DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P, INDIA

TOPIC

Hon’ble Justice Adarsh Kumar Goel’s Case Analysis on Usage of Tecnology in Matrimonial
Matters

SUBJECT

Interpretation of Statute

NAME OF THE FACULTY

R. Bharat Kumar

NAME OF THE STUDENT

N. Subrahmanya Rupesh

2017057

VI Semester
 ACKNOWLEDGEMENT

I have taken efforts in this project however it would not have been possible without the kind support
and help of the many individuals and Organizations. I would like to extend my sincere thanks to all
of them.

I am highly indebted to R. Bharat Kumar for his guidance and constant supervision as well as the
providing necessary information regarding the project and also for their support in completing the
project.

I would like to express my gratitude to wards my parents and members of organisation for their
kind cooperation and encouragement which help me in completion of this project. My thanks and
appreciation also goes to my colleague in developing the project and people who have willingly
helped me out with their abilities.
 ABSTRACT

Hon’ble Justice Adarsh Kumar Goel’s Case Analysis on Usage of Tecnology in Matrimonial
Matters

Justice Adarsh Kumar Goel had done his B.A. (Hons.) LL.B. from the Punjab University,
later he was enrolled as an advocate with the bar council of Punjab and Haryana in the year of 1974.
Justice Goel was appointed as Executive Chairman, Haryana State Legal Services Authority on 17
May 2005. then after he was acting Cheif Justice of Gauhati High Court from 2011 and sworn in as
Cheif Justice of Gauhati High Court in the end of 2011. Later Goel was elevated as Judge of
Supreme Court in 2014. Now he is the Chairperson of the National Green Tribunal, New Delhi.

The abstract for my given topic has been taken on the matter of using convinent method of
using the Technology for the matter of making the procedure easy for the matter of matrimonial
cases. The present case Krishna Veni Nigam v. Harish Nigam, where the case has been dealt by
Hon’ble Justice Adarsh Kumar Goel where the issue here was regarding the inconvenience being
faced by the parties for determining the place of litigation, so in this case it was said that the usage
of tools like video conferencing should be used in matrimonial cases where the place of
adjudication is not convenient to either of the parties. The bench had further said that it may be
appropriate that available technology of video conferencing is used where both the parties have
equal difficulty and there is no place which is convenient to both the parties.
CASE NUMBER-1

CASE NAME: Pradyuman Bisht v. Union of India & Ors1

CITATION: 2017 SCC ONLINE SC 1358

FACTS:
This case was regarding installation of CCTV cameras inside the District and town court halls and it
even talks about violation of any privacy of judges and parties appearing in the courts.

ISSUES:
Whether such CCTV footage shall be made available to the public under the RTI act ?

REASONING:
Judges have pointed out and reasoned that there is acknowledged utility of CCTV cameras in
recording contemporary events which may be useful for any monitoring authority. By way referring
to the orders of this Court directing CCTV cameras to be installed in all Police Stations and prisons
in Dilip K. Basu Vs. State of West Bengal & Ors . 2 Some of the High Courts have made reports
suggested that audio recording should also be permitted modifying the earlier direction of recording
without audio. They have expressed an opinion that installation of CCTV cameras will advance the
interest of Justice. Learned ASG and learned amicus curiae point out that as per Article 235 of the
Constitution of India, the High Court is to exercise power of superintendence over the subordinate
Courts. There are untoward instances which may take place in lower Courts and it may be useful if
proceedings in Court are captured on the CCTV camera by audio as well as video. This can assist
the High Courts in exercising the constitutional power under Article 235 of the Constitution of
India. We are satisfied, after considering the submissions and perusing the studies which have been
brought to our notice that installation of CCTV Cameras will be in the interest of justice. Any
apprehension to the contrary needs to be repelled. We have already incorporated safeguards of
footage of recording not being given for any purpose other than the purpose for which the High
Court considers it appropriate. We have also directed that the R.T.I provisions will not apply to
CCTV camera recordings in our Order dated 28.03.2017.

1 . 2017 SCC ONLINE SC 1358

2 . 2015 (8) SCC 744
CONCLUSION:
The court has concluded that installation of CCTV Cameras would be in the interest of justice. Any
apprehension to the contrary needs to be repelled and this court already incorporated safeguards of
footage of recording not being given for any purpose other than the purpose for which HC considers
it appropriate and it even found from the report that there was variance about the cost of installation
of CCTV cameras and no uniform technical specifications was prescribed. This court directs UOI in
consultation with E-Committee of this court to lay down technical specifications and other
modelities, including price range and sources of supply for installation of CCTV cameras in Courts
within a month.
Case Number-2

CASE NAME: Krishna Veni Nigam v. Harish Nigam3

CITATION: AIR 2017 SC 1345

FACTS:
The facts of the Case is that the petitioner wife is that she was married to the respondent husband in
the year 2008 at Kukatpally, Hyderabad. She was blessed with a girl child in 2009. While living in
her in-law’s house at Jabalpur, she was ill-treated. She was subjected to mental and physical torture.
She suffered injury on her spinal cord. She left the matrimonial home in 2012. The respondent-
husband filed application for restitution of conjugal rights which was later on got dismissed as
withdrawn. Thereafter, a divorce petition has been filed at Jabalpur while the petitioner has filed a
domestic violence case at Hyderabad. Since the petitioner-wife, along with her minor daughter, is
living with her parents, she cannot undertake long journey and contest the proceedings at Jabalpur
by neglecting her minor child. She also apprehends threat to her security in attending proceedings at
Jabalpur. On 7th January, 2015, notice was issued and stay of proceedings was granted. The matter
has been pending in this Court for more than two years.
Issues :
1. Whether this petition could be solely decided basing upon the section 19 of Hindu Marriage
Act? Whether this can be avoide?
2. Whether video conferencing option made available to the parties under the Matrimonial
dispute ?
Reasoning:
The court has reasoned that “One cannot ignore the problem faced by a husband if proceedings are
transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to
contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a
solution acceptable to both the parties. It may be appropriate that available technology of video
conferencing is used where both the parties have equal difficulty and there is no place which is
convenient to both the parties. We understand that in every district in the country video
conferencing is now available. In any case, wherever such facility is available, it ought to be fully
utilized and all the High Court’s ought to issue appropriate administrative instructions to regulate
the use of video conferencing for certain category of cases. Matrimonial cases where one of the
parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the
parties make a request for use of video conference, proceedings may be conducted on video

3. AIR 2017 SC 1345

conferencing, obviating the needs of the party to appear in person. In several cases, this Court has
directed recording of evidence by video conferencing”

Conclusion:
We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a
marriage or arising out of disputes between parties to a marriage, wherever the
defendants/respondents are located outside the jurisdiction of the court, the court where proceedings
are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for
ensuring that summoning of defendant/respondent does not result in denial of justice. Order
incorporating such safeguards may be sent along with the summons. The safeguards can be:
(i) Availability of videoconferencing facility.
(ii) Availability of legal aid service.
(iii) Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.
(iv) E-mail address/phone number, if any, at which litigant from outstation may communicate.

