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Supreme Court Weekly Digest April 1 - 5, 2019

Banking Regulation Act, 1949 - Ss. 35AA & 35AB - Constitutional Validity of - Circular issued on 12.02.2018, by Reserve Bank of India (RBI) - Revised framework for resolution of stressed assets - the impugned circular is ultra vires Section 35AA of the Banking Regulation Act. Rohinton Fali Nariman & Vineet Saran, JJ. Dharani Sugars and Chemicals Ltd. v. Union of India, T.C. (C) No. 66 of 2018 02-04-2019

Civil Law - The appellant has filed a misconceived suit and claimed interfere on the suit land and nor had any right to construct any road or any type of construction without following a due process of law on the suit land. First, the appellant was required to prove his ownership over the suit land qua the respondent; Second, he was required to prove that the respondent has either entered on the suit land or is trying to enter upon the suit land with a view to construct the road on his land or is intending to make some construction without following the due process of law in acquiring the suit land and paying adequate compensation to the appellant for the suit land. The appellant, however, did not come to the Court for claiming the aforementioned reliefs and nor he proved the aforementioned facts and instead claimed improper reliefs as mentioned above. Abhay Manohar Sapre & Dinesh Maheshwari, JJ.  Anant Shankar Bhave v. Kalyan Dombivli Municipal Corporation, C.A. No. 3368 of 2019 02-04-2019

Civil Procedure Code, 1908 - O. 39 Rr. 1 r/w. S. 151 - The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction. Uday Umesh Lalit & Hemant Gupta, JJ. Hammad Ahmed v. Abdul Majeed, C.A. No. 3382 of 2019 03-04-2019

Concurrent Findings - When the two Courts below have recorded concurrent findings of fact against the plaintiffs, which are based on appreciation of facts and evidence, such findings being concurrent in nature are binding on the High Court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be wholly perverse, a case for interference may call for by the High Court in its second appellate jurisdiction. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. T. Ramalingeswara Rao v. N. Madhava Rao, C.A. No. 3408 of 2019 05-04-2019

Constitution of India - Art. 254 - Money-Lenders Act, 1940 (Bengal) - S. 37A - Transfer of Property Act, 1882 - S. 58(c) - Mortgage by Conditional Sale - Inconsistency between laws made by Parliament and laws made by the Legislatures of States - Held, despite the inconsistency, Section 37(A) of the State Act will prevail in the State - the provisions of 37(A) is traceable to the Entry ‘Transfer of Property’ in the Concurrent List and that Article 254(2) saves the provision. Ashok Bhushan & K.M. Joseph, JJ. Atul Chandra Das v. Rabindra Nath Bhattacharya, C.A. No. 8793 - 8794 of 2013 04-04-2019



Consumer Protection Act, 1986 - Ss. 2 (r) & 23 - ‘unfair trade practices’ - Incorporation of one-sided clauses in an agreement constitutes an unfair trade practice. Uday Umesh Lalit & Indu Malhotra, JJ. Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghavan, C.A. No. 12238 of 2018 02-04-2019

Criminal Procedure Code, 1973 - S. 197 - Sanction - In order to attract the rigor of Section 197 of the Cr.P.C., it is necessary that the offence alleged against a Government Officer must have some nexus or/and relation with the discharge of his official duties as a Government Officer. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Devendra Prasad Singh v. State of Bihar, Crl.A. No. 579 of 2019 02-04-2019

Criminal Procedure Code, 1973 - S. 482 - The High Court after recalling the orders should have fixed the three criminal original petitions for their final hearing on merits. Instead of doing that, the High Court, on the one hand, restored the cases and, on the other hand, dismissed them also. This approach of the High Court was not legal and hence to that extent, the impugned order of the High Court deserves to be set aside. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. S. Ramesh v. State Rep. By Inspector of Police, Crl.A. No. 583 of 2019 02-04-2019

Criminal Procedure Code, 1973 - S. 482 - Quashing of Criminal Complaint - Contradictions in the statement of the complainant - the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements - this could be done only in the trial while deciding the issues on the merits or / and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Devendra Prasad Singh v. State of Bihar, Crl.A. No. 579 of 2019 02-04-2019

Criminal Procedure Code, 1973 - S. 482 - Penal Code, 1860 - Ss. 498A, 323, 504, 506 - Dowry Prohibition Act, 1961 - Ss. 3 & 4 - Quashing of FIR - Whether the High Court was justified in rejecting the application filed by the appellants under Section 482 of the Cr.P.C. - Held, there does not appear to be any justification or / and prima facie case to proceed against the appellants either jointly or severally for commission of the offences alleged against them in the complaint. Indeed, the facts stated against the appellants in the complaint do not constitute any case as alleged against any of them. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Tabrez Khan @ Guddu v. State of Uttar Pradesh, Crl.A. No. 602 of 2019 05-04-2019



