AIR 2009 MADRAS 1 "K. Murugesh v. Human Rights Commission, Tamil Nadu" MADRAS HIGH COURT Coram : 2 A. K.

GANGULY, C. J. AND F. M. IBRAHIM KALIFULLA, J. ( Division Bench ) K. Murugesh v. Registrar, State Human Rights Commission, Tamil Nadu and Ors. W.P. No. 15648 and M.P. No. 1 of 2008, D/- 11 -8 -2008. Protection of Human Rights Act (10 of 1994), S.13 - HUMAN RIGHTS - Inquiry into complaints under Act Enquiry before Commission cannot be equated with a full-fledged criminal trial, nor can it be equated with a trial under Civil P. C. - Petitioner/ Sub-Inspector Police given opportunity to cross-examine complainant in respect of his complaints - Procedure adopted not unfair - Inquiry can be initiated by Commission without waiting for report or explanation given by higher authority u/S.17. (Paras 4, 5, 6)

K. Venkatramani, Sr. Counsel, M.M. Muthappan for Petitioner; J. Raja Kalifulla, G.P. for Respondents. Judgement A. K. GANGULY :- Heard the learned counsel for the parties. Despite notice, nobody appears for the private respondent. 2. This writ petition has been filed by one Sub-Inspector of Police attached to D-5, Manavalan Nagar Police Station, Tiruvallur District. An enquiry against him is going on before the State Human Rights Commission. The nature of the complaint against the writ petitioner is that acting on a complaint relating to some property disputes, the writ petitioner arrested one Sankar, the third respondent herein, and allegedly handcuffed him and dragged him to the police station through a market place. Receiving such treatment from the police, the said Sankar lodged a complaint with the State Human Rights Commission and the enquiry is on. The writ petition has been filed alleging unfairness in the said enquiry. In elaborating his case on unfairness, the learned counsel for the petitioner has drawn the attention of this Court to page 20 of the additional typed set of papers filed by him. The said typed set would show that he was allowed to cross-examine the original complainant, by name, Sankar. @page-Mad2 3. The learned counsel for the petitioner submitted that the aforesaid procedure, which was followed by the Commission, is contrary to the provisions of the Protection of Human Rights Act, 1993 (hereinafter will be referred to as 'the said Act'). We have looked into the provision of Section 13 of the said Act, which pertains to the powers of the Commission relating to inquiries. The said section is set out below :"13. Powers relating to inquiries -

(1) The commission shall, while inquiring into complaints under this Act, have all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), and in particular in respect of the following matters, namely : (a) summoning and enforcing the attendance of witnesses and examining them on oath; (b) discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any Court or office; (e) issuing commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed. (2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject-matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of Section 176 and Section 177 of the Indian Penal Code (45 of 1860). (3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject-matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), insofar as it may be applicable. (4) The Commission shall be deemed to be a Civil Court and when any offence as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code (45 of 1860) is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973 (2 of 1974) forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the, accused as if the case has been forwarded to him under Section 346 of the Code of Criminal Procedure, 1973 (2 of 1974). (5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of Section 196 of the Indian Penal Code, and the Commission shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)". 4. From a perusal of the aforesaid provision, it is clear that the Commission has been given the power of a Civil Court in certain matters, while it enquires into any complaint under the said Act. It is not in dispute that the two complaints, which were filed by the said Sankar, have been made over to the writ

petitioner. Those complaints by Sankar are at page Nos. 6 and 10 of the additional typed set. So, what the Commission did was that after the aforesaid complaints are made over to the writ petitioner and the writ petitioner has gone through the same, the Commission gave him an opportunity to cross-examine Sankar. We do not find that there was any unfairness on the part of the Commission in adopting the said procedure, whereby the petitioner is given an opportunity to cross-examine the complainant in respect of his complaints, copies of which were already made available to the petitioner. 5. It is obvious that the enquiry before the Commission cannot be equated with a fullfledged criminal trial, nor can it be equated with a trial under the Code of Civil Procedure. From a perusal of Section 13 of the said Act, it is clear that what the Commission had to follow is a fair procedure. In the instant case, the Commission, on receipt of the complaints, gave the petitioner an opportunity to cross-examine the complainant on the basis of those complaints. We are @page-Mad3 of the view that by following the aforesaid procedure, the Commission was only giving the writ petitioner an opportunity to cross-examine the complainant. So by giving an opportunity to the petitioner, the Commission cannot be said to have acted unfairly against the interest of anyone. 6. The other point, which has been urged against the Commission, is that under Section 17 of the said Act, some procedures have been laid down about the inquiry into complaints. The learned counsel for the petitioner submitted that, in the instant case, the Commission issued summons to the writ petitioner without waiting for the report or the explanation given by the higher authority on the complaint made against him by Sankar. We find that under Section 17(ii) of the said Act, the Commission can initiate an enquiry, without even complying with the requirements under Section 17(i), which provides for calling for the report. Therefore, we do not find that the Commission by initiating the proceeding in the instant case against the writ petitioner has committed any error. It is, however, open to the writ petitioner to take such defence available to him on the basis of the report given in the matter by those official superiors. We do refrain from making our comments on the correctness or otherwise of the complaints against the petitioner but, at the same time, we do not feel inclined to stop the proceedings, which is going on before the State Human Rights Commission, which is headed by a retired Chief Justice of Chhattisgarh High Court. 7. We do not find any merit in the writ petition, which is accordingly dismissed. The proceedings before the Human Rights Commission may go on in accordance with law. Consequently, the connected miscellaneous petition is also dismissed. There will be no order as to costs. Petition dismissed. AIR 2009 MADRAS 3 "Irene Isabella v. Authorised Officer, SBI" MADRAS HIGH COURT Coram : 1 K. VENKATARAMAN, J. ( Single Bench )

Irene Isabella v. Authorised Officer, State Bank of India, Udagamandalam Branch and Anr. W. P. No. 37480 of 2007, D/- 14 -7 -2008. (A) Recovery of Debts Due to Banks and Financial Institutions Act (51 of 1993), S.2(g) - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), S.2(J), S.37, S.13 - RECOVERY OF DEBT - SECURITY TRANSACTION - INTEREST - WORDS AND PHRASES - 'Debt' Includes amount payable under decree - Fact that Bank had obtained preliminary decree in suit praying for sale of mortgaged property (Secured asset) and recovery of amount due - Will not bar Bank from proceeding u/S.13(4) SARFAESI Act - Borrower is considered as defaulter since its dues have been classified as non-performing assets - S.37 of SARFAESI Act points out that provisions of Act are not in derogation of any other law for time being in force - Proceedings initiated by Bank by issuing possession notice and subsequent sale notice are not ultra vires, unconstitutional or illegal. (Paras 7, 8, 11) (B) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), S.17, S.13 - Constitution of India, Art.226 - SECURITY TRANSACTION - INTEREST - WRITS Alternative remedy - Writ petition by borrower challenging recovery proceedings taken by Bank under SARFAESI Act - Not maintainable in view of alternative remedy available to borrower u/S.17 of SARFAESI Act. (Para 10) Cases Referred : Chronological Paras 10