We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in
the order of this Court dated 9-1-2017. However, in the present case since the matter is pending in
this Court for about three years, we are satisfied that the prayer for transfer may be allowed.
Accordingly, we direct that proceedings in Case No. 179A of 2013 under Section 13 of the Act
titled Harish Nagam v. Krishna Veni Nagam pending on the file of IInd Presiding Judge, Family
Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra
Pradesh. If the parties seek mediation, the transferee court may explore the possibility of an
amicable settlement through mediation. It will be open to the transferee court to conduct the
proceedings or record evidence of the witnesses who are unable to appear in court by way of
videoconferencing. Records shall be sent by court where proceedings are pending to the transferee
court forthwith.
Case Number-3
CASE NAME: Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra4
CITATION: (2018) 6 SCC 454
FACTS:

4 . (2018) 6 SCC 454

Based on the registered complaint to Karad City Police Station, In the year 2009 complainant was
working as store keeper in the Govt. Pharmacy College Karad and the complaint was lodged under
prevention of atrocities against SC & ST act. and the investigation was done by Shri Bharat
Tangade, then D.Y.S.P. Karad division Karad in the investigation 1) Satish Balkrushna Bhise, then
Principal Pharmacy College Karad, 2) Kishor Balkrishna Burade, then Professor, Pharmacy College
Karad has been realized as accused in the present crime. Investigation officer collect sufficient
evidence against both the accused, but both the accused are from Govt. Technical Education
department Class 1 Public Servant, so before filing charge sheet against them he wrote the letter to
the senior office of the accused u/s 197 of Cr.P.C in order to take the permission at that time Mr.
Subhash Kashinath Mahajan was working as incharge director of the office. Today also he is
working as same post. Mr. Mahajan does not belongs to S.C. & S.T. but he knew that I belongs to
S.C. and S.T. In fact both the accused involved in crime No. 3122/09 are working on class 1 post
and to file a charge sheet against them the permission has to be taken according to Cr.P.C. Section
197. This fact known to Shri Mahajan and Mr. Mahajan knew that this office did not have such
right to give permission. So Mr. Mahajan send letter to Mumbai Office. Infact to give the required
permission or to refuse the permission is not comes under the jurisdiction of incharge direction,
Technical Education Mumbai. But, Mr. Mahajan misused his powers so that, accused may be
benefited, he took the decision and refused the permission to file the charge sheet against the
accused. So that, investigation officer Shri Bharat Tangade fails to submit the charge sheet against
the both the accused, but he complain to submit ‘C’ summary report.

ISSUES:

Whether this will be just and fair procedure under Article 21 of the Constitution of India or there
can be procedural safeguards so that provisions of Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 are not abused for extraneous considerations?

REASONING:
Accordingly, we direct that in absence of any other independent offence calling for arrest, in respect
of offences under the Atrocities Act, no arrest may be effected, if an accused person is a public
servant, without written permission of the appointing authority and if such a person is not a public
servant, without written permission of the Senior Superintendent of Police of the District. Such
permissions must be granted for recorded reasons which must be served on the person to be arrested
and to the concerned court. As and when a person arrested is produced before the Magistrate, the
Magistrate must apply his mind to the reasons recorded and further detention should be allowed
only if the reasons recorded are found to be valid. To avoid false implication, before FIR is
registered, preliminary enquiry may be made whether the case falls in the parameters of the
Atrocities Act and is not frivolous or motivated.

CONCLUSION:

The court has concluded that “we are of the conclusions that:

i) Proceedings in the present case are clear abuse of process of court and are quashed.

ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no
prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie
mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar
(supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and
Manju Devi (supra);

iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a
public servant can only be after approval of the appointing authority and of a non-public servant
after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for
reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further
detention.

iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP
concerned to find out whether the allegations make out a case under the Atrocities Act and that the
allegations are not frivolous or motivated.

v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as
contempt.”
Case Number-4

CASE NAME: Rajesh Sharma & Ors. vs. State of U.P. & Anr.,5

CITATION: LNIND 2017 SC 351

FACTS:

The complainant alleged that she was married to appellant No.1 on 28th November, 2012. Her
father gave dowry as per his capacity but the appellants were not happy with the extent of the
dowry. They started abusing the complainant. They made a demand of dowry of Rs.3,00,000/- and a
car which the family could not arrange. On 10th November, 2013, appellant No.1 dropped the
complainant at her matrimonial home. She was pregnant and suffered pain in the process and her
pregnancy was terminated. The facts of the case further continued that complainant has even
demanded 50,000 and a gold chain and even when the complainant left the matrimonial house and
asked for the stri dhan he retained it and also tortured her.

ISSUES:

Whether any directions are called for to prevent the misuse of Section 498A, as acknowledged in
certain studies and decisions ?

REASONING:

This court clearly made its stand by explaining and reasoning of the Section 498 A in a detailed
manner as follows,

Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands
of husband or his relatives against a wife particularly when such cruelty had potential to result in
suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46
of 1983. The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to
commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a
view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of
cases continue to be filed under Section 498A alleging harassment of married women. We have
already referred to some of the statistics from the Crime Records Bureau. This Court had earlier
noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues.
Many of such complaints are not bona fide. At the time of filing of the complaint, implications and
consequences are not visualized. At times such complaints lead to uncalled for harassment not only

5 . LNIND 2017 SC 351

to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.
This Court had earlier observed that a serious review of the provision was warranted. The matter
also appears to have been considered by the Law Commission, the Malimath Committee, the
Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the
earlier part of the Judgment. The abuse of the Explanation to Section 498A in Preeti Gupta’s case
and provision was also noted in the judgments of this Court referred to earlier. Some High Courts
have issued directions to check such abuse. In Arnesh Kumar this Court gave directions to
safeguard uncalled for arrests.

CONCLUSION:

Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-

i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal
Services Authorities preferably comprising of three members. The constitution and working of such
committees may be reviewed from time to time and at least once in a year by the District and
Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired
persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and
looked into by such committee. Such committee may have interaction with the parties personally or
by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it
latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own
merit.

(i) Members of the committee may be given such basic minimum training as may be considered
necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.
(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered
necessary and proper.

ii) Complaints under Section 498A and other connected offences may be investigated only by a
designated Investigating Officer of the area. Such designations may be made within one month
from today. Such designated officer may be required to undergo training for such duration (not less
than one week) as may be considered appropriate. The training may be completed within four
months from today.

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any
other senior Judicial Officer nominated by him in the district to dispose of the proceedings
including closing of the criminal case if dispute primarily relates to matrimonial discord;

iv) If a bail application is filed with at least one clear day’s notice to the Public
Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of
disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights
of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters,
individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and
interest of justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red
Corner Notice should not be a routine;

vi) It will be open to the District Judge or a designated senior judicial officer nominated by the
District Judge to club all connected cases between the parties arising out of matrimonial disputes so
that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be
required and the trial court ought to grant exemption from personal appearance or permit
appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.
Case Number-5
CASE NAME: Amardeep Singh vs. Harveen Kaur6

CITATION: LNINDORD 2017 SC 13612

FACTS:

The facts which has given rise to this appeal is that marriage between the parties took place on 16 th
January, 1994 at Delhi. Two children were born in 1995 and 2003 respectively. Since 2008 the
parties are living separately. Disputes between the parties gave rise to civil and criminal
proceedings. Finally, on 28th April, 2017 a settlement was arrived at to resolve all the disputes and
seeks divorce by mutual consent. The respondent wife is to be given permanent alimony of Rs.2.75
crores. Accordingly, HMA No. 1059 of 2017 was filed before the Family Court (West), Tis Hazari
Court, New Delhi and on 8th May, 2017 statements of the parties were recorded. The appellant
husband has also handed over two cheques of Rs.50,00,000/-, which have been duly honoured,
towards part payment of permanent alimony. Custody of the children is to be with the appellant.
They have sought waiver of the period of six months for the second motion on the ground that they
have been living separately for the last more than eight years and there is no possibility of their
reunion.

ISSUES:

Whether such marriage shall be solemnized before or after the commencement of the Marriage
Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of
one year or more, that they have not been able to live together and that they have mutually agreed
that the marriage should be dissolved?