Custody of Child - Boarding School - It is natural, a boy of that age who has studied earlier in the school, willing to continue in the same school as much as he is acclimatised with the environment of such school where he has started his studies from Ist standard onwards - When the boy is not inclined to study in the Boarding House, in the interest of the welfare of the child, he cannot be compelled to admit in the Boarding House. R. Banumathi & R. Subhash Reddy, JJ. Nutan Gautam v. Prakash Gautam, C.A. No. 3409 of 2019 05-04-2019



Dowry Prohibition Act, 1961 - Ss. 3 & 4 - Quashing of FIR - Whether the High Court was justified in rejecting the application filed by the appellants under Section 482 of the Cr.P.C. - Held, there does not appear to be any justification or / and prima facie case to proceed against the appellants either jointly or severally for commission of the offences alleged against them in the complaint. Indeed, the facts stated against the appellants in the complaint do not constitute any case as alleged against any of them. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Tabrez Khan @ Guddu v. State of Uttar Pradesh, Crl.A. No. 602 of 2019 05-04-2019

Evidence Law - In the absence of any existing enmity between the accused and the witnesses there exists no ground to question the veracity of the witnesses or to raise a ground of false implication. N.V. Ramana, Mohan M. Shantanagoudar & Indira Banerjee, JJ. Manoj Kumar v. State of Uttarakhand, Crl.A. No. 2122 of 2010 05-04-2019

Judicial Order - Every judicial or / and quasi­judicial order passed by the Court / Tribunal / Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate / revisionary Court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the Court / Tribunal / Authority for reaching to such conclusion. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. State of Odisha v. Chandra Nandi, C.A. No. 10690 of 2017 01-04-2019

Hindu Law - Nature of the Interest of Reversioners - Who are the reversioners - The reversioners are the heirs of the last full owner, who would be entitled to succeed to the estate of such owner on the death of a widow or other limited heir, if they be then living. Ashok Bhushan & K.M. Joseph, JJ. Gopalakrishna (d) By Lrs. v. Narayanagowda (dead) By Lrs., C.A. No. 1332 of 2008 03-04-2019



Insolvency and Bankruptcy Code, 2016 - Banking Regulation Act, 1949 - Ss. 35AA & 35AB - Constitutional Validity of - the RBI can only direct banking institutions to move under the Insolvency Code if two conditions precedent are specified, namely, (i) that there is a Central Government authorisation to do so; and (ii) that it should be in respect of specific defaults. The Section, therefore, by necessary implication, prohibits this power from being exercised in any manner other than the manner set out in Section 35AA. Rohinton Fali Nariman & Vineet Saran, JJ. Dharani Sugars and Chemicals Ltd. v. Union of India, T.C. (C) No. 66 of 2018 02-04-2019

Interpretation of Document - Principle of - One line cannot be taken out of context. It is a cumulative reading of entire document which would lead to one conclusion or the other. Uday Umesh Lalit & Hemant Gupta, JJ. Hammad Ahmed v. Abdul Majeed, C.A. No. 3382 of 2019 03-04-2019

Limitation Act, 1963 - S. 31 - Hindu Law Women’s Right to Properties Act, 1934 (Mysore Act of 1933) - S. 10 (2) (g) - “Stridhana” - Position of a Hindu Widow prior to Hindu Succession Act and the State Act - Provisions as to barred or pending suits. Ashok Bhushan & K.M. Joseph, JJ. Gopalakrishna (d) By Lrs. v. Narayanagowda (dead) By Lrs., C.A. No. 1332 of 2008 03-04-2019

Medical Council Act, 1956 - S. 11(2) - direction to conduct an inspection within a period of one week ought not to have been passed by the High Court as the surprise element of the inspection would not be there. L. Nageswara Rao & M.R. Shah, JJ. Board of Governors in Supersession of Medical Council of India v. National Institute of Medical Sciences and Research, C.A. No. 3340 of 2019 01-04-2019

Partnership Act, 1932 - Ss. 20 & 69 (3) - “Unregistered Partnership" - Civil Judge held that the application filed by the plaintiff is maintainable - defendants felt aggrieved and filed writ petition - the High Court dismissed the writ petition and upheld the order of the Civil Judge - Whether the High Court was justified in dismissing the appellants’ writ petition - Held, the High Court did not decide the issue, which was the subject matter of the writ petition, keeping in view the law laid down by this Court in the case of Krishna Motor Service by its Partners v. H.B. Vittala Kamath, 1996 (10) SCC 88 - the High Court should have noticed the aforementioned decision and decided the question accordingly in the light of law laid down therein. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Bhagwan Das Goel v. Pyare Kishan Agarwal, C.A. No. 3399 of 2019 04-04-2019