AIR 2008 Mad 181 : 2008 CLC 1038 : 2008 AIHC 2412 : 2008 (4) AIR Kar R 285 AIR 2007 Mad 268 20

AIR 2004 SC 2371 : 2004 AIR SCW 2541 : 2004 CLC 577 9 T.R. Rajagopalan, Sr. Counsel for Mrs. Ananda Gomathi Sivakumar for Petitioner; K. Sankaran for Respondents. Judgement ORDER :- The present writ petition has been filed for declaration declaring the possession notice dated 22.8.2007 and the sale notice published on 17.11.2007 in the daily Indian Express on the file of the first respondent is ultra vires, unconstitutional and illegal. 2. The case of the petitioner in nutshell is set out hereunder :(a) The petitioner stood as a guarantor for the facilities availed by one M/s. Hotel Sri Navayuga and she has also mortgaged her property as a collateral security towards the loan availed by the said borrower. However, as the account had turned to NPA, the first respondent had issued a demand notice @page-Mad4 dated 09.07.2003 under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred to as SARFAESI Act). Subsequent to the

said notice, the respondent Bank had filed a suit in O.S.No.108 of 2004 on the file of the learned District Judge, Nilgiris. A preliminary decree was passed in the said suit on 16.11.2005 directing the petitioner to pay the decretal amount with interest. (b) Much later to the issuance of the demand notice, under Section 13 (2) of the SARFAESI Act, the first respondent suddenly proceeded to take possession of the property on 22.08.2007 and further chose to bring the property for sale, by sale notice published in Indian Express daily dated 17.11.2007 giving a go by to the preliminary decree obtained by the Bank. The action of the respondent bank in proceeding under the SARFAESI Act after obtaining the preliminary decree is per se illegal. There cannot be two parallel action after the suit is disposed of. Hence, the writ petition had been filed challenging the possession notice and the sale notice. 3. Counter affidavit had been filed on behalf of the respondents, wherein the following facts have been set out :(a) The petitioner created equitable mortgage for the payment of the loan availed by one M/s. Hotel Sri Navayuga. Since default had been committed by the borrower, after issuance of notice, a suit has been filed before the learned District Judge of Nilgiris, in O.S.No.108 of 2004 praying for sale of the mortgaged property and for recovery of the amount due. The suit was decreed after contest on 16.11.2005 by passing a preliminary decree. The petitioner failed to repay the decretal amount within the time granted by the learned District Judge, Nilgiris. (b) In view of the inordinate delay in recovering the outstanding amount and having regard to the public interest, the Bank issued a notice on 09.07.2003 under Section 13 (2) of the SARFAESI Act, calling upon the petitioner, the guarantor and the borrower to repay the amount due. The petitioner did not make any objection even though she has acknowledged the notice and hence, the Bank took steps under Section 13 (4) of the SARFAESI Act. Now the Bank issued sale cum tender notice by effecting publication. The contention of the petitioner that since the Bank had obtained preliminary decree, it is precluded from taking action under the SARFAESI Act, is without any merit. Section 37 of the SARFAESI Act would point out that the provisions of the SARFAESI Act are not in derogation of any other law for the time being in force. (c) The power of the Bank to take charge of the secured assets and sell the same for realising the dues is not In any way affected by the preliminary decree obtained by the Bank. The outstanding arrears still remain in the books of the Bank as NPA and hence, the proceedings initiated under the SARFAESI Act cannot be said to be violative of any Act or Rules. Further, the SARFAESI Act provides an alternative remedy by filing an appeal under Section 17 of the said Act. Without exhausting the same, the petitioner cannot approach this Court by filing the present writ petition. 4. I have heard Mr. T. R. Rajagopalan, learned Senior Counsel appearing for the petitioner and Mr. K. Sankaran, learned counsel appearing for the respondents. 5. Learned Senior Counsel appearing for the petitioner mainly submitted that since the Bank had obtained a preliminary decree by filing the suit in O.S.No.108 of 2004 before the learned District Judge,

Nilgiris, it is precluded from proceeding under the SARFAESI Act. On the other hand, the learned counsel appearing for the respondents would submit that the proceedings under the SARFAESI Act would nothing to do with the decree obtained in the Civil Court and there is no bar to proceed under SARFAESI Act. 6. Mr. T. R. Rajagopalan, learned Senior Counsel appearing for the petitioner while elaborating his arguments on the contention that the respondent Bank cannot proceed under the SARFAESI Act in view of the preliminary decree obtained by the Bank from the competent Civil Court, had taken me to several provisions of the SARFAESI Act. According to the learned Senior Counsel, Section 2 (zc) and Sections 13 (1) (2) and (4) of the SARFAESI Act refer about secured asset. Since the debt merged with a decree of a competent Civil Court, the decree has to be executed and the debt can no more be considered as a secured asset. Learned Senior Counsel further emphasised that the mortgage created in favour of the Bank is no more in existence since it has merged with the decree of the Civil Court. Learned Senior Counsel further submitted @page-Mad5 that the SARFAESI Act came into effect in the year 2002 and the decree has been obtained by the Bank in the year 2005 and now the respondent Bank cannot enforce the mortgage. 7. However, I am unable to countenance the said argument of the learned Senior Counsel appearing for the petitioner for more than one reasons which are set out hereunder :(A) Section 2 (g) of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993, defines what is debt. It includes the amount payable under a decree also. It is useful to extract Section 2 (g) of the said Act, which reads as follows :"(g) "debt" means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on the date of the application." Since the amount payable under a decree is also considered as debt, the submission of the learned Senior Counsel appearing for the petitioner that since the SARFAESI Act refers secured asset and the debt due to the Bank had merged with a decree, it can no longer be considered as a secured asset inviting an action under the SARFAESI Act is totally unacceptable. (B) Section 2 (j) of SARFAESI Act defines the defaulter and the same is extracted here under :" (j) "default" means non-payment of any principal debt or interest thereon or any other amount payable by a borrower to any secured creditor consequent upon which the account of such borrower is classified as non-performing asset in the books of account of the secured creditor."