REASONING:

6 . LNINDORD 2017 SC 13612

The subject matter and the object of the provision, This principle, as formulated in Justice G.P.
Singh’s “Principles of Statutory Interpretation”, has been cited with approval in Kailash versus
Nanhku and ors as follows, 15 (2005) 4 SCC 480 “The study of numerous cases on this topic does
not lead to formulation of any universal rule except this that language alone most often is not
decisive, and regard must be had to the context, subject-matter and object of the statutory provision
in question, in determining whether the same is mandatory or directory. In an oft-quoted passage
Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall
be considered directory only or obligatory with an implied nullification for disobedience. It is the
duty of courts of justice to try to get at the real intention of the legislature by carefully attending to
the whole scope of the statute to be considered’. “For ascertaining the real intention of the
legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the
statute, and the consequences which would follow from construing it the one way or the other; the
impact of other provisions whereby the necessity of complying with the provisions in question is
avoided; the circumstances, namely, that the statute provides for a contingency of the non-
compliance with the provisions; the fact that the non-compliance with the provisions is or is not
visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all,
whether the object of the legislation will be defeated or furthered. If object of the enactment will be
defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it
mandatory serious general inconvenience will be created to innocent persons without very much
furthering the object of enactment, the same will be construed as directory”.

CONCLUSION:

The waiver of the waiting period for the second motion will be in the discretion of the concerned
Court. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but
directory, it will be open to the Court to exercise its discretion in the facts and circumstances of
each case where there is no possibility of parties resuming cohabitation and there are chances of
alternative rehabilitation. Needless to say that in conducting such proceedings the Court can also
use the medium of video conferencing and also permit genuine representation of the parties through
close relations such as parents or siblings where the parties are unable to appear in person for any
just and valid reason as may satisfy the Court, to advance the interest of justice. The parties are now
at liberty to move the concerned court for fresh consideration in the light of this order. The appeal is
disposed of accordingly.
Case Number-6
CASE NAME: B.Sunitha vs. The State of Telangana7

CITATION: MANU/SC/1527/2017

FACTS:

The appellant’s husband died in a motor accident on 30th July, 1998. She along with her children
and parents of the deceased filed a claim before the Motor Accident Claims Tribunal (MACT)
through the respondent as an advocate. The MACT awarded compensation. The appellant paid a
sum of Rs.10 lakhs towards fee on various dates. However, the respondent forced the appellant to
sign another cheque of Rs.3 lakh on 25th October, 2014 despite her stating that she was unable to
pay more fee as she had no funds in her account. The respondent sent e-mail dated 2 nd November,
2014 claiming his fee to be 16% of the amount received by the appellant. Complaint dated 11th
December, 2014 was filed before the Court under Section 138 of the Act stating inter alia that the
cheque which was issued in discharge of liability having been returned unpaid for want of funds,
the appellant committed the offence for which she was liable to be punished. The appellant was
summoned by the Court against whom she approached the High Court stating that there was no
legally enforceable debt as fee claimed was exorbitant and against law. The claim was in violation
of Advocates Fee Rules and Ethics as fee could not be demanded on percentage of amount awarded
as compensation to the appellant. Her signatures were taken when she was under distress. The
petition was contested by the respondent by submitting that the appellant having agreed to pay the
professional fee and having availed his professional services, she could not contest the claim for
fee. It was submitted that the respondent had engaged services of other senior advocates and paid
huge amount for their services at various courts including the Supreme Court.

ISSUES:

Whether fee can be determined with reference to percentage of the decretal amount?

Whether the professional ethics require regulation of exploitation in the matter of fee?

REASONING:

7 . MANU/SC/1527/2017
In this Case of the complainant is that on behalf of the accused, he has filed claim petitions in M. C.
O. P. Nos. 2339 of 1992 and 246 of 1993. Two civil cases were also filed. There is nothing to show
that the complainant/Advocate himself has paid the stamp duty and bore the legal fees. The
complainant has not produced any agreement showing as to what was the arrangement between him
and the accused, as to how much is the fee payable and whether the accused agreed for payment of
stamp duty by her counsel itself. In the absence of any agreement, Ex. P-1 cheque cannot be said to
have been issued for the purpose of discharge of any substantial debt or liability. Urging the Court
to raise the presumption under Section 139 N. I. Act, the learned counsel for the appellant has relied
upon M/s. Modi Cements Ltd. versus Kuchil Kumar Nandi [(1998) 3 SCC 249] wherein the
Supreme Court has held that once the cheque is issued by the drawer a presumption under Section
139 N. I. Act must follow and merely because the drawer issues a notice to the drawee (Payee) or to
the Bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by
the drawee (Payee) or the holder of a cheque in due course. Of course, under Section 139 N. I. Act,
there is a presumption that unless the contrary is proved, the holder of the cheque received the
cheque for the discharge in whole or in part of any debt or other liability. But even in Section 139
N. I. Act, the legal presumption is created only for the cheque so received for the discharge in
whole or in part of any debt or other liability. In the case on hand, the complainant being a
practising advocate, has not proved the debt amount payable towards him by the accused, who has
engaged him as his lawyer to conduct the case.

CONCLUSION:
This Court requested the Law Commission to have a re-look at the regulatory mechanism and
expressed the hope that the Government of India will consider the recommendation of the Law
Commission in its 266th Report. Basing on the decision Mahipal Singh Rana Advocate v. State of
Uttar Pradesh8 Element of public service has to remain predominant. The Commission noted that
there was a huge loss of working days by call of unjustified strikes in jurisdiction of various High
Courts resulting in denial of justice to the litigant in public. The Law Commission thereafter
considered the issue of review of regulatory framework of the legal profession. Referring to the
developments in other countries it was observed that there was dire necessity of reviewing
regulatory mechanism not only in the matter of discipline and misconduct but also in other areas. It
was suggested that constitution of the Bar Council required a change for which an Amendment Bill
was also recommended. We hope that the concerned authorities in the Government will take
cognizance of the issue of introducing requisite legislative paragraphs and chapter’s changes for an
effective regulatory mechanism to check violation of professional ethics and also to ensure access to
legal services which is major component of access to justice mandated under Article 39A of the
Constitution.

Case Number-7

8 (2016) 8 SCC 335

CASE NAME: Janajagrithi Samithi and others v Union of India and others9

CITATION: 2019 Indlaw NGT 11

FACTS:

The case of the Applicants and the Appellants is that initially M/s. Nagarjuna Fertilizer and
Chemicals Ltd. (NFCL) had proposed a 2 MT/annum capacity steel production industry with a
captive power generation plant of 1000 MW at the same site in Mangalore Taluk as per
Government order dated 15.11.1995, which& Ors later was permitted to be shifted to Yellur,
Santhur, Padebetu and Thenka villages in the year 1995-1996 by the Karnataka Industrial Areas
Development Board (KIADB). It is alleged that the 5th Respondent power project, is neither
location-specific nor load-specific nor environmental friendly which is in violation of the new IPP
policy dated 08.01.2001 to which the said respondent was subject to. The Respondent No. 3,
Karnataka State Pollution Control Board (KSPCB), granted clearance on 19.03.1996 based on a
Regional Environment Impact Assessment (REIA) for the site and, the fact that the clearance was
granted without making reference to any date or the name of the agency which had carried out the
studies, raised serious doubts on the very existence of the REIA in respective of Yellur and the
neighbouring villages. It is alleged that Yellur village had never been a part of approved location of
the two other thermal power projects proposed by NTPC and Cogentrix and, therefore, Part-I of the
letter granting clearance which states that it is located within such area for which KSPCB,
Government of Karnataka and the Government of India had cleared the project earlier, was
incorrect and misleading. No Cumulative Impact Study had been undertaken for the combined
requirement of 50,000 tonnes of coal estimated to be used in the various power projects proposed in
the area.

ISSUE:

Whether the requirement of Clause 2 (I) (a) of the EIA Notification, 1994 reproduced above had
been satisfied?