Payment of Gratuity Act, 1972 - The Act is applicable to the Municipalities. Mohan M. Shantanagoudar & Hemant Gupta, JJ. Nagar Ayukt Nagar Nigam v. Mujibullah Khan, C.A. No. 2628 of 2017 02-04-2019



Penal Code, 1860 - Ss. 120B, 121 & 121A - Unlawful Activities (Prevention) Act, 1967 - Ss. 13, 16, 17, 18, 20, 38, 39 & 40 - Application for Bail. A.M. Khanwilkar & Ajay Rastogi, JJ. National Investigation Agency v. Zahoor Ahmad Shah Watali, Crl.A. No. 578 of 2019 02-04-2019

Penal Code, 1860 - S. 302 - Political Enmity - In view of sudden fight without any premeditation, the conviction of the appellant for an offence under Section 302 is not made out. The cause of death of the deceased is knife blow on the chest of the deceased-S. 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 S 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, IPC. D.Y. Chandrachud & Hemant Gupta, JJ. Mani v. State of Kerala, Crl.A. No. 540 of 2019 01-04-2019

Penal Code, 1860 - Ss. 409, 467 & 420 - Difference between initiation of the criminal proceedings by the department vis-a-vis a criminal case lodged by the police - Held, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious. L. Nageswara Rao & M.R. Shah, JJ. Raj Narain v. Union of India, C.A. No. 3339 of 2019 01-04-2019

Penal Code, 1860 - Ss. 498A, 323, 504, 506 - Dowry Prohibition Act, 1961 - Ss. 3 & 4 - Quashing of FIR - Whether the High Court was justified in rejecting the application filed by the appellants under Section 482 of the Cr.P.C. - Held, there does not appear to be any justification or / and prima facie case to proceed against the appellants either jointly or severally for commission of the offences alleged against them in the complaint. Indeed, the facts stated against the appellants in the complaint do not constitute any case as alleged against any of them. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Tabrez Khan @ Guddu v. State of Uttar Pradesh, Crl.A. No. 602 of 2019 05-04-2019



Possession - Co­-sharer - the possession of one co-­sharer is possession of all co-­sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. T. Ramalingeswara Rao v. N. Madhava Rao, C.A. No. 3408 of 2019 05-04-2019

Property Law - Mutation of Property - the mutation of a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation has been ordered, to pay the land revenue. At the same time, the effect of a declaratory decree to restore the property alienated to the estate of the alienor and until and unless the alienees are able to convince the court that they have no subsisting interest in the property, the heirs of the alienees would be entitled to the benefits of the property as per the law of succession. A.M. Khanwilkar & Ajay Rastogi, JJ. Ajit Kaur @ Surjit Kaur v. Darshan Singh, C.A. No. 226 of 2010 04-04-2019

Remand - Appellant has filed various documents in support of their appeal for the first time in this appeal - the respective Courts rendered both the decisions without examining these documents - these documents are material for disposal of the writ petition - It is for this reason the matter has to be remitted to the writ court for deciding the writ petition afresh on merits. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Tuticorin Port Democratic Staff Union v. Tuticorin Port Trust, C.A. No. 2289 of 2010 01-04-2019

Rent Control and Eviction - Suit for eviction and recovery of damages and mesne profit - the High Court has vacated the stay granted in favour of the tenant on the ground of non-compliance of the conditional order passed by the High Court - Appeal is allowed with the direction. R. Banumathi & R. Subhash Reddy, JJ. Laxmi Chaudhary v. Sahib Singh Chaudhary, C.A. No. 3385 of 2019 03-04-2019

Service Law - In the absence of any express provision in the rules, no promotion or seniority can be granted from a retrospective date when the employee has not been born in the cadre. Ashok Bhushan & K.M. Joseph, JJ. Vinod Verma v. Union of India, C.A. No. 14967 of 2017 02-04-2019



Service Law - Mere existence of vacancies or empanelment does not create any indefeasible right to appointment. Arun Mishra & Navin Sinha, JJ. Kerala State Road Transport Corporation v. Akhilesh V.S., C.A. No. 3346 of 2019 01-04-2019

Transfer of Property Act, 1882 - S. 58(c) - Mortgage by Conditional Sale - Inconsistency between laws made by Parliament and laws made by the Legislatures of States - Held, despite the inconsistency, Section 37(A) of the State Act will prevail in the State - the provisions of 37(A) is traceable to the Entry ‘Transfer of Property’ in the Concurrent List and that Article 254(2) saves the provision. Ashok Bhushan & K.M. Joseph, JJ. Atul Chandra Das v. Rabindra Nath Bhattacharya, C.A. No. 8793 - 8794 of 2013 04-04-2019

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