In view of the specific stand taken by the respondent bank in their counter that in the books of the Bank, the dues by the borrower have been classified as non-performing asset, the petitioner will have to be considered as a defaulter and nothing prevents the Bank from proceeding under the SARFAESI Act. (C) Section 37 of the SARFAESI Act would point out the provisions of the Act are not in derogation of any other law for the time being in force. Section 37 of the Act is usefully extracted here under :"The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of the Companies Act, 1956 (1 of 1956) the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force." Therefore, the power of the Bank in taking charge of the secured asset and selling the same for realisation of the secured asset is not in any way affected by the preliminary decree that has been obtained by the Bank. Thus, the SARFAESI Act protects and safeguards the interest of the secured creditors and the same is without prejudice to the provisions contained in any other Act. 8. Thus, looking at any angle, the action taken by the respondent Bank in issuing notice under Section 13 (2) or possession notice under Section 13 (4) of the SARFAESI Act and the further action cannot be termed to be illegal or invalid. 9. While upholding the constitutional validity of SARFAESI Act, the Hon'ble Apex Court in the case of Mardia Chemicals Limited v. Union of India (2004) 2 CTC 759 : (AIR 2004 SC 2371) has held that the provisions of the Act are not ultra vires except Rule 17(2) of the Act. It would be useful to extract paragraphs 81, 82 and 83 of the said judgment, which reads here under :"81. In view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair "deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity @page-Mad6 and resources to help in growth of economy of the country and welfare of the people in general which would subserve the public interest. 82. We, therefore, subject to what is provided in paragraph 80 above, uphold the validity of the Act as its provisions except that of sub-section (2) of Section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India. 83. Before we part with the case, we would like to observe that where a secured creditor has taken action under Section 13 (4) of the Act, in such cases it would be open to borrowers to file appeals under

Section 17 of the Act within the limitation as prescribed therefore, to be counted with effect from today." 10. Further, the petitioner could have availed the alternative remedy available under Section 17 of SARFAESI Act. In fact, the Full Bench of this Court reported in 2008 (2) CTC 529 : (AIR 2008 Madras 181) Lakshmi Shankar Mills (P) Ltd. v. The Authorised Officer / Chief Manager, Indian Bank, has held that the remedy of the person who challenges Section 13 (3) notice is only to avail the remedy available under Section 17 of the Act. Paragraphs 12, 20 and 21 of the said judgment are usefully reproduced here under :"12. On a plain reading of Section 17, it is seen that the Tribunal has wide powers to restore possession in favour of the borrower, if such action taken under sub-section (4) of Section 13 is declared invalid. Even where the property is sold or dealt with, pending hearing of the Application under Section 17, the Tribunal is not rendered powerless to restore possession in favour of the borrower, if such action taken under sub-section (4) of Section 13 is declared invalid. In such an eventuality, sub-section (3) of Section 17 gives ample powers to the Tribunal to direct restoration of the possession or restoration of management, as the case may be or to pass such other order, as it may consider proper and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of Section 13. 20. In Misons Leathers Ltd. v. Canara Bank, Chennai 2007(3) LW 500: 2007(4) MLJ 245 : (AIR 2007 Madras 268), the constitutional validity of the amended Section 17 was challenged on the ground that the remedy of filing Application under Section 17 of the Act which is declared to be in the nature of the Suit by the Supreme Court is totally taken away by the amendment and in any event, the remedy is only an empty formality and does not protect the rights of the borrowers, mortgagors and guarantors. Repelling this contention, the Division Bench observed : "10. We are afraid that the contention is totally misconceived. The provisions of Section 17(1) of the Act provides remedy for the borrower/guarantor/mortgagor to challenge the action of the Bank under Section 13(4) of the Act before the Debt Recovery Tribunal. The Debt Recovery Tribunal is required to decide whether the action of the Bank/ Financial Institutions, under Section 13(4) is in accordance with the provisions of the Act and the rules framed thereunder. It is open to the borrower/guarantor/mortgagor to demonstrate before the Debt Recovery Tribunal that resort to Section 13 of the Act is not permissible by law. In a given case, the claim of the Bank/Financial Institutions may be barred by limitation or there may be cases, where the adjustment of the amount paid is not reflected in the notice or the calculation of interest may not be in accordance with the contract between the parties. Needless to say that all such grounds, which render the action of the Bank/Financial Institutions illegal can be raised in the proceedings under Section 17 of the Act before the Debt Recovery Tribunal. 11. Learned Additional Solicitor General and the learned counsel appearing for the Banks and Financial Institutions fairly stated that all the objections which can be legally raised in the reply to the notice under Section 13(2) of the Act can also be raised in the proceedings under Section 17(1) of the Act. It

would be for the Debt Recovery Tribunal to decide in each case whether the action of the Bank is in accordance with the provisions of the Act and is legally sustainable." 21. As can be seen from the Statement of Objects and Reasons of the Securitisation Act, the main purpose of the Securitisation Act, and in particular Section 13 thereof, is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the Court. Therefore, in an Application under Section 17, the Tribunal is concerned only with the validity of the acts of @page-Mad7 the secured creditor in taking possession of the securities and dealing with the same under Section 13. In our opinion, the Division Bench has rightly held that all such grounds, which would render the action of the Bank/Financial Institution illegal, can be raised before the Tribunal in the proceedings under Section, 17. It is for the Tribunal to decide in each case whether the action of the Bank was in accordance with the provisions of the Act and legally sustainable. However, we hasten to add that while considering the question of validity of the action of the Bank, it is not necessary for the Tribunal to adjudicate the exact amount due to the secured creditors. In other words, the purpose of an Application under Section 17 is not the determination of the quantum of claim per se as the Tribunal is concerned with the issue of the validity of the measures taken by the Banks/Financial Institutions under Section 13(4). In our opinion, the judgment of the Division Bench in Misons Leathers Ltd., lays down the law correctly and does not require any reconsideration." 11. Thur., considering the totality of the circumstances, I am of the considered view that the proceedings initiated by the respondent Bank by issuing possession notice and the subsequent sale notice are not ultra vires, unconstitutional or illegal. 12. In the result, the writ petition stands dismissed. However, there is no order as to costs. Consequently, connected petitions are closed. Petition dismissed. AIR 2009 MADRAS 7 "A. Arulin Ajitha Rani v. Principal, Film and Television Institute of T. N." MADRAS HIGH COURT Coram : 2 P. K. MISRA AND M. SATHYANARAYANAN, JJ. ( Division Bench ) A. Arulin Ajitha Rani v. Principal and Film and Television Institute of Tamil Nadu, Chennai and Ors. W. A. No. 875 of 2006, D/- 27 -6 -2008. Constitution of India, Art.42 - Maternity Benefit Act (53 of 1961), S.2 - DIRECTIVE PRINCIPLES MATERNITY BENEFIT - POLICY DECISION - Maternity relief - Benefit of maternity leave - Diploma course in film direction and screenplay writing - Appearance for examination - Attendance in class - Shortage of attendance on account of pregnancy - Cannot be condoned by applying provisions of Art.12(2) of

