Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J. allowed an application under Order 7 Rule 11 CPC filed by the defendant in the subject partition suit. The said application sought rejection of plaint (partition suit) on two grounds — that the suit lacked cause of action and the suit was time-barred.

The plaintiff was the son of defendant’s deceased brother. The property in question originally belonged to Kundan Lal Kapur, the father of the defendant. The plaintiff had brought a suit for partition of the property. The defendant filed the present application for rejection of the suit. It was proved that the suit property was in occupation and possession of the defendant. It was mutated in his name after the execution of three General Power of Attorneys and relinquishment deeds in his favour by remaining heirs of Kundan Lal Kapur, including plaintiff’s father. Also, the said documents were executed in 1979, i.e., more than 36 years before filing of the partition suit.

The High Court noted that the GPAs and the relinquishment deeds were duly registered under Section 17 of the Registration Act, 1908 with the relevant authorities, and therefore they were not required to be proved by an attesting witness as is evident from Section 68 of the Evidence Act, 1872. It was observed: “under the provisions of the Registration Act read with the provisions of the Indian Evidence Act, registered documents ought to be read in evidence. The same carries a sanctity in law and are presumed to have been executed.” Further, “The fact that these documents were executed way back in 1979, i.e. almost 40 years ago and 36 years by the time the suit was filed, itself shows that they have enormous sanctity especially in view of Section 90 of the Evidence Act, 1872.”

Since the GPAs and the relinquishment deeds were all registered documents, the same were presumed to be valid and legal. In these circumstances, the Court held that the plaintiff did not have any cause of action, and his partition suit was therefore rejected. The application of the defendant under Order 7 Rule 11 was allowed.[Rajinder Kumar Kapur v. Madan Mohan Lal Kapur, 2019 SCC OnLine Del 9472, decided on 29-07-2019]

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J. reiterated that once the provision for a “special chance” stood removed from the statutes of Delhi University in 2017, the right of students to attempt papers which they could not clear, beyond the span of period, also stood discontinued.

The petitioner secured her admission in Sri Ram College of Commerce of Delhi University in 2012. In the same year she appeared in the Common Proficiency Test conducted for the Institute of Chartered Accountants of India and secured 14th rank on an all-India basis. She simultaneously continued both courses. As per the petitioner, she had cleared all papers of the B.Com (H) course, except the final semester paper of Business Communications. She approached SRCC in May 2019 seeking permission to attempt the paper, which was denied.

The petitioner, represented by Apoorv Agarwal, Advocate, submitted that her parents were suffering ailments and her brother was blind from birth. She was residing in Ajmer with her family. Owing to such circumstances, she could not come to Delhi to attempt the paper. Per contra, Mohinder J.S. Rupal, Hardik Rupal and Prang Newmai, Advocates for Delhi University; and Aman Rewaria for Amit Bansal, Advocate for SRCC made submissions in support of their decision not to allow the petitioner to appear for the paper.

It is pertinent to note that Ordinance (V) of Delhi University provides for a maximum span of 6 years, from the time of joining of the course by the student, within which she may be allowed to complete the course.

Relying on Avadesh Kumar v. Delhi University, 2016 SCC OnLine Del 1949, the High Court observed: “during the currency of her Chartered Accountancy course, the petitioner herself decided to place her B. Com (H) course on the back burner…Perhaps, the petitioner did so because there was a provision, in the statutes governing the University, at that point of time allowing, to the Academic Council, the latitude of permitting candidates who had crossed the span period, a special chance, to appear in papers which remained to be attempted by them. The said provision, however, admittedly stood removed from the statutes governing the University in 2017.”

Holding that a writ petition cannot be founded on the ground of sympathy, and nor a judicial order can be based on such consideration alone, the High Court dismissed the appeal. [Aruvita Mishra v. Delhi University, 2019 SCC OnLine Del 7985, decided on 09-04-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of A.J. Shastri, J. dismissed a petition being devoid of merit as the case did not fall in any of the parameters of Section 115 of Code of Civil Procedure which would permit the Court to exercise the discretion provided under it.