REASONING:

9. 2019 Indlaw NGT 11

The court has taken into consideration that the Environmental Clearance dated 01.08.2017 for
expansion by addition of 2x800 MW (Phase-II) Imported Coal based Super Critical Thermal Power
Project at Padubidri Industrial Area in Village Yellur, Taluk Udupi, District Udupi, Karnataka, is
bad inter alia for having failed to comply with the mandatory requirement of holding public hearing
in terms of stage-III of the EIA Notification, 2006 read with Clause 7 (ii) thereof and item 1(d) of
the schedule to the said Notification, we direct that there shall be no further activities in respect of
the proposal for expansion. Before embarking upon it, we deem it appropriate to direct the
MoEF&CC to ensure that the project proponent carries out an additional EIA study, in terms of
additional ToR prepared pursuant to our findings at paras 124 and 125 supra, followed by strict
observance of procedure under Stage-III of EIA Notification, 2006 before being finally placed for
appraisal by the EAC for consideration for grant of Environmental Clearance. Paras 124 and 125
referred to above are reproduced below for convenience:

“124. The question that then requires determination is, should the EC be quashed and set aside?
After careful consideration, we find that further studies are unavoidable in order to ensure that the
EIA is complete. We, therefore, direct as follows:
(i) Baseline data of the area in relation to the existing project of 2x600 MW shall be scrupulously
collected.
(ii) In addition to the above, the State of Karnataka shall get a carrying capacity study of the area
carried out.
(iii) The baseline data and the carrying capacity study shall be considered as components for
studying the impact in relation to the proposed expansion;
(iv) Fresh public hearing shall be conducted strictly in accordance with the procedure laid down in
Appendix IV of EIA Notification, 2006 ensuring wide participation of the people affected by the
project.
125. After completion of the above, report shall be submitted to the MoEF&CC to be placed before
the Expert Appraisal Committee for appraisal as required under stage IV of the EIA Notification,
2006. The entire exercise shall be completed within a period of one year. In the meanwhile, EC
dated 01.08.2017 shall remain suspended.” Interim report shall be submitted every three months,
first of which shall be 17.07.2019.
CONCLUSION:
The court concluded that since the Tribunal already held that the Environmental Clearance dated. 1-
8-2017 for expansion by addition of 2x800 MW (Phase-II) Imported Coal based Super Critical
Thermal Power & Ors Project at Padubidri Industrial Area in Village Yellur, Taluk Udupi, District
Udupi, Karnataka, is bad inter alia for having failed to comply with the mandatory requirement of
holding public hearing in terms of stage-III of the EIA Notification, 2006 read with cl. 7 (ii) thereof
and item 1(d) of the schedule to the said Notification, we direct that there shall be no further
activities in respect of the proposal for expansion. Before embarking upon it, Tribunal deem it
appropriate to direct the MoEF & CC to ensure that the project proponent carries out an additional
EIA study, in terms of additional ToR prepared pursuant to findings followed by strict observance
of procedure under Stage-III of EIA Notification, 2006 before being finally placed for appraisal by
the EAC for consideration for grant of Environmental Clearance. Interim report shall be submitted
every three months, first of which shall be dt. 17-7-2019. It will only be after the requirements are
fully satisfied that the MoEF & CC shall consider the grant of Environmental Clearance. In the
meanwhile, the order dt. 1-8-2017 shall remain suspended and shall not be acted upon. List matter
after three months in terms of the direction for consideration of the interim report and also to
consider issuing directions for payment of compensation. The Respondent No. 5 shall pay a sum of
Rs. 1 lakh, as cost to the Applicant. With the directions, appeals are allowed in part. Appeals partly
allowed.
Case Number-8
CASE NAME: M. Rajendran S/o Maniyakkarar v Union of India10
CITATION: 2019 Indlaw NGT 8
FACTS:
The appellant is a practicing lawyer and claims to be a public spirited Environmentalist. It is alleged
in the appeal memorandum that the mining area has not been properly identified. The project
proponent, the 3rd Respondent, in their application for getting Environmental Clearance mentioned
the proposed mining area as place lying with Latitude and Longitude are 10 057' 29.40" N and 10
058' 02.10" N and 78012' 28.50" E and 78013' 48.00" E respectively and according to the appellant
this measurement will only go in a straight line and it is difficult to identify the mining area. On the
basis of the application submitted by the 3rd Respondent, the Respondents No. 1 and 2 after getting
the report of the Expert Appraisal Committee, by letter dated 14.05.2015, granted clearance to the
3rd Respondent for mining of River Sand in u/p and d/s of Kattalai Bed Regulator in Cauvery River
with a proposed production capacity of 15,01,247 m3 over an extent of 196.25 hectare, located at
Sriramasamudram / Silaipilayaputhur, Tehsil: Thottiyam, District - Trichy, Tamil Nadu subject to
compliance of 21 Specific terms and conditions and 29 General terms and conditions for a period of
three years.
ISSUES:
1. Whether the impugned Environment Clearance granted is valid or not?
2. Whether there were any violation of the condition imposed and whether there was any
damage caused to the environment is not matter to be considered in the appeal?

REASONING:
It is clear that the authorities had considered all the aspects including the impact of Environment for
granting the Environmental Clearance after considering all the documents submitted by the 3rd
respondent for this purpose which contained all the necessary details and it is only thereafter that
the clearance & Ors was granted. Further it will be seen from the documents produced itself that in
the first meeting when the proposal was considered, the Expert Committee did not approve the same
but wanted clarification and further particulars and only after submitting the same by the 3rd
Respondent, it was& Ors considered in the further meeting held for this purpose and this project
was approved and recommendation was given, for giving the Environment Clearance based on
which the same was granted by the Ministry of Environment, Forest and Climate Change. So under
such circumstances, we do not find any reason to set aside the Environment Clearance granted as
claimed by the appellant and the appeal lacks merit and the relief claimed need not be granted.

10. 2019 Indlaw NGT 8

CONCLUSION:
The court have concluded that the result the appeal is disposed of as follows:
(1) The relief of setting aside the Environmental Clearance granted to the 3rd respondent is
disallowed.
(2) However, we feel that it is necessary to ascertain as to whether there were any violation
committed by the Project Proponent namely the 3rd Respondent, whether the terms and conditions
imposed were compiled or not complied and whether any excess mining has been done and if so
what is the quantum of damage caused to the environment and the remedial measures to restore the
same including realization for compensation from the Project Proponent in case such a violation and
damage has been committed. For this, we constitute a Committee consisting of the following
persons:
(a) A senior Scientist/Engineer of the Central Pollution Control Board.
(b) Member Secretary or a senior Scientist/Engineer of the Tamil Nadu Pollution Control Board.
(c) A technical representative of the Mining Department of that particular District.
(d) Any Environment Engineer of SEIAA or State Pollution Control Board.
The Committee shall consider the above aspects after inspecting the place within one week from the
date of the receipt of this judgement and submit a report regarding the violation noted and
compensation recoverable for excess mining and compensation for restoration for environmental
loss caused within a period of one month thereafter. The State Pollution Control Board will be the
Nodal agency to coordinate the things and shall submit the report to this Tribunal by e-mail before
that period.
(3) Considering the circumstances of the case the parties are directed to bear the respective cost in
the appeal. The appeal is disposed of accordingly. For consideration of the report, list the matter on
31st March, 2019.
Case Number-9
CASE NAME: S. P. Muturaman S/o S. Ponnusamy v Union of India11
CITATION: 2019 Indlaw NGT 7