Convention on the Elimination of All Forms of Discrimination against Women and Maternity Benefit Act Whether such benefit can be extended or not to educational institution is essentially a policy decision to be taken by either the State Government or the Central Government. (Paras 10, 11, 13, 14) Cases Referred : Chronological Paras

2008 (1) CTC 374 (Mad) 3, 12 AIR 2000 SC 1274 : 2000 AIR SCW 969 4.2, 7 6

AIR 1997 SC 3011 : 1997 AIR SCW 3043 : 1997 Lab IC 2890 AIR 1995 Mad 164 3, 12

S. Thirumavalavan, for Appellant; S. Rajasekar, Mrs. Karthika Ashok, for Respondents. Judgement P. K. MISRA, J. :- Heard Mr. Thirumavalavan for the appellant, Mr.S. Rajasekar, Addl. Government Pleader for Respondents and Mrs. Karthika Ashok, who had been appointed as Amicus curiae to assist the Court. 2. The appellant was a student in Film Direction and Screenplay writing in M.G.R. Film and Television Institute of Tamil Nadu, which is a Government institute conducting diploma courses in different fields including the Film Direction. The question relates to shortage of attendance of the appellant during the academic session of 2005-2006, between June 2005 and March 2006 to be precise. It is not in dispute that the rules and regulations relating to attendance of class envisage that a student is required to attend 80% of the classes in the year concerned. Regulations 3.2 and 3.3 are as follows :"3.2 Requirements to appear for Examination : The Examinations will be conducted at the end of the year for the first year subjects and at the end of each semester for semester subjects by the Board of Examinations. A candidate will be permitted to appear for the Board's Examinations, only if : (i) he/she secure 80% attendance in the year/semester concerned (ii) he/she earns a progress certificate from the head of the institution for satisfactorily completing the course of study as required by the regulations, and (iii) his/her conduct was satisfactory during the course of study. @page-Mad8 3.3 Condonation of Attendance : The minimum overall percentage of attendance (in all subjects of the current semester/year put together) required for a candidate to become eligible to write the Board's Examination is 80%.

Under extraordinary circumstances, if there exist genuine and valid reasons, the Principal of the college has been empowered by the Chairman, to condone upto a maximum of 5% shortage to a candidate, subject to the condition that he/she satisfies all the other requirements to appear for the Board's Examination. Under no circumstances a candidate with attendance less than 75% be permitted to write the Board's Examination. The condonement of 5% shortage shall not be done as a routine to all candidates, but only for genuine cases; it shall not be claimed as a matter of right by all candidates." 3. In the present case, according to the Department, the appellant was not permitted to appear at the examination as her attendance was much below the required attendance. The appellant filed W.P.No. 19355 of 2006, which has been dismissed by the learned single Judge under the impugned judgment. Thereafter, initially an order was passed on 18.7.2006 dismissing the writ appeal on merits at the stage of admission. Subsequently, however, Review Appln. No. 99 of 2006 was filed. While considering such Review Application, counsel for the appellant cited before the Division Bench an earlier order of the High Court, which is reported in 2008(1) CTC 374 (Kavitha Rajagopal v. The Registrar, Tamil Nadu Dr. Ambedkar Law University, Chennai and Another), decided on 1.12.2004, to the effect that even if there was no specific provision relating to condonation of delay, a pregnant woman was entitled to get maternity leave benefit in the concerned University and the shortage of percentage in attendance can be condoned in exceptional cases. As a matter of fact, in the aforesaid decision, there was reference to another decision of a learned single Judge reported in 1996 WLR 802 : (AIR 1995 Mad 164) (Nithya v. University of Madras). Taking into consideration the earlier decisions, the Division Bench recalled the earlier order of dismissal and directed the matter to be taken up for hearing. That is how the matter has come before us. 4. Learned counsel for the appellant has contended that in view of the International Conventions recognising the necessity to grant maternity leave to pregnant women and in order to avoid any discrimination, the shortage of attendance is required to be condoned. In the above context, learned counsel for the appellant has referred to Article 12(2) of the Convention on the Elimination of All Forms of Discrimination against Women, which is to the following effect :"12(2) Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation." 4.1 Similarly, learned counsel for the appellant has also placed reliance upon the provisions contained in The Maternity Benefit Act, 1961. 4.2 Mrs. Karthika Ashok, who has been requested to act as Amicus Curiae, has also invited our attention to the aforesaid provisions as well as the decisions of the Supreme Court reported in AIR 2000 SC 1274 (Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Another). 5. Part IV of the Constitution contains various Directive Principles of State Policy. Article 37 provides that the provisions contained in this Part shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Article 42 envisages as under : "42. Provision for Just and humane conditions of work and maternity relief. - The State shall make provision for securing just and humane conditions of work and for maternity relief." Article 51 contained in Part IV the Constitution of India refers to the necessity relating to respecting of the International Conventions. Article.253 envisages the Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. 6. In AIR 1997 SC 3011 : (1997) 6 SCC 241 (Vishaka v. State of Rajasthan) it has been observed as follows :@page-Mad9 "7. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. ..." (Emphasis added) 7. Similarly in AIR 2000 SC 1274 (cited supra), which has been cited by the Amicus curiae, emphasis has been made regarding grant of maternity benefit to the employees. In Vishaka's case, it has not been stated that in spite of clear domestic law on the question, an international convention is required to be followed. In AIR 2000 SC 1274 (cited supra), the importance of grant of maternity relief to the employee, particularly keeping in view the provisions contained in the Maternity Benefit Act, 1961 and the provisions contained in Articles 42 and 43 of the Constitution has been emphasised. But, in none of the decisions it has been laid down that notwithstanding any specific provision available under the domestic law, International Conventions are to be implemented. 8. In the above context, the matter has to be examined. There is no doubt that every educational institution has its own rules and regulations regarding attendance of the students in the classes. It is obvious that such norms are prescribed to ensure that there is regular attendance by the students, with the expectation that by attending the classes either theory or practical, knowledge can be acquired.

