Legal updates - 11/07/2017

1.      There cannot be any settlement between the parties as to the manner in which the suit has to be conducted or concluded. For that, the Court is only bound by the Civil Procedure Code and other relevant statutory provisions. That means when a settlement is arrived at, and the Court is satisfied that a decree can be passed, the Court is bound to pass a decree.- Hon’ble Kerala High Court in O.P. (C) No. 3131 of 2016

2.      The Courts cannot dismiss all the applications for amendment considering the question of limitation. In the facts and circumstances of the cases, in certain cases, question of limitation can be decided when amendment is sought for can be decided based on the facts and circumstances of the case and evidence let in by the parties. When any pre-trial amendment is sought for, a party seeking amendment must be given an opportunity to let in evidence to prove that amendment sought for is not barred by limitation and Doctrine of relation back applies to the facts of the case.- Madras High Court in C.R.P. PD Nos. 1599 and 1600 of 2017

Legal updates - 10/07/2017

1.      Where a question as to the admissibility of a document (which contains arbitration clause) is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Question as to insufficiency of stamp duty in view of Section 16 of the Arbitration and Conciliation Act cannot be left to be decided by the Arbitrator. Therefore, Section 11 Application is liable to be dismissed with liberty however to the applicant to file a fresh application for appointment of Arbitrator as and when it makes payment of stamp duty payable as per law.- Rajasthan High Court in S.B. Arbitration Application No. 30 of 2014

2.      TNEB, which is engaged in hazardous or inherently dangerous activity, more particularly, in generation of electricity, is bound to take all the safety measures to prevent any untoward incident. Even assuming that the negligence was on the part of the deceased at the relevant point of time, it is well-settled that act of stranger is exception to Rule of Strict Liability. Even assuming that the deceased, while working in the roof top of the house was carrying some articles with him and the same negligently touched the Electrical line and thereby caused accident, TNEB alone is responsible for such act as it is their duty to prevent such accident by taking safety measures.- Madras High Court in A.S. No. 1050 of 2012.

Legal updates - 06/07/2017

1.      Where a Court passes an order for any interim measure under Section 9(1) of the Arbitration and Conciliation Act, 1996 before commencement of the arbitral proceedings, the arbitral proceedings shall be commenced within the period stated in the sub-section. Commencement of the arbitral proceedings within the period stated in Section 9(2) of the Act is made mandatory by Parliament. Hence, if the arbitral proceedings in respect of the dispute are not commenced within the period stated in Section 9(2) of the Act, the order granting any interim measure under Section 9(1) of the Act shall automatically stand vacated on the expiry of the said period. Though this is not expressly stated in the sub-section, it is clearly implied in the purpose of the mandate of the sub-section.- Karnataka High Court in M.F.A.NO.1440/2014.

2.      An application under Section 33 of the Arbitration and Conciliation Act praying to correct certain mistakes in the award could be entertained by an Arbitrator. Even if the award is not challenged under Section 34, any application for correction of the award under Section 33 is maintainable.- Madhya Pradesh High Court (Jabalpur Bench) in W.P. Nos. 6230 and 6231/2017

Daily legal updates - 05/07/2017

1)     Borrower(s) having secured loan from the Bank are bound to inform the change of address to the Bank so as to enable the Bank to proceed further. Borrower(s) having not intimated about the change of address to the Bank for the reasons best known to them cannot later complain that Bank has committed a fraud by not causing notice / summons at the correct address. Madras High Court in C.R.P.(NPD) (MD) No.1228 of 2017.

2)     Mere breach of contract cannot bring criminal cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Therefore, it is the intention which is the gist of the offence. Once the complainant himself admits that the contract was partly performed, it cannot be inferred from any angle that the accused had dishonest intention right from the beginning.- Patna High Court in Cr. Misc. No. 30357 of 2013

Legal Updates - Precedents

1. Statutory Body / Government Corporations cannot claim benefit of Article 112 of the Limitation Act, 1963 - Perumbavoor Municipality Vs Asst. Engineer, Kerala State Eletricty Board - W.P. (C) No. 17300 / 2013 - Kerala High Court

2. Company Court has no jurisdiction to deal with the issues arising out of the action of the secured creditor under Section 13 of the SARFAESI Act, 2002 - Indian Bank Vs Sub- Registrar, Karnataka - W.A. No. 1420 / 2013 - Bombay High Court 

3. Draft memorandum of understanding forwarded and accepted will not result in a concluded contract - Institute of Continuing Education, Research and Training & another Vs State of Jharkhand - W.P. (C) No. 985 / 2014 - Jharkhand High Court 

4. The concept of reverse mortgage is one which furthers the cause of senior citizens and helps them to tide over financial crisis during the fag end of his/her life - M.K.Ragini Vs State Bank of Travancore - W.P.(C).No.25008 of 2014 (A) – Kerala High Court

Judicial Precedents

Administrative Law - Preponderance of probability sufficient in departmental proceedings

The Hon'ble Madras High Court in Thiru N.Jayakumar Vs The Hon'ble Chief Judicial Magistrate, Cuddalore , wherein, the Appellant was removed from services for coming to office in a drunken condition, held that charges need not be proved beyond reasonable doubt. Preponderance of probability sufficient in departmental proceedings.