FACTS:
The main issue in the case was regarding publication of notification, that the project was started as a
new flood carrier canal from 6.50 km of the existing Kannadian anicut channel near village
Vellankuzhi and end in Theri village for a distance of 73 Kms. It is also proposed to make a
percolation pond at the Theri village and also to form flood bank, two new checks dams across
Karumeniyar-one U/S and other D/S of Santhakulam Nazareth road, three links canals and three
supply canals benefiting an area of 23,040 ha. The terms of reference is in respect of 18,225 ha of
Wet land, 722.88 ha of dry land and 59.82 ha of poramboke land. As per Schedule 1 (c) of EIA
Notification, 2006, any irrigation project having Culturable Command Area more than 10,000 ha
will fall under category A which requires prior environment clearance which has not been obtained
in this case. The Terms of Reference was issued vide letter No. J-12011/45/2010-1A-I, dated 14th
December, 2012 by the Expert Appraisal Committee appointed by the Ministry of Environment,
Forest and Climate Change but the public hearing was conducted only after two years beyond the
validity period which is not legal. Further major portion of work has already been completed which
affected the environment and the authorities are liable to be prosecuted for the violation.
ISSUES:
Whether the EIA notification of 2006 talks about prior environmental clearance for cultivable lands
more than an area of 10,000 Acres (1 Hectare)?
REASONING:
It is clear from the statement of the Government of Tamil Nadu that except doing some preliminary
work, no other major work was done by the Public Work Department in implementing the scheme
(anticipating Environment Clearance from the MoEF) and thereafter it was stopped in the year 2011
itself. Except some technical flaw that has been pointed by the appellant, there is nothing to show
that the project was not considered by the Expert Appraisal Committee on the Environmental angle
and the condition imposed were not sufficient to protect the environment as well. Even the appellant
had no such case. Though the appellant had stated that 60 % of the work was completed without
getting prior Environment Clearance, there is no evidence to prove this fact. In view of the above
discussion, we do not find any reason to quash the impugned environment clearance granted by the
Ministry of Environment, Forest and Climate Change for the project on the ground of technical
lapses considering the fact that the scheme is going to help farmers and it is intended for using the

11. 2019 Indlaw NGT 7

surplus flood water flowing from Tamiraparani river to the sea in a beneficial way benefiting large
number of farmers and also for the agricultural purposes.

CONCLUSION:
In the result, we do not find any reason to set aside the Impugned Environment Clearance granted
by the MoEF for the project. We do not also want to impose any penalty or compensation against
the department as it was done by the officers in good faith for the benefit of the Society at large. We
feel that since it involves some bio diversity areas as well, instead of providing a blanket condition
of steps must be taken for bio diversity conservation, making it clear to establish biodiversity park
will be more appropriate and we direct the Tamil Nadu Government through its public works
department to establish bio diversity park in the project area to conserve and protect the bio
diversity available in that area which will be sufficient to safeguard the impact on environment.
This condition is also imposed which has to be implemented by the Tamil Nadu Government while
completing the project as a part of the implementation of project.
Case Number-10
CASE NAME: Commissioner of Income Tax-I vs. Abhishek Industries Ltd.12
CITATION: 2006 286 ITR 1 P H
FACTS:
The facts, as are available on records, are that the respondent assessee filed its return of income for
the assessment year in question on 31.12.1993, showing its income as "nil". Subsequently, revised
return was filed on 12.8.1994 declaring the loss at Rs. 4,53,07,410/-. The assessment was completed
under Section 143(3) of the Income-tax Act, 1961 and vide order dated 29.3.1996 assessing the loss
at Rs. 96,81,213/-, inter alia, making additions on account of disallowance of interest under Section
36(1)(iii) of the Act for interest free advances made by the assessee to its sister concerns for non-
business purposes and treating the receipt of sales tax subsidy by the assessee as revenue receipt as
against capital receipt treated by the assessee.
ISSUES:
Whether on the facts and circumstances of the case, the Hon’ble Income Tax Appellate Tribunal
was right in deleting the disallowance of Rs. 16,48,024/- made on account of interest on interest
free advances given to the sister concern for non- business purpose ?

REASONING:
The Tribunal has not even referred to any of the judgments of either Hon’ble the Supreme Court or
various High Courts on the issue, but has merely given the citations or appeal numbers of various
Benches of the Tribunal. As far as issue of subsidy is concerned, it has not even referred to the
provisions of various schemes or the provisions in the case in hand, which could justify its finding
to hold that kind of subsidies in the present case are capital and not revenue in nature. Similar was
the manner in which the issue regarding interest free advance to sister concern was dealt with. The
Tribunal was required to examine the material on record before rendering decision on any issue
raised by the parties. It is evident that there is no application of judicial mind by the Tribunal in this
case. The Tribunal being the last fact finding authority, a higher responsibility is cast by the
Legislature on it to decide the cases by recording complete facts and assigning cogent reasons. It is
the duty of the Tribunal to decide the cases on the basis of the law laid down by the Supreme Court/
High Court and not what the Tribunal decides on the particular issue. Every effort must be made by
the Tribunal to decide the issue by taking help from the decisions of the Supreme Court and if there
is no direct authority of the Supreme Court on the point then of the jurisdictional High Court and
lastly of any other High Court. Not taking note of the facts of the case, nor the legal position and not
even referring to the facts of the case involved in those decisions on which reliance is placed for

12. 2006 286 ITR 1 P H

deciding the appeal amounts to non-exercise of the appellate powers by the Tribunal, which cannot
be appreciated at all.
CONCLUSION:
The court has concluded that “We are hopeful that the Tribunal will be careful in future in deciding
the lis between the parties which is in conformity with the principles laid down therefore.
Accordingly, the appeal of the Revenue is accepted, the order of the Tribunal is set aside and it is
held that: the assessee will not be entitled to claim deduction of the interest on the borrowing’s to
the extent those are diverted to sister concerns or other persons without interest and the kind of sales
tax subsidy received by the assessee in the present case is held to be revenue receipt and not capital
in nature.”
Case Number-11
CASE NAME: Radhey Shyam & Anr vs Chhabi Nath & Ors13
CITATION: (2015) 2 MLJ 750
FACTS:
The case deals with the assailing an interim order of civil court in a pending suit, the defendant-
respondent filed a writ petition before the Allahabad High Court and the High Court having vacated
the said interim order granted in favour of the plaintiff-appellant, the appellant moved this Court by
way of a special leave petition, inter alia, contending that the writ petition under Article 226 was not
maintainable against the order of the civil court and, thus, the impugned order could not be passed
by the High Court. On behalf of the respondent, reliance was placed on the decision of this Court in
Surya Dev Rai laying down that a writ petition under Article 226 was maintainable against the order
of the civil court and thus it was submitted that the High Court was justified in passing the
impugned order.
ISSUES:
Whether the view taken in Surya Dev Rai that a writ lies under Article 226 of the Constitution
against the order of the civil court, which has been doubted in the reference order, is the correct
view?
REASONING:
We may also deal with the submission made on behalf of the respondent that the view in Surya Dev
Rai stands approved by larger Benches in Shail, Mahendra Saree Emporium and Salem Advocate
Bar Assn and on that ground correctness of the said view cannot be gone into by this Bench. In
Shail, though reference has been made to Surya Dev Rai, the same is only for the purpose of scope
of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on
the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium, reference
to Surya Dev Rai is made in para 9 of the judgment only for the proposition that no subordinate
legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Bar
Assn. in para 40, reference to Surya Dev Rai is for the same purpose.
CONCLUSION: Thus, we are of the view that judicial orders of civil courts are not amenable to a
writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench
that a writ of mandamus does not lie against a private person not discharging any public duty. Scope
of Article 227 is different from Article 226. Accordingly, we answer the question referred as
follows: “(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of
the Constitution.(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction
under Article 226. Contrary view in Surya Dev Rai is overruled.”