9. There is no doubt that the Maternity Benefit Act, 1961 contains several provisions for extending the benefit to the pregnant women in their respective work-field. Section 2 of the Act indicates that the Act applies to (a) every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances and (b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. However, the proviso contemplates that the State Government may with the approval of the Central Government, declare that all or any of the provisions of the Act shall apply to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. 10. Even assuming that an Educational Institution may also come within the aforesaid provisions, there is no dispute that the State Government has not issued any notification declaring that the provisions of the Act would be applicable to the educational institutions. There cannot be any dispute regarding the requirement of grant of maternity benefit to the working women. However, the question is, in the absence of any specific provision applicable to educational institution, whether such provision can be extended. 11. We do not think that in the context in which such provisions have been made for the working women, such provisions can be ipso facto made applicable. Whether such benefit can be extended or not is essentially a policy decision to be taken by either the State Government or the Central Government. 12. In the present case, the learned counsel for the appellant has contended that by applying the above provisions and the International Conventions, the shortage of attendance was required to be condoned as had been done in two earlier occasions by the learned single Judges in the two decisions reported in 1996 WLR 802 : (AIR 1995 Mad 164) (Nithya v. University of Madras) and 2008(1) CTC 334 (Kavitha Rajagopal v. The Registrar, Tamil Nadu Dr. Ambedkar Law University, Chennai and another). 13. In the peculiar facts and circumstances of the case, we are unable to apply the ratio of the said decisions to the present case. Even assuming that such provisions can be made applicable, the concerned student @page-Mad10 could have availed maternity leave of six weeks before the birth of the child and six weeks after the birth of the child. From the factual position, which has been elucidated clearly in the counter affidavit filed in the Review Appln. No. 99 of 2006 and even from the averment made by the appellant herself, it is apparent that the appellant had claimed to have attended the classes till 17.9.2005 and only on that day she was admitted in the hospital and the child was born on 19.9.2005. In other words, it is not the case of the appellant that she was unable to attend the classes because of the pregnancy before 17.9.2005. Similarly, the appellant has stated that she attended the classes after 15.10.2005. During the period

from 17.9.2005 to 14.10.2005, 18 working days were available. Even giving full credit for those 18 days, as has been explained in the counter affidavit, the required percentage would come to about 71% (70.91%). Minimum requirement is 80% with provision for condonation of delay upto 5% i.e., a student having attended 75% or above, can be considered for condonation. No other power is envisaged under the rules and regulations for condonation of further period. Therefore, even assuming that such International Conventions or the provisions of the Maternity Benefit Act could be made applicable, yet the concerned student fell short of the attendance. 14. For the aforesaid reasons, we are unable to persuade ourselves to interfere with the order of the learned single Judge. The question as to whether similar beneficial provisions should be made applicable to the educational institutions is essentially a policy matter left to the wisdom of the legislature and we do not express any opinion in one way or the other. We place on record our appreciation for the valuable assistance rendered by the Amicus curiae as well as the fair manner in which the appeal has been argued by the counsel for the appellant and the respondents. 15. The writ appeal is accordingly dismissed, subject to the observation made above. No costs. Petition dismissed. AIR 2009 MADRAS 10 "Indian Overseas Bank v. Sree Aravindh Steels Ltd." MADRAS HIGH COURT (MADURAI BENCH) Coram : 1 T. SUDANTHIRAM, J. ( Single Bench ) Indian Overseas Bank v. M/s. Sree Aravindh Steels Ltd. and Ors. Crl. O. P. (MD) No. 3102 of 2008, D/- 9 -9 -2008. (A) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), S.14(1) - SECURITY TRANSACTION - INTEREST - MAGISTRATE - Assistance of Magistrate in taking possession of secured asset - Petition for, filed by Bank/secured creditor - Magistrate is not required to give notice to borrower or to third party. (Para 10) (B) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), S.14(1), S.13(3-A), S.17 - SECURITY TRANSACTION - INTEREST - MAGISTRATE - Assistance of Magistrate in taking possession of secured asset - Petition for, filed by secured creditor/Bank - Notice u/S.13(2) sent by Bank and borrower, guarantor also in turn had filed objections - Bank had sent reply giving reasons for non-acceptance of objections of borrower - Mere failure to mention same in petition, no ground to dismiss petition - Even assuming that Bank had not complied with provisions of S.13(3-A) by not communicating reasons for non-acceptance of objections of borrower - Is no ground to refuse relief u/S.14 - Remedy is available to borrower u/S.17. (Para 15)

Cases Referred :

Chronological Paras 14

AIR 2007 (NOC) 1634 (Bom) : 2007 Cri LJ 2544 : 2007 CLC 884 2007 (2) CTC 397 (Mad) 13 2007 (2) CTC 1 (Mad) 9

AIR 2004 SC 2371 : 2004 AIR SCW 2541 : 2004 CLC 577 9, 13 Ms. J. Maria Roselin, for V. Sribalaji, for Petitioner; P. Rajendran, Govt. Advocate (Crl. Side) for Respondent. Judgement ORDER :- This petition is filed praying to set aside the order passed by the learned Chief Judicial Magistrate, Tiruchirappalli dated 11.12.2007 in Crl. M.P.No. 1472 of 2007. 2. The petitioner herein is Indian Overseas Bank, a nationalised bank, who is a secured creditor. The first respondent herein @page-Mad11 is a public limited company, who is a principal borrower and the second respondent is the Managing Director and the third respondent is the Director and also the guarantor and the fourth respondent viz., the Inspector of Police, Thuvakudi Police Station is an unnecessary party. 3. The petitioner herein filed an application before the learned Chief Judicial Magistrate, Tiruchirappalli for taking possession of secured assets under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter called as SARFAESI Act). As, the learned Chief Judicial Magistrate, Tiruchirappalli had dismissed the said application, the petitioner has preferred this petition before this Court under Section 482 Cr.P.C. 4. This being a case of civil nature, the question that arose immediately in the mind of this Court is that whether the application under Section 482 Cr.P.C. is maintainable. Though the petitioner could have preferred a Civil Revision Petition under Article 227 of the Constitution of India, the petitioner has not done it so. Though this is a case of civil nature, an order being passed by the learned Chief Judicial Magistrate, Tiruchirappalli, a revision is maintainable under Section 397 Cr.P.C., since, any order passed by any Magistrate can be challenged by way of revision by the aggrieved person under Section 397 Cr.P.C. Further, when the matter came up for hearing before His Lordship Mr. Justice S. Nagamuthu, Hon'ble Judge referred the matter to a Division Bench to decide the question whether the learned Chief Judicial Magistrate, Tiruchirappalli has got power to entertain an application under Section 14 of SARFEASI Act. The matter was heard by the Division Bench and decided as follows : "Therefore, holding that the term 'Chief Metropolitan Magistrate' will have reference to a metropolitan area and the term 'Chief Judicial Magistrate' will have reference to an area outside a metropolitan area,