In the present Civil Revision Application, the common judgment of the Principal Senior Civil Judge was challenged. The original suit was filed for seeking dissolution of partnership and for the purpose of accounts and for its share to be distributed and also for an interim injunction where the contentions put forth by the respondents was rejected. The present petitioners being aggrieved of the order contended the partnership in question itself, that not only some of the partners but also their nominees have passed away. Therefore, there remains no cause of action to continue the suit or claim and also the plaint itself is barred by law of limitation. And that the partnership deed has not been operated or continued after the year 1985. Mr Vimal Purohit, learned advocate appearing on behalf of contesting respondents had submitted that if a true construction of partnership is seen from the clauses contained in the partnership deed, a dissolution can never be inferred from 1985. He further submitted that the contract is clearly indicating that partnership can continue even after the death of a partner by inserting nominees as partners. Also, contended that even cause of action is also clearly spelled out in the plaint itself and from the bare averments made in the plaint. To substantiate further two cases were relied upon, Khushal Khemgar Shah v. Khorshed Banu Dadiba Boatwalla, (1970) 1 SCC 415 and Kodendera K. Uthaiaha v. P.M. Medappa, (2017) 16 SCC 331.

The Court while referring to the cases cited, held that, the scope analysed by the Hon’ble Court on the exercise of jurisdiction is aptly propounded in the decisions. The Court further opined that, “first of all the order impugned in the revision application is not possible to be construed as perverse in any manner particularly in view of the fact that contentions which have been raised have been dealt with properly by the learned trial judge and additionally the proposition of law laid down by series of decisions have also been taken note of”. And this case does not fall in any of the parameters required for exercising jurisdiction under Section 115 of CPC.  The revision application being devoid of merit was thus dismissed.[Ramankant Nanalal Jasani v. Sureshchadra Amrutlal Jasani, 2019 SCC OnLine Guj 582, Order dated 11-03-2019]

Case BriefsHigh Courts

Delhi High Court: Vinod Goel, J. dismissed a petition impugning the order passed by Civil Judge whereby defendant’s application under Order 7 Rule 11 CPC.

The plaintiff filed a recovery suit against the defendant (petitioner) on account of selling them wooden furniture. The suit was instituted in Delhi as the plaintiff was carrying on his business of manufacturing and selling wooden items in Delhi. The defendant filed an application under Order 7 Rule 11 for rejection of plaint, on the ground that the contract between the parties was entered into at Udaipur. They pleaded that the cause of action accrued at Udaipur and therefore courts in Delhi had no jurisdiction to try the suit. However, their application was rejected by the Civil Judge. Aggrieved thereby, the defendants filed the present petition.

While holding that the petition was liable to be rejected, the High Court observed, “It is a well-settled principle of law that while deciding an application under Order 7 Rule 11 CPC, the averments made in the plaint are germane and plea taken by the defendant in the written statement would be wholly irrelevant at that stage”. Reliance was placed on Chhotaben v. Kirtibhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422; Ramesh B. Desai v. Bipin Vadilal Mehta(2006) 5 SCC 638 and Salem Bhai v. State of Maharashtra, (2003) 1 SCC 557. It was noted that the plaintiff had averred in the plaint that the defendant approached him for supply wooden furniture at his office in Delhi. In reference to this, the Court stated, “pleadings of the respondent unambiguously indicate that a part of cause of action has accrued within the local limits of Delhi which certainly provides privilege to the respondent to file the suit in the Courts of Delhi.” It was further observed that determination of jurisdiction is a mixed question of law and facts, which can be adjudicated only after the parties adduce their evidence. In such view of the matter, the Court dismissed the petition. [Hansa Place Art Furnitures (P) Ltd. v. Dilip Kumar Sharma, 2019 SCC OnLine Del 7422, dated 25-02-2019]

Case BriefsForeign Courts

High Court of South Africa, Western Cape Division: In this case before a Single Judge Bench of K M Savage, J., defendant had raised an exception to the particulars of claim of plaintiff that the particulars failed to show cause of action.

Plaintiff and defendant had entered into a written master sale agreement incorporating a number of conditions of sale. The reason why defendant alleged no cause of action was that no agreement existed since plaintiff failed to confirm the verbal order in writing due to which defendant was not obligated to confirm the purchase price of the goods. Thus, the defendant could have repudiated the agreement and sell the goods to a third party. Whereas plaintiff submitted that the defendant had failed o discharge the onus to show the absence of cause of action in the particulars of claim.

High Court referred the case of Trustees, Bus Industry Restructuring Fund v. Break Through Investments CC, 2008 (1) SA 67 (SCA) where it was made clear that it is for the excipient to show that the plaintiff’s claim is bad in law which defendant failed to show. The Court was satisfied that the plaintiff had disclosed cause of action and therefore, the exception raised cannot succeed. [Gelvenor Consolidated Fabrics (Pty) Ltd. v. Winelands Textiles (Pty) Ltd., Case no. 5010 of 2018, decided on 06-11-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Prabhat Kumar Jha, J. while hearing a civil writ petition held that in an application for probate of will, cause of action accrues from the date when hindrance is put to legatee in the management of property bequeathed by will and not immediately after the death of propounder of will.

