags : Records Name Deletion

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High Court of Himachal Pradesh

Kehar Singh Vs. State of Himachal Pradesh

MANU/HP/2368/2019

23.12.2019

Criminal

Freedom of an individual cannot be curtailed for indefinite period during pendency of trial

Bail Petitioner who is behind the bars since 31st July, 2019, has approached present Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) praying therein for grant of regular bail in case FIR under Section 306 of IPC, registered at police Station.

Complainant alleged that, her deceased daughter consumed poison on account of cruelty meted to her by bail petitioner as such, appropriate action in accordance with law may be taken against him. In the aforesaid background, a case under Section 306 of IPC, came to be lodged against the bail Petitioner on 31.7.2019 and since then he is behind the bars.

Present Court finds that, on 31st July, 2019 deceased committed suicide by consuming poison, but investigation conducted so far reveals that none of the independent witness has stated something specific with regard to ill-treatment and mental harassment to the deceased by the bail Petitioner or his other family members. It is only complainant(father) and sister- in-law of the deceased, who have stated that, deceased committed suicide on the instigation of present bail petitioner. None of the witnesses from the locality, where deceased used to reside prior to alleged incident has stated something specific with regard to maltreatment meted to the deceased by the petitioner or other family members.

Statement of son of the deceased clearly suggests that, before the alleged incident, some verbal altercation took place inter se bail Petitioner and the deceased, whereafter deceased consumed poison, but definitely that cannot be a ground to conclude at this stage that bail petitioner compelled/instigated the deceased to commit suicide. The question "whether cruelty was being meted to deceased on account of bringing less dowry and deceased was being given merciless beating by bail petitioner" is to be decided and determined by the Court below on the basis of the totality of evidence to be collected on record by the Investigating Agency. Present Court sees no reason to curtail the freedom of bail petitioner for indefinite period during trial, especially when nothing remains to be recovered from him. It is not in dispute that there is none to take care of minor son of the bail Petitioner.

Hon'ble Apex Court as well as this Court in catena of cases have held that, freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail Petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence. Apprehension expressed by learned Additional Advocate General with regard to petitioner's fleeing from justice in the event of his being enlarged on bail, can be best met by putting him to stringent conditions.

Recently, the Hon'ble Apex Court in Dataram Singh vs. State of Uttar Pradesh & Anr., has categorically held that, a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that, while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.

Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court, with conditions. The bail petition stands disposed of accordingly.

Tags : Bail Grant Conditions

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National Consumer Disputes Redressal Commission

Anil Kumar Jain and Ors. Vs. Nexgen Infracon Private Limited

MANU/CF/0935/2019

23.12.2019

Consumer

Complainants cannot be made to wait indefinitely for delivery of possession, when they had already paid almost entire consideration

Instant Consumer Complaints, under Section 21 read with Section 12(1)(a) of the Consumer Protection Act, 1986 have been filed by the Complainants, the Allottees of Residential Flats/Apartments in a Project to be developed and constructed by the Opposite Party seeking possession of their respective booked Flats or refund of the amount paid with interest and compensation for the losses suffered by them on account of Unfair and Restrictive Trade Practices adopted and the deficient services rendered by the Opposite Party in not handing over the possession of the allotted Flats/Apartments within the stipulated time.

It is the case of the Complainant that, despite payment of the entire sale consideration for the booked Flat, the possession of the same, which was to be delivered by 1st February, 2016, has not materialized till date, that the penalty promised in the Allotment Letter for delay in construction beyond 31st December, 2016 has also not been paid, the layout Plan of the Project has been got amended twice making various changes to the Project.

The preliminary objection of the Learned Counsel for the Opposite Party that the Complainants are not 'Consumers' and have booked the Flat for earning high speculative gains is not supported by any documentary evidence. As laid down by this Commission in a catena of judgments that, the onus of proof shifts to the Opposite Party to prove that the Complainants have purchased the Flat for the purpose of re-sale and it is observed that the Opposite Party did not discharge its onus of proof regarding this aspect. Hence, it is held that the Complainants are 'Consumer' as defined under Section 2 (1) (d) of the Act, 1986.

As regards the default of the Contractor, impact of demonetization and implementation of GST, to cause delay on account of shortage of cash for payment to the labour, shortage of labour and material, no documents have been placed on record by the Opposite Party to show that, it could not get adequate work force or sufficient building material to complete the construction of the Project within the time stipulated in the Allotment Letter. There is no evidence that, the building material or the manpower not being available in the market. It cannot be accepted that due to default on the part of the Contractor, demonetization or implementation of GST, the Opposite Party could not arrange adequate labour or building material required for timely completion of the Project.

Though the Opposite Party is still ready and willing to hand over the possession of the allotted Flats to the Complainants with the compensation in terms of Clause 10.4 but some of the Complainants are not interested to take possession of the Flats due to delay of more than four years in delivering the possession, change in layout Plan and there being no committed date in the near future of completion of the Project. Therefore, they have sought the refund of the amount paid along with interest and compensation. In Emmar MGF Land Ltd. &Ors. vs. Amit Puri, this Commission has held that, after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession or seek refund of the amounts paid with reasonable interest. The Complainants cannot be made to wait indefinitely for the delivery of the possession, when they had already paid the almost entire consideration. In such circumstances, it is well within the Complainant's right to seek for refund of the principal amount with interest and compensation.

Wherever the Builder commits a particular date or time frame for completion of the construction and offering possession to the Buyer, they must necessarily honour the commitment made by them, though a minor delay may not constitute deficiency in the service rendered by them to the Buyer. If the Builder is able to show that the delay in completion of the construction and offering possession to the Buyer is attributable wholly to the circumstances beyond its control, that may not be a case of deficiency in the services rendered to the Consumer.

As the Builder Opposite Party has failed to deliver the possession of the Flats to the Complainants latest by 31st December, 2016, i.e. the stipulated period with grace period in the Agreement and approximately 3 years have passed but the possession has not been given and the Complainants cannot be made to wait for such a long period, they are entitled for refund of the deposited amount along with compensation. Developer are directed to refund the entire amount deposited by the Complainants along with compensation @ 12% p.a. from the respective dates of deposits till the date of realisation, within a period of one month failing which the Builder/Opposite Party shall be liable to pay compensation @ 14% p.a.

Relevant

Emmar MGF Land Ltd. &Ors. vs. Amit Puri - MANU/CF/0317/2015

Tags : Deficiency Compensation Entitlement

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