and therefore, the Chief Judicial Magistrate, Tiruchirappalli has got power to entertain a petition under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, we direct the Registry to place the matter before the concerned Court, for further proceedings". 5. Now, it is for this Court to decide whether the order passed by the learned Chief Judicial Magistrate, Tiruchirappalli is to be confirmed or liable to be set aside. As per Section 14 of SARFAESI Act, a secured creditor may for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him, take possession of such assets and document relating thereto and forward such assets and documents to the secured creditor. 6. In this case, the petitioner-bank filed an application before the learned Chief Judicial Magistrate, Tiruchirappalli under Section 14 of SARFAESI Act and the learned Chief Judicial Magistrate, Tiruchirappalli also issued summons to the respondents and the third respondent alone filed a counter and the learned Chief Judicial Magistrate, Tiruchirappalli after hearing the learned counsel appearing for the petitioner and third respondent, dismissed the application mainly for the reasons as per the order, which is as follows : "10. On behalf of the petitioner a notice u/S. 13(2) having been issued, even after its receipt the beneficiaries of the loan has not repaid the loan. The petitioner has filed this petition u/S. 14(1). The petitioner sought for an order may be passed as prayed for taking action against Borrowers u/S. 13(2). "the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within 60 days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section(4).." Action has been initiated against the respondents under this provision. 11. Notice has been issued under the above said provision. The beneficiaries have not repaid the amount towards principal or interest. By an Amendment to the Special Act, Sec. 13(3-A) has been introduced under Act 30 of 2004 dated 11.11.2004. This amendment came into force from the date @page-Mad12 of amendment. It is as follows : 3A :- "If, on receipt of the notice under sub-section (2) the borrower makes any representation or raises any objection and if the secured creditor comes to the conclusion such representation or communicate within one week of receipt of such a representation or objection the reasons for non-acceptance of the representation or objections to the borrower".

It has to be determined whether under this provision the secured creditor has considered the reply given by the Respondent/ Debtors after carefully considering the reply or objections and intimate the beneficiaries that the appeal or objection cannot be acceptable or tenable and he shall communicate its reasons for not accepting the reply within one week. Whether this procedure has been followed or not as by the petitioner-bank? There is no mention in the petition about the compliance of this rule. Therefore this Court cannot grant any relief u/S. 14(1) of the Special Act. This Court is of the opinion that the petition is not maintainable u/S. 14(1) of the Special Act and the petition filed u/S. 14(1) by the Petitioner Bank as Secured Creditor is Hereby ordered to be dismissed". 7. The learned counsel appearing for the petitioner submitted that the learned Chief Judicial Magistrate, Tiruchirappalli has erred by giving notice to the respondents and also by taking into consideration, the counter filed by the third respondent. The learned counsel appearing for the petitioner further submitted that when a petition is filed under Section 14 of SARFAESI Act, the concerned Magistrate is not required to give notice to the borrower or to the third party, but he has to only verify from the bank or financial institution whether the notice under Section 13(2) of SARFAESI Act was given or not and whether the secured assets fall within his jurisdiction and there shall be no adjudication of any kind at that stage and it is only if the above conditions are not fulfilled the concerned Magistrate can refuse to pass an order and not otherwise. 8. The learned counsel appearing for the petitioner relied on the decision of this Court in M/s. Sundaram Home Finance Limited v. K.Raja in C.R.P.PD. No.1559 of 2004, wherein it is held as under : "2. Mr. AR. L. Sundaresan, learned counsel appearing for the petitioner took me through Section 13(2) and (4) and Section 14 of the said Act and contended that, in deciding to grant the relief made to the Court under Section 14 of the said Act, no notice need be sent to the other side. A reading of Section 14 of the said Act do show that the contention of the learned counsel for the petitioner is right. Accordingly, the order of the lower Court so far as it relates to ordering notice to the respondent alone is set aside. The lower Court is directed to act as per the requirement of Section 14 of the said Act immediately on production of a copy of this, order. The revision stands disposed of accordingly". 9. The learned counsel appearing for the petitioner further relied on the decision of the Division Bench of this Court in Sundaram Home Finance Limited, rep. by its Manager-Recovery, Madhavan, 46, Whites Road, Royapettah, Chennai-14 v. 1. The Tahsildar, Hosur 2. The District Collector, Krishnagiri reported in 2007 (2) CTC 1, wherein it is held as follows : "9. The words of the section and the law laid down in Mardia Chemical's case, AIR 2004 SC 2371 (supra) do not envisage a notice under Section 13(4). Reasons for not accepting the objection are to be communicated before taking measures like taking over possession of the secured assets. This is the fairness that is required of the lender. But if the borrower has not responded to the notice under Section 13(2), the lender has no occasion to communicate his reasons, necessarily the tender proceeds to the next stage. The borrower gets a right to challenge the action only after any of the measures contemplated under Section 13(4) have been taken. It is clear from the paragraphs extracted above from Mardia Chemical's case that the communication of the reasons may not be taken to give an