Petitioner’s case is that the respondent was given in adoption by his father to his father’s eldest brother. After the demise of petitioner’s father, respondent filed a probate case and thereafter petitioner filed a petition under Order VII Rule 11 (d) of CPC and Article 137 of the Limitation Act, 1963 which was dismissed by the lower court holding that respondent’s probate case was not barred as limitation would not start from the date of death of testator. Being aggrieved, the instant petition was filed.

The sole question for determination was as to whether filing of probate case three years after the death of testator was barred under Article 137 of the Limitation Act.

The Court observed that under Article 137 of Limitation Act, the period of limitation is three years from the date and the said period begins to run when the right to apply accrues. Relying on the dictum of  Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 it was held that an application for probate of will is for the court’s permission to perform a legal duty created by a will and is a continuous right which can be exercised any time after the death of deceased, as long as the right to do so survives. As such, the probate case of respondent was maintainable.

In view of the above, the petition was dismissed.[Arun Kumar Agrawal v. Anil Agrawal, 2018 SCC OnLine Pat 2070, decided on 28-09-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.K. Sikri and Ashok Bhushan, JJ. dismissed an appeal filed against the judgment of the Division Bench of the Madras High Court whereby it held it had no jurisdiction to adjudicate the dispute in question.

In short, the real essence of the dispute was that the plaintiffs, resident nationals of Dubai, had filed a derivative action on behalf of a company incorporated in Dubai. They held 34% shareholding in the said company, whereas the defendants held 66% of the shares. The defendants also held around 6.16% shares in Star Health and Allied Insurance Co. Ltd., a company incorporated in Chennai, India. According to the plaintiffs, these shares actually belonged to the company registered in Dubai mentioned above. Since Star Health was incorporated in Chennai, the plaintiffs instituted a suit in Madras High Court to protect an declare the beneficial interest of the Dubai company in the said 6.16% shares. A Single Judge of the High Court admitted the suit; however, on appeal by the defendants, the Division Bench held that it had no territorial jurisdiction to adjudicate in the matter. Aggrieved thus, the plaintiffs filed the instant appeal.

On perusal of the facts, the Supreme Court noted that the plaintiffs made certain averments to the said Dubai Company being the real owners of the shares held by the defendants in the Indian Company, which was denied by the defendants. In reality, it was a dispute between the plaintiffs and defendants, all of who were residents of Dubai. Even the company whose beneficial interest was claimed was incorporated in Dubai. The Court held inter alia, that merely because the dispute is about shares issued by an Indian Company would not lead to the conclusion that cause of action has arisen in India. As a consequence, the Madras High Court has no territorial jurisdiction to adjudicate the matter. Accordingly, the judgment impugned was upheld and the appeal was dismissed. [Ahmed Abdulla Ahmed Al Ghurair v. Star Health and Allied Insurance Company Ltd.,2018 SCC OnLine SC 2554, decided on 26-11-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before a Single Judge Bench of Rajbir Sehrawat, J., in order to quash an FIR registered under Sections 120-B, 406, 420 of Penal Code and other subsequent proceedings arising therefrom.

Facts of the case were such that petitioner wanted to receive distributorship from “Bombay Dyeing” from alleged and was assured of the same but since the alleged refused, petitioner filed a complaint about cheating against the alleged. Petitioner was charged for conspiring under the registered FIR. It was contended by petitioner that Section 138 of Negotiable Instruments Act and Sections 420, 406 of IPC are mutually exclusive thus if the complaint has been filed under Section 138 then FIR under Sections 420 and 406 of Penal Code cannot be lodged for the same cause of action and hence liable to be quashed.

High Court stated that there is no such concept as “same cause of action” or “cause of action” in criminal jurisprudence. Once material against petitioner was found for involvement in a conspiracy then per se FIR cannot be quashed. On the contention of the offences being mutually exclusive, the court was of the view that an accused is liable to be punished from the stage of an attempt to commission of the offence and various offences like this can be charged together. It was discussed that Section 138 has a limited scope of trial and punishment for the offence and if the plea of the offences being exclusive to each other is taken then that would mean that other offences not covered under Section 138 cannot be filed. The Court found no application of Section 300 of Criminal procedure code and Article 20 of the Constitution of India. Therefore, the petition was dismissed as no ground to quash the FIR was found. [Sazid Khan v. State of Haryana,2018 SCC OnLine P&H 1733, decided on 27-07-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. allowed an appeal filed against the order of the trial court whereby the appellant’s plaint was rejected under Order VII Rule 11 CPC.

