Legal Reference Library

The Delhi High Court, in the case of VK Bhatnagar vs Canara Bank and Anr, has directed the bank to compensate the petitioner for the trauma and humiliation caused due to wrongful attachment of his property because of the bank’s negligence arising due to mistaken identity. The petition was filed by VK Bhatnagar, whose property was wrongly attached by Canara Bank for default of payment by a debtor of the same name. The petitioner faced extreme humiliation since not only was the warrant of attachment affixed to his property, but loudspeakers too proclaimed the same. The petitioner then filed objections before the Debt Recovery Tribunal, stating that he had undertaken no financial transactions with Canara Bank and also disclosing his parentage. He also showed that he was a resident of Delhi where as the debtor is a resident of Lucknow. However, no reply was offered by Canara Bank in response to the objections filed. Harassed, the petitioner filed a writ petition against the ban...

In SAVYASACHI K. SAHAI vs Union Of India, the Delhi High Court has dismissed a review petition filed by four applicants who claimed to be the sons of previous Mutawalli or caretakers of the dargah at Amir Khusro Park and, therefore, asserted their right to some construction inside the tikona graveyard park, also known as Amir Khusro park. Mohd Shakeel, Mohd Allauddin and Mohd Mehmood (claiming to be the three sons of the late Mohd Yusuf and the late Mohammed Yunus) and Mohd Nasir (son of Mohd Hakmuddin) had sought review of an order passed by the high court on May 16. Under the said order, the court had observed that the petitioners did not have sufficient documentary evidence to prove their claim and sought a status report from the authorities concerned. What the court said After examining all the submissions and evidence on record, a division bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar held that presumption of possession over an open land always is ...

The National Consumer Disputes Redressal Commission (NCDRC) in SHEO PRAKASH GUPTA & ANR vs KANPUR DEVELOPMENT AUTHORITY, said that it is common parlance that, in the builder- buyer agreements the terms are framed as favorable and suitable to the builders/ service providers. In our view, these are unconscionable contracts. The builder exercise his right to charge penalty or interest at 18-24% on the delayed payment of installments. Thus, in our view, in the interest of natural justice the consumers at large deserve to receive same interest from opposite parties in cases of fault or deficiency. The commission made this observation while dealing with an appeal against the state commission dismissing their complaints against the builders. The complaint was regarding unfair trade practice and deficiency in service by the Kanpur Development Authority in keeping the huge amount for more than a year and refunding it without interest. Article referred: http://www.livelaw.in/builde...

In N.K. Bhasin vs Union of India, the division bench of the Allahabad High Court upheld the constitutional validity of provisions of Finance Act, 1994 imposing Service Tax on rented immovable property. While dismissing a bunch of writ petitions, the Court also confirmed the vires of connected circulars passed by the Ministry of Finance. The petitioners in the instant case, approached High Court challenging the constitutionality of Sections 75(A)(6)(h) and 77 of Finance Act, 2010 and Sections 65(90)(a) and 65(105)(zzzz) read with Section 66 of Finance Act, 1994 as amended by Finance Act, 2007 and Finance Act, 2010. They urged that the provisions are illegal, arbitrary and lacking legislative competence infringing Articles 14, 246 and 265 of Constitution of India. They further impugned the validity of circulars dated 04.01.2008 and 22.05.2007. The bench noticed that a similar issue was raised before various High Courts wherein these Courts upheld the validity of the above provision...

In Chandi Prasad Vs. State, the Himachal Pradesh High Court while deciding on Adverse Possession said that - It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. It is equally settled that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. In...

In Prerna Dewan Vs. IREO Fiveriver, the Opposite Party has stated that possession of the plot, in question, could not be offered to the complainant, within the period stipulated in the Agreement for want of development work at the site, on account of the reasons beyond its control i.e. on account of force majeure circumstances like delay in sanction of layout plans by the Competent Authorities; delay in grant of NOC from the Irrigation Department; delay in clearance and delayed grant of licence for additional land measuring 10.594 acres plus 18.343 acres, by the Competent Authorities, as the area was situated in a squatted small pockets; delay in approvals for environment clearance by the Competent Authorities; and also stay on construction on the land, in question, granted by the Hon’ble Supreme Court of India. The State Consumer Dispute Resolution Commission rejected the above contention by stating It was the bounden duty of the opposite party, to get approved the final la...

In Majestic Properties Vs. Arun Dhandhania, the National Consumer Disputes Redressal Commission has held that It is the duty of the complainants to prove that the booking done by them was not for a commercial purpose and that, they fall within the definition of ‘Consumer’ under the Act. The facts involved in these cases show that the main person in the whole episode is Arun Dhandhania who booked one residential flat for himself, one for his son and three other flats in the names of various companies, which were operating through him only, as Director. Although booking in three cases has been made in the name of three different companies, it has not been made clear anywhere in the evidence produced by the complainants that the said property was required for residential purpose in any manner. During arguments, it was stated that the residential property was required for the purpose of housing various directors/employees from time to time. It has nowhere been stated, however, that the p...