occasion to resort to such proceedings which are impermissible under the Act. A person who does not respond to the notice under Section 13(2) of the Act should be considered to be aware of the consequences that will follow. In any event, it is not possible to hold that a borrower who has not responded to the notice under Section 13(2) will be entitled to a notice under Section 13(4), whereas, in respect of a borrower who has responded to a notice under Section 13(2) and has had the rejection communicated by the bank, the bank can proceed straightaway to take the measures contemplated under Section 13(4). There is no room for visualizing two such courses of action. This @page-Mad13 will be reading words into the Section, which the legislature had not used. It is not our duty to legislate. The Supreme Court also was aware that "some of the provisions may be a bit harsh for some of the borrowers", yet has not, in its judgment, held that a pre-Section 13(4) notice must be issued. We are unable to read a requirement of such notice either in the Section or in the Judgment". 10. In view of the decision rendered by the Division Bench of this Court cited supra, this Court now holds that no notice is necessary to the borrowers and in such a case even though the notice was issued by the learned Chief Judicial Magistrate, Tiruchirappalli, it is not necessary to give notice to the respondents 1 to 3 to decide the issue. 11. The learned counsel appearing for the petitioner further submitted that the petitioner had sent a notice under Section 13(2) of the Act and also received objections from the respondents 1 to 3 and the petitioner also in turn had sent a reply, giving reasons for non-acceptance of the objections of the borrower. But mere failure to mention it in the petition would hot affect the requirement of the petition. 12. The learned counsel appearing for the petitioner further submitted that even assuming that the petitioner has not communicated to the borrower, the reasons for non-acceptance of the representation or objection of the borrower, the only remedy available to the borrower is under Section 17 of the SARFAESI Act, after issuance of the possession notice. 13. The learned counsel appearing for the petitioner again relied on the decision of the Division Bench of this Court in Industrial Development Bank of India Ltd., by Deputy General Manager and the Authorised Officer, 115, Anna Salai, Saidapet, Chennai-15 v. Kamaldeep Synthetics Ltd., rep. by its Managing Director, V. Nandakumar, No. A-1, Alankar Apartment, No. 12, Raman Street, T. Nagar, Chennai-600 017 reported in 2007(2) CTC 397, wherein it is held as follows : "6. Ms. J. Anandhavalli, learned counsel appearing for the respondent, however, submitted that there has been total non-compliance of Section 13(3-A) of the SARFAESI Act and, therefore, the entire proceedings are vitiated. Learned counsel submitted that in response to the notice dated 20.12.2005 issued under Section 13(2), a reply letter dated 16.02.2006 was sent by the respondent raising objections to the said notice. The reasons for non-acceptance of the objections raised were communicated by the appellant-bank only by letter dated February 22, 2006. However, before even communicating the reasons, the appellant-bank issued the possession notice on February 20, 2006.

According to the learned counsel, the notice for possession under Section 13(4) of the SARFAESI Act could be issued by the bank only after the reasons for non-acceptance of the objections were communicated by the appellant-bank to the respondent-borrower and therefore, notice under Section 13(4) is illegal and valid. 7. We are unable to accept the submission of the learned counsel for the respondent. Section 13(3-A) of the SARFAESI Act, which was incorporated by the Amendment Act 30 of 2004, provides that if, on receipt of the notice under sub- section (2), the borrower makes any representation or raises any objection, the secured creditor must consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for nonacceptance of the representation or objection to the borrower. This provision is obviously incorporated in the light of the decision of the Supreme Court in Mardia Chemicals Ltd. v. Union of India, 2004(2) CTC 759 : 2004(4) SCC 311 : (AIR 2004 SC 2371). 8. In Mardia Chemicals case, the Supreme Court held that under Section 13(2) of the SARFAESI Act, it is incumbent upon the secured creditor to serve sixty days notice before proceeding to take action under sub-section (4) of Section 13 of the SARFAESI Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief that may be, must be communicated to the borrower. The reasons so communicated shall only be for the purpose of the information/knowledge of the borrower without giving rise to any right to approach the DRT under Section 17 of the SARFAESI Act, at that stage. The Court explained that communication @page-Mad14 of reasons not to accept the objections of the borrower is for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor, who intends to resort to harsh steps of taking over the management/ business of namely, the secured assets without intervention of the Court. Such person in respect of whom steps under Section 13(4) of the SARFAESI Act are likely to be taken cannot be denied the right to know the reason for non-acceptance of his objections. This will be in keeping with the concept of right to know and lender's liability of fairness to keep the borrower informed particularly of the developments immediately before taking measures under sub-section (4) of Section 13 of the SARFAESI Act. The Court, however, made it clear that as per the provisions of the SARFAESI Act, the borrower will not be entitled to challenge the reasons communicated or the likely action of the secured creditor at the stage of communication of reasons, unless his right to approach the DRT as provided under Section 17 of the SARFAESI Act matures on any measure having been taken under sub-section (4) of Section 13 of the SARFAESI Act. 9. The proviso to sub-section (3-A) of Section 13 of the SARFAESI Act makes it abundantly clear that the reasons so communicated or the likely action of the secured creditor at the stage of communication of

reasons shall not confer any right upon the borrower to prefer an application to the DRT under Section 17 or the Court of District Judge under Section 17-A of the Act. Thus, the basic object of sub-section (3A) of Section 13 of the SARFAESI Act is to ensure the element of transparency and fair play in the implementation of the provisions of the SARFAESI Act. Learned counsel for the respondent is unable to demonstrate prejudice or loss that is likely to be caused to the respondent by reason of the possession notice given to it, earlier to the communication of the reasons for non-acceptance of the objections raised by the borrower. In our opinion, at the most, it would amount to a mere irregularity and having regard to the facts and circumstances of the case, we are satisfied that the appellant-bank has substantially complied with the provisions of Section 13(3-A) of the SARFAESI Act". (Emphasis supplied) 14. The learned counsel appearing for the petitioner also relied on the decision of the Division Bench of Bombay High Court in Trade Well, a Proprietorship firm and Mr. Suniel K. Mehta, Proprietor of Trade Well v. Indian Bank, a Body corporate consulted Under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 and The State of Maharashtra in Crl. W. P. Nos. 2767 of 2006 and 27, 124 and 343 of 2007, (Reported in AIR 2007 (NOC) 1634 (Bom) wherein it is held as follows : "67. When the bank takes any measures under Section 13(4), on account of failure of the borrower to repay the liability is already crystallized. Similarly when the secured creditor approaches the CMM/DM for assistance to take possession of the secured asset, the liability having been crystallized, there can be no adjudication about it at that stage. Possession has to be taken by non-adjudicatory process. There is no question of pointing out to the CMM/DM at that stage that the person who is to be dispossessed is a tenant, or that he has a prior registered sale deed or that in case of simple mortgage, ownership rights are not transferred; that the mortgagee is only entitled to an obligation to pay and, hence, possession cannot be taken or that such a course will improve or change the contract etc. Grievance that reasons for not accepting the objections were not communicated can also not be raised at that stage because consideration of reply is in the realm of adjudication which cannot be done under Section 14. Besides as per proviso to Section 13 (3-A) and explanation to Section 17, non-communication of reasons to the borrower does not confer on the borrower or any person right to prefer an application under Section 17 at the stage of communication. This is the scheme of the NPA Act. It is so framed to achieve its object. At first blush this may appear harsh. But it is not so. The borrower and the third party is not remedy-less. Remedy is provided in Section 17 where appropriate relief can be given to them. It is after measures under Section 13(4) are taken that an application under Section 17 can be filed by a borrower or any person and in that application, all grievances including the grievance that reasons were not communicated can be voiced. Prior to that, at no point of time any grievances can be raised. Section 17 offers an adequate remedy. We shall advert to Section 17 a little later."... ... 85. In our opinion, at the time of passing order under Section 14 of the NPA Act, the @page-Mad15