The appellant had brought a suit against the respondent for recovery of a certain amount. The trial court rejected his plaint mainly on the ground that the respondent was making payments during pendency of the suit, therefore, the amount as claimed by the appellant had vanished. In such circumstance, trial court held that the cause of action did not survive. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court, on perusal of the record, was of the view that the trial court completely erred in rejecting the appellant’s plaint. It was observed that during pendency of a suit, a defendant may always keep on making payments towards the amount claimed in the suit; however, that does not mean that the cause of action in the suit will vanish. In such circumstances, it was furtehr observed, the Court under Order VII Rule 11 will take notice of the subsequent event of repayments and will amend the suit amount and will decree the suit for lesser amount after making necessary adjustments. In view of the aforementioned, the High Court set aside the order impugned and directed the trial court to hear and decide the suit in accordance with law. [ICICI Bank Ltd. v. Vikas Kumar Thakur, RFA No. 901 of 2018, decided on 01-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of P.R. Ramachandra Menon and Devan Ramachandran, J. while hearing an appeal against the order of a Single judge held that denial of pension benefits to a person residing in a particular State, vests him with the locus standi to file the writ petition challenging such denial in that State.

The appellant, who worked in the Assam Rifles in Shillong, was discharged from service on medical grounds which entitled him to disability pension. However, when he was not sanctioned full pension, he made a representation to competent officials but the same was rejected. The appellant submitted that after he was discharged from service, he had no financial resources to continue to live in Meghalaya and therefore he was constrained to come to Kerala.

The only issue involved in the matter was as to whether this Court had territorial jurisdiction to entertain the appellant’s writ petition.

Relying on the dictum of  Apex Court in Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329, the  High Court observed that when a party residing within the jurisdiction of a court was denied the benefit of pension by an authority, a part of cause action could be said to have arisen within the jurisdiction of that Court. It is settled law that under Article 226 of the Constitution of India, writ jurisdiction can be exercised by any High Court, if any part of the cause of action, wholly or in part, arises within its territorial limits.

The Court noted that the request for disability pension was made from Kerala and its rejection was communicated to the petitioner in Kerala. Thus, the appeal was allowed holding that this Court was vested with territorial jurisdiction to entertain the present matter. [K.T. Sudharshanan v. Union of India,2018 SCC OnLine Ker 4003, decided on 28-09-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Ashwani Kumar Mishra, J., dismissed a petition filed against termination of petitioner’s services.

The petitioner in this petition had challenged the order passed by the Commandant, Central Industrial Security Force, Midanapur, West Bengal whereby petitioners service was terminated while he was on probation. Respondent contended the maintainability of the case as no cause of action arose before the Allahabad High Court whereas petitioner submitted that since selection procedure were carried at Allahabad thus part of cause of action arises before the court. Respondent referred to a Division Bench decision of the Court in Sube Singh v. Union of India, Special Appeal No.107 of 2017 where it was observed that just because selection proceedings have occurred under the territorial jurisdiction of a court, that would not constitute a part of cause of action for maintaining a writ petition against the order of termination.

In light of the above submissions, the Court held that the petition was not maintainable as no cause of action arose in the territorial jurisdiction of the Allahabad High Court. [Pramod Kumar v. Union of India,2018 SCC OnLine All 1585, order dated 07-09-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A two-member bench comprising of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, Member (Judicial) dismissed an appeal filed against the order of the National Company Law Tribunal whereby the application under Section 7 of the Insolvency and Bankruptcy Code, 2016 preferred by the Financial Creditor – Punjab National Bank was admitted.

The appellant (Corporate Debtor) submitted, firstly, that the Bank acted neither in the terms of circular and guidelines issued by the Reserve Bank of India nor in the terms of Reserve Bank of India Act, 1934. Secondly, it was contended that the amount due was barred by limitation.

The Appellate Tribunal, on considering the submissions made by the appellant, was of the view that such submissions were untenable. The first submission was rejected holding that in view of admitted default by the appellant, such ground could not be accepted. In regard to the second submission, the Appellate Tribunal held that it was liable to be rejected as there was a continuous cause of action. Furthermore, even if it was accepted that the Limitation Act was applicable in the matter, in such case Article 137 of Part II of the Act would be applicable whereunder a three years’ period counted from the date when the right to apply accrued is applicable. In the instant matter, the right to apply under Section 7 of the Code accrued to the Bank only on 1-12-2016 when the I&B Code came into force; before that the Bank had no right to apply. Therefore, the Appellate Tribunal held, no interfere was called for to the order impugned. The appeal was dismissed sans merit. [Brijesh Kumar Agarwal v. Punjab National Bank, 2018 SCC OnLine NCLAT 305, dated 05-07-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Manoj K. Tiwari, J., dismissed a writ petition as premature holding that there was no scope for interference in the issuance of show cause notice against the petitioner.