In Rajasthan Wakf Board Vs. Devki Nandan Pathak, the Supreme Court held that Once the property is declared to be a Wakf property, a fortiori, whether the sale of such property is made by a person not connected with the affairs of the Wakf or by a person dealing with the affairs of the Wakf, the same becomes void by virtue of Section 51 of the Act unless it is proved that it was made after obtaining prior permission of the Board as provided under the Act.

The Kerala High Court, in the case of Lakshmi vs State of Kerala and Ors, has held that mere pendency of litigation does not ispo facto affect the person’s right to alienate the property. The court relied on Section 52 of the Transfer of Property Act to hold that a sale which takes place in the face of a pending litigation would at its best amount to a lis pendens sale. Justice Dama Sheshadri Naidu noted that in such a case, the sale would give the purchaser a title which the seller has at that point of time and the purchaser’s right to property would be subject to the outcome of the litigation. The court further noted that in such transactions, the maxim caveat emptor holds the field and Section 52 of the Transfer of Property Act protects the interests of the buyer in such situations. The court also reiterated the principle that the right to alienate the property is a vital right attached to the enjoyment of the property. Further, a holistic interpretation of Article 300-A of ...

The Supreme Court, in Venu vs Ponnusamy Reddiar, has held that there is no limitation period for the execution of preliminary decree for partition. In 1989, an application for execution of the decree was filed after 30 years of the preliminary decree for partition, which was passed in 1959. It prayed for the appointment of a court commissioner so as to carry out the preliminary decree. The  high court had rejected the contention that since the application had been filed for the appointment of court commissioner, it ought to governed by provisions of Article 137 of the Limitation Act 1963. A bench comprising Justice Arun Mishra and Justice Amitava Roy observed that a preliminary decree for partition crystallises the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings and till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partit...

When the main question involved in the suit is whether the suit land is a Wakf property or not, it can be decided only by the Wakf Tribunal, and not by the civil court, the Supreme Court has held in Rajasthan Wakf Board vs Devki Nandan Pathak. A bench comprising Justice AM Sapre and Justice RK Agrawal also held that matters falling under Sections 51 and 52 of the Wakf Act are also required to be decided by the tribunal and not by the civil court. The court has now remanded the matter to the high court for deciding the revision afresh on merits. In the instant case, the Wakf Tribunal, on a plea by Wakf Board, had granted permanent injunction in respect of the property in question and declared the sale deed executed in favour of the other party ‘null and void’. The high court set aside this order holding that the tribunal has no jurisdiction in the matter and on the ground that since no order was made by any authority under the said Act, the applicant before the Wakf Tribunal could n...

The SUPREME COURT in Chilamkurti Bala Subrahmanyam VS Samanthapudi Vijaya Lakshmi & Anr, while referring to the judgment in Saheb Khan vs. Mohd. Yousufuddin & Ors., held that it is not the material irregularity that alone is sufficient for setting aside of the sale. The applicant has to go further and establish to the satisfaction of the Court that the material irregularity or fraud, as the case may be, has resulted in causing substantial injury to the applicant in conducting the sale. It is only then the sale so conducted could be set aside under Order 21 Rule 90(2) of the Code.

In the above issue was once again discussed and the decision of the Hon'ble Supreme Court in Chunchun Jha vs. Ebadat Ali and Another, AIR 1954 SC 345 was upheld. In Chunchun Jha’s case (supra), this Court examined this very question as to what constitutes “a mortgage by conditional sale or a sale out and out with a condition of repurchase“. 23) The learned Judge, Vivian Bose J., in his distinctive style of writing speaking for the Bench posed the question as under: “This is a plaintiff’s appeal in a suit for redemption of what the plaintiff calls a mortgage dated 15-4-1930. The only question for determination is whether this is a mortgage by conditional sale or a sale out and out with a condition of repurchase. If the former the plaintiff succeeds. If the latter he is out of Court.” 24) His Lordship then examined the question in the context of several leading English authorities on the subject and Section 58(c) of the T.P. Act and laid down the following test for deciding the...

The Supreme Court, in Pawan Kumar Gupta vs BR Gupta, has held that condonation of delay in payment of rents can take place only when defaulting tenant so pleads with justifiable reasons which would show that he was prevented from compliance by circumstances beyond his control. In the instant case, in 2005, an order was passed by the rent controller directing the tenant to pay or deposit the rent with effect from 1.10.2004, and continue to pay the same at the aforesaid rate month by month. The tenant did not comply with the order. Observing that the tenant failed to provide any explanation regarding delay in depositing of rent month by month in terms of the order, the rent controller held that he was not entitled to the benefit under Section 14(2) of the Act and an eviction order was passed. The high court upheld this order refusing to condone the delay in payment of rents. An apex court bench comprising Justice J Chelameswar and Justice S Abdul Nazeer observed that the tenant was...