13 . (2015) 2 MLJ 750

Case Number-12
CASE NAME: State Bank of India and Ors. V. Kingfisher Airlines Ltd. And Ors14
CITATION: LNIND 2017 SC 260
FACTS:
In this case the petitioners banks they had individually advanced to Respondent No.1 loans of
thousands of crores of rupees, that by Master Debts Recast Agreement dated 21.10.2010 and other
related documents the existing loans were restructured and treated as a single facility, and that
Respondent Nos.2 and 3 executed a corporate guarantee dated 21.12.2010 and a personal guarantee
dated 21.12.2010 respectively, guaranteeing repayment of the entire amount due. Further, since the
above accounts were classified as non-performing assets, the petitioners banks filed OA No.766 of
2013 against Respondent Nos.1 to 9 before Debt Recovery Tribunal, Bengaluru (for short DRT
Bengaluru), inter alia seeking recovery of Rs.6203,35,03,879.32 (Rupees Six Thousand Two
Hundred and Three Crores Thirty Five Lakhs Three thousand Eight Hundred and Seventy Nine and
Paise Thirty Two only) from Respondent Nos.1 to 4. It is the case of the petitioners-banks that
despite applications having been filed requiring Respondent Nos.1 to 4 to disclose details of their
assets on oath, said respondents never disclosed the assets and instead, said respondents secretly
tried to dispose of their assets with an intention to defeat the recovery proceedings pending before
DRT Bengaluru.
ISSUES:
1. Whether the orders would be restricted only so far as the properties which were in the hands
of the concerned respondents as on the date when those orders of restraint were passed?
2. Whether the assets to be so disclosed were covered by the personal guarantee given by
Respondent No.3 or not was immaterial?
REASONING:
The court found that “Though the contempt on the second count is theoretically of the orders passed
by the High Court of Karnataka since those orders pertain to the very same Cause and the actions on
part of Respondent No.3 in not disclosing the account in question through which the transfers were
affected also fall with respect to contempt on first count, we proceed to exercise our contempt
jurisdiction even with regard to the second count. As stated above, Respondent No.3 was
adequately put to notice and no prejudice has been caused as a result of such assumption of
jurisdiction by this court. Having considered the entirety of the matter, we find that Respondent
No.3 is guilty of having committed contempt of court on both the counts. At this stage it must be
stated that in terms of Rule 6 (1) of Rules to Regulate Proceeding for Contempt of Supreme Court
1975, Respondent No.3 was obliged and duty bound to appear in person in response to the notice

14 . LNIND 2017 SC 260

issued by this Court in Contempt Petition. Instead, he chose to file application seeking recall of the
orders issuing notice. Having considered the matter, we see no reason to recall that order and
dismiss I.A. Nos.1 to 4 of 2016 preferred by Respondent No.3 in Contempt Petition Civil No.421-
424 of 2016. Respondent No.3 is therefore duty bound to appear in person in the present contempt
proceedings.”
CONCLUSION:
The court had concluded that since Respondent No.3 has not filed any reply to the Contempt
Petition nor did he appear in person, though we have found him guilty of having committed
contempt of court, we deem it necessary to give him one more opportunity and also hear him on the
proposed punishment. We therefore adjourn matter to 10.07.2017 for hearing Respondent No.3 in
person on matters in issue including one regarding the proposed punishment to be awarded to him
for contempt of court. The instant contempt petitions and connected cases shall now be listed at 2 o
clock on 10.07.2017. Respondent No.3 may keep his affidavit ready to be tendered on the same day
by stating mitigating circumstances, if any and any other submissions he chooses to advance. We
direct the Ministry of Home Affairs, Government of India, New Delhi to secure and ensure
presence of Respondent No.3 before this Court on 10.07.2017. A copy of this Judgment be sent to
the Ministry of Home Affairs for compliance.
Case Number-13
CASE NAME: Jasveer Singh And Another v. State Of U P And Others15
CITATION: LNIND 2017 SC 245
FACTS: These appeals have been preferred against the Order of the High Court of Allahabad in
Writ C. No. 59918 of 2014 rejecting the prayer of the appellants for quashing the land acquisition
proceedings initiated vide notification dated 18th August 1981 under Sections 4 and 6 of the Land
Acquisition Act, 1894. The acquisition was for the construction of New Broad Gauge Railway Line
between Rampur and Haldwani in the District of Rampur. Urgency clause was invoked. Possession
of the land was taken on 19th September, 1986. The award was made on 22nd September, 1986.
The appellants preferred reference under Section 18 for enhancement of compensation which was
decided vide Award dated 7th December, 1988 by the District Judge, Rampur. First appeals against
the said award were decided by the High Court on 29th January, 2004. This Court vide order dated
12th September, 2005 in Civil Appeal Nos. 5714-15 of 2005 remanded the matters to the High
Court having regard to the grievance of the appellant against denial of statutory benefits. On 19th
December, 2005 the appellants filed a writ petition before the High Court seeking quashing of the
acquisition proceedings which was decided by the High Court on 3rd December, 2010 directing
redetermination of compensation.
ISSUE:
Whether the High Court has power to hear afresh Writ Petition preferably within 6 months of
certified copies of the order rendered by Hon’ble Chief Justice?
REASONING:
It is seen from the above resume of the proceedings that the appellants were paid compensation and
possession was duly taken. The appellants also preferred reference on which higher compensation
was awarded and matter attained finality upto this Court. The appellants thereafter filed a writ
petition challenging the acquisition proceedings which were held to bar by delay and latches against
which SLP was dismissed by this Court. Of course, an observation was made that the appellants
could prefer appropriate proceedings based on their grievance under the 2013 Act.
CONCLUSION:
The court concluded that the grievance of the appellants against acquisition proceedings on the
ground that the award was not a valid award was rejected and SLP was dismissed by this Court but
permitting a fresh challenge. The fact remains that the challenge of the appellants is barred by
laches and the said finding does not suffer from any infirmity. Even if the appellants were permitted
to lay a fresh challenge, they are required to overcome this legal bar which in our view the
appellants have not been able to overcome.

15 . LNIND 2017 SC 245

Case Number-14
CASE NAME: Tarun Bhargava vs. State Of Haryana and Anr.16
CITATION: 2003 (3) KLT 397
FACTS:
FIR was registered on a direction of the Chief Judicial Magistrate under Section 156(3) Cr.P.C. on a
complaint filed by respondent No.2 (hereinafter referred to as the complainant), wherein it was
stated that the complainant purchased a car for Rs.2,44,603/- through the accused petitioner
(hereinafter referred to as the petitioner) In August, 1995 arid paid an initial amount of Rs.52.5M/-
and paid 26 instalments of Rs.8944/- each amounting to Rs.2,32,544/- and though there was no
default by the petitioner in the payment of instalments up to 20.10.1997, the petitioner along with
others went to the place of the complainant and snatched the car from him by using a duplicate key
which was with the accused? It is further stated that the complainant was the registered owner of the
car and though he objected to the car being taken away, the petitioner used filthy language and
pushed away the complainant and forcibly took away the car. It is also stated that the complainant
was threatened with dire consequences, if he pursued his complaint with the consumer forum and
thus, the petitioner committed an offence under Sections 323/506/392/120-B of the Code. It was
further stated that though the accused had assured that relevant papers and second key of the car
will be given to the complainant, no paper and second key of the car was handed over to the
complainant.
ISSUES:
(a) Whether Clause 4 of the agreement enabling the petitioner to forfeit all instalments paid by
the complainant and entitling the financier to enter the in house or place, where the vehicle is, to
seize, remove and retake the possession is valid?
(b) Whether Clause 7 of the agreement, which permits the petitioner to refuse to give credit or
set off the payment already made, when the vehicle is seized by the petitioner under Clause 4 of the
agreement or surrendered by the complainant, is valid?
REASONING:
Now I take up third question, namely, whether clause 4 in the agreement enabling the financier and
permitting him to forfeit the payments already made is valid. In my view, such an agreement would
be void. Section 74 of the Act provides compensation for breach of contract. The party complaining
breach of contract is entitled to receive from the party, who breaches the contract, reasonable
compensation not exceeding the amount named, but it is well settled that if the amount named is by
way of penalty, having no nexus to the actual loss suffered, the same cannot be enforced. Reference