It was alleged that the petitioner was an unauthorised occupant over the property in question. A show cause notice was issued against him under Section 4 of U.P. Public Premises (Eviction of Unauthorised Occupants) Act 1972. The petitioner was asked to show cause as to why eviction order not be passed against him. The said show cause notice and the proceedings initiated pursuant thereto were put to challenge in the instant petition.

The High Court, on consideration of the record observed it to be a settled position of law that ordinarily a show cause notice cannot be challenged in a writ petition as it does not give rise to a cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. In the instant case, it was not disputed that the Prescribed Authority was competent to issue show cause notice under the Act. Therefore, the Court found no scope of interference with the show cause notice, and the writ petition was consequently dismissed. [Neeraj Bansal v. Prescribed Authority, 2018 SCC OnLine Utt 608, dated 25-6-2018]

Case BriefsHigh Courts

Delhi High Court: While deciding the plaint filed for claiming permanent injunction and damages against the aggrieved party, the Bench of  Rajiv Shai Endlaw, J. ordered to dismiss the plea against the defendant because of the absence of substantive subject-matter and cause of action.

In the present case, the Court observed that in a suit of defamation, the defamatory words uttered or written are required to be pleaded and if the plaintiff has not pleaded the same, the plaintiff cannot rely on the documents. The document which was produced by the petitioner did not qualify to be defamatory rather than it was found to be complimentary statement which does not amount to defamation. Hence the Court relied upon the facts and evidence produced by the party and found nothing derogatory and defamatory against the defendant and ordered that the plaint does not disclose any cause of action against the defendants and therefore rejected the plea by the petitioner. [Ashish Bhalla v. Suresh Chawdhary, 2016 SCC OnLine Del 6329, decided on 29.11.2016]

Case BriefsHigh Courts

High Court of Delhi: while deciding upon an issue with respect to maintainability of the writ petition on the ground of territorial jurisdiction of the Court, wherein the petitioner had questioned the termination of his contractual services with the respondent, the Bench comprising of Valmiki J. Mehta, J., observed that this Court has no territorial jurisdiction since the legal cause of action is complete only after communication of the order to the petitioner is complete and that would be the place where the territorial jurisdiction arises, and which is Goa in the facts of the present case.

The petitioner, who is a director of Goa Shipyard Ltd (GSL) at Goa, argued that the Delhi High Court has the territorial jurisdiction since the order of termination was issued by the Ministry to the Chairperson of GSL in Delhi, although the letter had not been communicated to him in Delhi but had been communicated to him in Goa. However, the Ministry argued that this Court did not have the territorial jurisdiction as the cause of action in the present case is the communication of the order and without such communication of an order to the person concerned; the cause of action is not complete for filing of a case in a court of law.

On examining the issue as that whether merely because the Government of India has issued its letter at Delhi would this ipso facto give territorial jurisdiction to this Court although this letter has not been communicated to the petitioner at Delhi and has in fact been communicated to the petitioner at Goa in terms of the subsequent letter, the Court observed that the communication of termination is not complete until and unless a person knows about the order of termination of services being passed, and an employee will only know about an order of termination of services only when it is communicated to him, and therefore, since communication is a compulsory link and a sine qua non for arising of the cause of action, hence cause of action will only be therefore complete for filing of judicial proceedings on communication and therefore the place where the communication is made would be the place where the territorial jurisdiction would exist, although the order of may have been passed elsewhere i.e Delhi in the present case.

The Court relying on Sterling Agro Industries Ltd. v. Union of India, decided on 1.8.2011, held that in order that this court should have territorial jurisdiction, cause of action should have arisen in Delhi and since no part of cause of action has arisen in Delhi in the present case because simply existence of an order in the file of the Government at Delhi does not create any right or liability, and which right or liability is created only on communication of the order, and which was communicated to the petitioner in Goa hence this Court has no territorial jurisdiction and the writ petition is therefore dismissed. [P.K.S. Srivastava v. Union of India, 2016 SCC OnLine Del 6149, decided on 1.12.2016]