While relying upon the Supreme Court decision in State of Karnataka v. Shreyas Papers Pvt. Ltd., 2006 (1) SCC 615 the Division Bench comprising of S. C. Dharmadhikari, B.P. Colabawalla, JJ. held that no charge can be enforced against a property legitimately purchased for consideration by the transferee if he has had no notice, either actual or constructive, of the charge. In the instant case, when a defaulter company could not repay the loan taken from the respondent bank, the bank took physical possession of a property belonging to the defaulter company under Section 13(4) of the SARFAESI Act and invited offers for sale of the said property. On 1st September, 2010 the petitioners placed their bid for purchasing the property at Rs. 11,00,29,000. Thereafter, a Deed of Conveyance was registered in favour of the petitioners with the Registrar of Assurances on 10th March, 2011. At the time of registration, the petitioners perused the 7/12 extract relating to the property and learnt that t...

Sri Srinivasaiah Vs. H.R. Channabasappa - Supreme Court The original plaintiff – M.N. Channabasappa was the owner of the suit land (described in detail in schedule to the plaint). He fell in need of money in 1969. He, therefore, approached the original defendant No.1 – B.M. Narayana Shetty and requested him to give some money to overcome the financial crisis faced by him during that time. Defendant No.1 agreed and accordingly gave Rs.1500/- to the plaintiff by way of loan. In order to secure the repayment, the plaintiff on request made by defendant No.1 executed a document on 28.07.1969 (Ex-P-1) in favour of defendant No.1 and got the same registered with the sub-Registrar, Kanakpura. Defendant No.1 was also placed in possession of the suit property pursuant to the document. On 30.06.1987, the plaintiff sent a legal notice to defendant No.1 and offered to repay Rs.1500/- to him with a further request to redeem the suit land in his favour in terms of the conditions of Ex. P-1. T...

Setting aside a Kerala High Court order, the Supreme Court, in Valiyavalappil Sarojakshan vs Sumalsankar Gaikevada, has held that merely because a landlord has taken possession on the basis of an order for eviction granted on one ground, that does not mean that the surviving grounds have become non-est. The landlord had approached the Rent Control Court seeking eviction of tenant under Section 11(4) (iii) and Section 11(4) (iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court allowed the petitions under Sections 11(4) (iv) on the ground of requirement for demolition and reconstruction, while declining eviction on the ground of tenant’s acquisition of alternate accommodation. The landlord, aggrieved by the Rent Control Court declining eviction under Section 11(4) (iii), approached the appellate authority. However, he also took possession of the buildings on the strength of order passed by the Rent Control Court on the other ground. Later, ...

Setting aside a judgment of Bombay High Court which had held that it is not necessary for a ‘defendant’ to first admit the ownership of the ‘plaintiff’ before raising a plea of adverse possession, the Supreme Court, in Dagadabai vs Abbas, has held that a person claiming adverse possession must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner. A bench comprising Justice RK Agrawal and Justice AM Sapre also observed that the true owner has to be made a party to the suit to enable the court to decide the plea of adverse possession between the two rival claimants. In the instant case, the defendant had not admitted the plaintiff’s ownership over the suit land, but the high court had observed that such admission is not necessary. But the apex court, on appeal, observed that the issue of adverse possession could not have been tried successfully at the instance of the defendant as against the plaintiff. The court also observed ...

An imprisoned developer wanted to sell property to the willing buyers by executing a registered sale deed. Several prayers were made before the jail authority regarding the same but it did not yield any result. The prisoner’s wife then approached the Calcutta High Court. On hearing the matter, Justice Joymalya Bagchi maintained – “Right to carry on trade and profession including right to convey property in course of such business is an essential fundamental right enshrined under Article 19(i)(g) of the Constitution of India and the same do not stand eclipsed by the continuing incarceration of a prisoner. Hence, I am of the opinion that incarceration of the husband of the petitioner shall not disentitle him from executing sale deeds to convey flats in favour of intending purchasers in accordance with law.” The judge further interpreted prison as being the temporary home of the inmate- “When a prisoner is incarcerated in a correctional home, it is to be deemed that the priso...

The Supreme Court, in Bhagirath Agarwal vs M/s Simplex Concrete & Piles (I) Pvt. Ltd, has held that once the court permits the tenant to pay arrears of rent in installments, there is no discretion available with the court to deny interest of the same to the landlord. A bench comprising Justice Kurian Joseph and Justice R Banumathi set aside the order of the trial court that denied interest for the arrears of rent payable to the landlord and allowed the tenants to pay the arrears in installments. Referring to Section 17(2A) of the West Bengal Premises Tenancy Act, 1956, the bench said whenever payment of rent, including arrears, is permitted to be paid in installments, the statute contemplates that the beneficiary shall be granted interest This is irrespective of the justification or explanation, if any, available for the non-payment, the bench added. The court also observed that though under Section 34, the said amount can be set off, in case the landlord has refused to provi...