16 . 2003 (3) KLT 397

is made to a judgment of the Supreme Court in Fateh Chand v. Balkishan Das17. In Bridge v.
Campbell Discount Co. Ltd18, such a clause was held to be not a genuine pre-estimate of damages,
but a penalty. Similar view was taken in Galbraith v. Mitchenall Estates Ltd.19. I am. therefore, of
the view that the clause permitting forfeiture of any amount paid will be void. Any amount paid by
the debtor will have to be accounted for and credited to his accoTo join the video meeting, click this
link: https://meet.google.com/uid-xjzi-bzrunt and the right of the creditor is only to recover the
balance amount.
CONCLUSION:
1. A hire-purchase agreement may in substance be a loan transaction and the label of such an
agreement is not conclusive. It is open to the Court to determine whether a particular agreement is a
loan transaction or a hire-purchase agreement. The parameters to be applied are laid down. Inter
alia, in the judgment of the Supreme Court in Sundaram Finance Ltd’s case (supra), In the present
case, the agreement though termed as hire-purchase agreement, is held to be a loan agreement for
the reasons already mentioned.
2. In a loan agreement for financing goods on hypothecated basis, the creditor cannot forcibly
repossess the hypothecated item, though he can enforce the security through the Court.
3. If a specific Clause 18 inserted in an agreement authorising repossession of a vehicle or any
other goods by the hypothecatee, such a clause may be unconscionable, unless otherwise shown by
the hypothecatee and such a clause inserted in the present case is held to be void. In the present
agreement, Clause 4 and Clause 7 permitting forfeiture of instalments already paid will be deemed
to be void.
4. Forcible repossession without intervention of the Court may involve commission of an
offence and what offence has been committed will depend on facts of an individual case. The
judgments of the Supreme Court in hire purchase cases holding that in a hire purchase agreement,
the owner cannot be guilty of theft of his own property, will not be applicable to cases where the
transaction is, in substance, a loan transaction, as in a loan transaction, the ownership will be of the
borrower and the principle applicable to a hire purchase agreement will not apply.

17 AIR 1963 SC 1405

18 1962(1) All E R 385
19 1964 (2) All E R 653
Case Number-15

CASE NAME: Commissioner of Income Tax vs Rameshwar Dass Suresh Pal Cheeka 20
CITATION: (2007) 208 CTR P H 459
FACTS:
During the course of assessment for the asst. yr. 1987-88, the AO found that Smt. Kamlesh Rani,
partner introduced a sum of Rs. 40,000 in her capital account on 21st March, 1987. She explained
that she was a regular assessee for the last several years and apart from being a partner of the
assessee firm, she had income from interest and other sources, which were declared under the
Amnesty Scheme. She had also deposited a sum Rs. 30,000 in her account, which she had received
by way of gifts and shaguns at the time of her marriage in 1986.
ISSUES:
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in
deleting the aggregate addition of Rs. 70,000 made by the AO and confirmed by the CIT(A) on
account of cash credits under Section 68 of the IT Act, 1961?
REASONING:
There may be a genuine case where a partner or a stranger may bring in moneys to the credit of the
firm and the partner or the stranger may have come into those moneys by thoroughly dishonest
means, but it is not for the firm which is being assessed to satisfy the Department that the moneys
which it received from the partner or the stranger were moneys which the partner or the stranger
obtained by honest means. In my opinion that would be throwing too heavy a burden upon the
assessee. We do not wish to lay down any general law which should apply to all cases. In most
cases it would depend upon the facts actually found. On the facts actually found and strictly
confining our decision to the facts of this case we are of opinion that there were no materials on
which the Department could have come to the conclusion that these credits represented undisclosed
profits of the firm.
CONCLUSION:
In this case court concluded that the question referred is answered against the Revenue and in
favour of the assessee. And hence, the reference is disposed of.

20. (2007) 208 CTR P H 459

Case Number-16
CASE NAME: M/S. Meters and Instruments Private Limited & Anr v. Kanchan Mehta
CITATION:
FACTS:
The Respondent Kanchan Mehta filed complaint dated 15th July, 2016 alleging that the appellants
were to pay a monthly amount to her under an agreement. Cheque dated 31st March, 2016 was
given for Rs.29,319/- in discharge of legal liability but the same was returned unpaid for want of
sufficient funds. In spite of service of legal notice, the amount having not been paid, the appellants
committed the offence under Section 138 of the Act.
ISSUES:
Whether in such a case, the proceedings can be closed or exemption granted from personal
appearance or any other order can be passed?
REASONING:
In every complaint under Section 138 of the Act, it may be desirable that the complainant gives his
bank account number and if possible e-mail ID of the accused. If e-mail ID is available with the
Bank where the accused has an account, such Bank, on being required, should furnish such e-mail
ID to the payee of the cheque. In every summons, issued to the accused, it may be indicated that if
the accused deposits the specified amount, which should be assessed by the Court having regard to
the cheque amount and interest/cost, by a specified date, the accused need not appear unless
required and proceedings may be closed subject to any valid objection of the complainant. If the
accused complies with such summons and informs the Court and the complainant by e-mail, the
Court can ascertain the objection, if any, of the complainant and close the proceedings unless it
becomes necessary to proceed with the case. In such a situation, the accused’s presence can be
required, unless the presence is otherwise exempted subject to such conditions as may be
considered appropriate. The accused, who wants to contest the case, must be required to disclose
specific defence for such contest.
CONCLUSION:
The trial can be on day to day basis and endeavour must be to conclude it within six months. The
guilty must be punished at the earliest as per law and the one who obeys the law need not be held up
in proceedings for long unnecessarily.
Case Number-17
CASE NAME: Life Insurance Corporation of India vs Santokh Singh And Ors21
CITATION: (2005) 139 PLR 111
FACTS:
The respondent filed a suit for mandatory injunction directing the appellant Life Insurance
Corporation of India to pay the amount of Policy Nos. 6437984, 6497323, 6590302, 6437872,
6568459, 6571738, 22150887, 22177624, 6445152, 6499554, 6453469, 6455448, 6547273, on the
life of deceased Tara Singh and also for recovery of Rs. 21,100/- being the balance amount of
Policy Nos. 6590302, 6547273. Case of the plaintiffs is that predecessor Tara Singh had taken LIC
policies. He was missing since 30.7.1964 and is presumed to have died on that date. They filed a
suit on 9.10.1972 for declaration which was decreed and it was declared that Tara Singh died on or
about 30.7.1964. LIC was also made a party in the said suit. An amount payable under the policies
were attached by the Income Tax Department and a sum of Rs. 4,900/- was paid to the said
department by the LIC out of Policy No. 6590302 and a sum of Rs. 2,790/- was paid to the Income
Tax Department out of Policy No. 654272. The plaintiffs instituted suit at Jagraon (their place of
residence) on 8.3.1977 but on account of want of territorial jurisdiction, the plaint was returned on
31.8.1979 for being presented at Jalandhar on or before 20.9.1979.
ISSUES:
 Whether suit is barred under Order 2 Rule 2 CPC in view of filing earlier suit decided vide
judgment and decree Ex.P1?
 Whether suit for recovery of Insurance amount filed on 20.9.1979 claiming life insured is
deemed to have died on 30.7.1964 as he had not been heard since that day is barred by
limitation provided under Article 44(a) of Schedule to the Limitation Act?
REASONING:
The suit was admittedly filed at Jagraon on 8.3.1977 and was returned for presentation at Jalandhar
on or before 20.9.1979. Under Article 44 of the Schedule of the Limitation Act, limitation is three
years from the date of death or from the date of denial of the claim. If date of disappearance which
is finally held to be the date of death is held to be the starting point of limitation in case of person
who is missing, suit for recovery of policy amount can perhaps never be filed within limitation. In
such cases, if a suit for declaration is to be filed as a condition precedent for making claim, decision
of suit is likely to take time. The period of limitation has, thus, to be taken to commence from the
date of decree declaring a person to have died. Under Section 108 of the Indian Evidence Act, 1872,
presumption of death arises only after seven years and not before. A person has, thus, to wait for
seven years before seeking a declaration that the person, who is missing, is dead.

21 . (2005) 139 PLR 111

CONCLUSION:
As regards bar under Order 2 Rule 2 CPC, the courts below have rightly held that the cause of
action in the present suit was the death of Tara Singh which cause of action was available only after
the decree to that effect had been granted. Cause of action for the previous suit was not the same. I,
therefore, find no merit in this appeal and the same is dismissed.
Case Number-18
CASE NAME: Sudagar Khan And Ors. vs The State of Punjab22
CITATION: MANU/PH/0007/2007
FACTS:
In this case, Harpreet Kaur, deceased was married to Sudagar Khan, accused one and a quarter year
prior to occurrence. She had no issue. She was not treated well by the accused persons i.e. her
husband, mother-in-law and sister-in-law, who used to remark that she had brought less dowry. On
31.05.1999 in the morning, he came to know that the deceased was burnt by the accused by pouring
kerosene on her body and she was taken to Civil Hospital, Dhuri. Kangan Khan along with his wife
reached the hospital and saw her body charred on account of burns. She stated that her husband had
caught her while her mother-in-law poured kerosene and sister-in-law lighted the match stick. She
became unconscious. She was later referred to Rajindra Hospital, Patiala for treatment and at the
time of the statement, she was in the said hospital. PW-9 Jagjiwan Singh, ASI went to Rajindra
Hospital and sought opinion of the doctor vide Exh.PJ, but the doctor vide Exh.PJ/1 declared her
unfit to make a statement. On the next day again, the Investigating Officer sought opinion of the
doctor vide Exh.PK and doctor again declare her unfit to make a statement vide Exh.PK/1. On the
third day on 2.6.1999, the Investigating Officer gave an application Exh.PL, on which the doctor
declared her fit to make a statement vide Exh.PL/1. Her statement/dying declaration was recorded
by Dr. K.D. Singh which is Exh.PT, which was thumb-marked by Harpreet Kaur. He then recorded
the statement of Kangan Khan Exh.PD in the hospital leading to registration of FIR Exh.PD/1. The
Investigating Officer visited the spot and inspected the same. He prepared a site plan Exh.PH,
recovered plastic can containing kerosene and a match box.
ISSUES:
Whether the section 313 of CrPC is aptly being applied in this case?
REASONING:
It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains
on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger
when a judgment of acquittal is passed. The entire case is based on circumstantial evidence. Pieces
of circumstances, however strong may be, it is well known that all links in the chain must be
proved. In this case a vital link in the chain viz. possibility of Appellant 1 committing the offence,
closing the door and then sneaking out of the room from one of the two places had not been proved
by the prosecution.

22 . MANU/PH/0007/2007
CONCLUSION:
As in absence of clear evidence, we are unable to hold that prosecution proved its case beyond
reasonable doubt. The accused are, thus, entitled to the benefit of doubt. Accordingly, this appeal is
allowed and conviction of the appellants is set-aside and they are acquitted. It has been stated that
the appellant Nos. 2 and 3 are on bail. Their bail bonds are discharged and the appellant No. 1 who
is in custody, is directed to be released forthwith, if not required in any other case. The appeal is
disposed of accordingly.
Case Number-19
CASE NAME: Chanan Singh vs Gurjit Singh And Ors.23
CITATION: (2005) 139 PLR 373
FACTS:
In this Case of the respondent plaintiffs is that one Boor Singh was original owner of the suit land
(allotted in lieu of land left in Pakistan). The suit land was mortgaged on 10.3.1994 for Rs. 3,700/-.
Original mortgagee defendant No. 9 sold his rights to Fauza Singh, defendant No. l on 20.7.1957 by
a registered deed. Original mortgagor sold his rights of redemption to the plaintiff and defendant
No. 24 vide sale deed dated 25.1.1960. Plaintiffs filed an application for redemption before the
Assistant Collector under the provisions of the Redemption of Mortgage Act, 1913 (hereinafter
referred to as 1913 Act) and the same was dismissed on 1.4.1969 on the ground that complicated
question of law was involved.
ISSUES:
Whether the suit beyond 30 years from the date of mortgage and beyond one year from the date of
rejection of application for redemption by the Collector was barred by limitation?
REASONING:
Suit filed by the respondent-plaintiff could not be held to be beyond limitation. Assuming right to
redeem commenced from the date of mortgage itself, the effect of recovery of the debt from the
produce of the land of which possession was given to the appellant-defendant had to be taken into
account as held by the Apex Court in Prithi Nath Singh and Panchanan’s cases. The order of the
Collector rejecting the application for redemption could not have been held to have become final on
account of suit having not been filed within one year of the said order since the said order was not
on merits, in view of law laid down by the Apex Court in Sheo Lal’s case.
CONCLUSION:
The court has concluded that there is also merit in the contention that limitation had to commence
from the year 1957 when the mortgage was duly acknowledged in a registered deed. In view of
these aspects, Court need not go into the question of exclusion of the period spent before the
Collector or in the previous suit as there are contradictory observations on this aspect in judgments
of this Court in Walaiti Ram and Gurbachan Singh’s cases.

23. (2005) 139 PLR 373

Case Number-20
CASE NAME: State Of Haryana vs. Ravinder and Ors.
CITATION:
FACTS:
In this case Brijesh deceased along with his brother Rakesh Dahiya (PW-13) were in the office of
their father Mohinder Singh Dahiya, who was employed as Secretary, Red Cross. Brijesh left from
there in a car after informing Rakesh that he was going to see Ravinder. Rakesh noticed Brijesh
talking with Rameshwar. Rakesh received telephonic message at 12-15 P.M. from Shri O.P.
Chaudhary, former Vice Chancellor, M.D. University, Rohtak, who was related to the deceased that
Brijesh was lying in hospital in injured condition. Rakesh went to the hospital at 2-20 P.M. and was
told that Brijesh had died. His statement (Ex.PD) was recorded by the Inspector Ram Kishan, (PW-
17), who conducted part of the investigation while the part of investigation was done by Inspector
Prem Singh (PW-18). Ravinder accused was represented by Jiwan Singh, Sarpanch (PW-14) before
Prem Singh. On disclosure statement of Ravinder accused, a revolver, five cartridges, licence of
revolver, one key and a motorcycle were recovered. PW-14 Jiwan Singh deposed about extra
judicial confession made by Ravinder accused before him. PW-15 Rameshwar deposed about
having seen Ravinder accused firing a shot at the deceased. He further deposed that Sandeep
stopped the car of Brijesh and gave him a threat to teach a lesson for quarrelling in the college. His
statement was recorded by the SHO of the Police Station on the same day.
ISSUES:
Whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably
unsustainable?
REASONING:
The court is unable to hold that the view taken by the trial Court that PW-15 Rameshwar could not
be relied upon as an eyewitness as for several days, thereafter, the case was treated as without any
clue leading to constitution of a special investigation team and if the said evidence is excluded from
consideration, the remaining evidence was not enough to convict the accused.
CONCLUSION:
The court has concluded conversely, if the appellate court holds, for reasons to be recorded, that the
order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and
then only reappraise the evidence to arrive at its own conclusions.