CMM/DM will have to consider only two aspects. He must find out whether the secured asset falls within his territorial jurisdiction and whether notice under Section 13(2) of NPA Act is given or not. No adjudication of any kind is contemplated at that stage. ..... .... 90. Following conclusions emerge from the above discussion : 1. The bank or financial institution shall, before making an application under Section 14 of the NPA Act, verify and confirm that notice under Section 13(2) of the NPA Act is given and that the secured asset falls within the jurisdiction of CMM/DM before whom application under Section 14 is made. The bank and financial institution shall also consider before approaching CMM/DM for an order under Section 14 of the NPA Act, whether Section 31 of the NPA Act excludes the application of Sections 13 and 14 thereof to the case on hand. 2. CMM/DM acting under Section 14 of the NPA Act is not required to give notice either to the borrower or to the 3rd party. 3. He has to only verify from the bank or financial institution whether notice under Section 13(21 of the NPA Act is given or not and whether the secured assets fall within his jurisdiction. There is no adjudication of. 4. It is only if the above conditions are not fulfilled that the CMM/DM can refuse to pass an order under Section 14 of the NPA Act by recording that the above conditions are not fulfilled. If these two conditions are fulfilled, he cannot refuse to pass an order under Section 14. 5. Remedy provided under Section 17 of the NPA Act is available to the borrower as well as the third party. 6. Remedy provided under Section 17 is an efficacious alternative remedy available to the third party as well as to the borrower where all grievances can be raised. 7. In view of the fact that efficacious alternative remedy is available to the borrower as well as to the third party, ordinarily, writ petition under Articles 226 and 227 of the Constitution of India should not be entertained. 8. In exceptional cases of gravest injustice, a writ petition could be entertained by this Court. 9. Great care and caution must be exercised while entertaining a writ petition because in a given case it may result in frustrating the object of the NPA Act. 10. Even if a writ petition is entertained, as far as possible, the parties should be relegated to the remedy provided under Section 17 of the NPA Act before the DRT by passing an interim order which will protect the secured assets. Adjudication and final order should be left to the DRT as far as possible". (Emphasis supplied)

15. As per the above said principles, the conclusion of the learned Chief Judicial Magistrate, Tiruchirappalli that the petitioner has not complied with the provision of 13(3-A) of SARFAESI Act and therefore the relief cannot be granted under Section 14(1) of the Act, is incorrect. 16. In the result, the order passed by the learned Chief Judicial Magistrate, Tiruchirappalli in Crl.M.P.No. 1472 of 2007 dated 11.12.2007 is set aside and the learned Chief Judicial Magistrate, Tiruchirappalli is directed to consider the application afresh on the basis of the above principles laid down and proceed according to law. The petitioner is also entitled to file additional materials, if available. Accordingly, this petition is allowed. Petition allowed. AIR 2009 MADRAS 15 "T. N. Industrial Investment Corpn. Ltd. v. Sudarsanam Industries" MADRAS HIGH COURT Coram : 2 M. CHOCKALINGAM AND R. SUBBIAH, JJ. ( Division Bench ) The Tamil Nadu Industrial Investment Corpn. Ltd. v. M/s. Sudarsanam Industries and Ors. O. S. A. No. 80 of 2004, D/- 9 -7 -2008. Contract Act (9 of 1872), S.128, S.129, S.130 - CONTRACT - SURETY - Surety's liability - Continuing guarantee - Revocation of - So long as liability of principal debtor is available, the continuing guarantee will also be coextensive - However, surety can revoke continuing guarantee by issuing one month's notice - Once notice revoking guarantee is issued by surety liability of surety would fasten only upto that date and not thereafter - Further, notice demanding claim amount made after period of 3 years from date of termination letter of surety - Is time barred. (Paras 11, 12, 13)

Mrs. Rita Chandrasekaran for M/s. Aiyar and Dolia for Appellant; S. Subbiah for R. @page-Mad16 Gopinath for Respondents. Judgement M. CHOCKALINGAM, J. :- This appeal challenges an order of the learned single Judge of this Court in O.P.No.552 of 1997, whereby the claim made by the appellant herein for recovery of sum of Rs. 12,56,021.00, was dismissed. 2. The petitioner filed the petition with specific allegations that a loan was availed by the first respondent, who is the principal debtor, for which the respondents 2 and 3 stood as guarantors; that the principal debtor executed a loan agreement along with the deed of hypothecation on 4.9.1984; that the respondents 2 and 3 have executed deed of guarantee on the same day; that it was agreed between

the parties that the loan should be repaid in instalments; that there was a default and hence the loan was foreclosed on 08.01.1993; that despite repeated demands, the loan was not paid and hence in exercise of powers vested upon the petitioner, the hypothecated assets were seized and they were brought for public auction on 15.12.1994, which yielded sale proceeds of Rs.5,75,000/-, which were given credit to the said loan and there was a balance of Rs. 12,56,021/-, as found in the claim; that despite lawyer's notice, it was not paid and under these circumstances, the claim was made as against the respondents 1 to 3 that they are jointly and severally liable to repay the entire outstanding amount and hence this original petition was filed. 3. This original petition was resisted only by the respondents 2 and 3, inter-alia, stating that it is true, they stood as guarantors for the loan availed by the principal debtor, the first respondent; that they sent a letter on 20.04.1987 to the petitioner informing that the state of affairs of the principal debtor concern was bad and was not alright and hence they were not willing to continue to be the guarantors and therefore, their surety should be terminated and further, if the said state of affairs were allowed to continue, it would be detrimental to the interest of the petitioner and hence immediate action was necessary; that despite the same, the petitioner did not take any steps at all; that on the contrary, the property was brought for sale by public auction in the year 1994, but the same was also not informed to the respondents 2 and 3; that had they been informed about the same, the assets could have been sold for higher price; that on 27.12.1991, a notice was issued making a demand on the respondents 2 and 3; that apart from that, the original petition has been filed in the year 1997; that in the instant case, it is true, as per the agreement, it was a continuing guarantee, but it came to be terminated by way of notice in the year 1987; that demand was made after a period of three years and that the O.P. was filed out of time and hence their liability has come to an end and hence this original petition has got to be dismissed. 4. The learned Single Judge framed necessary issues and on enquiry, has dismissed the original petition in entirety and under these circumstances, the appellant/petitioner has brought forth this appeal before this Court. 5. The questions that would arise for consideration are : a) whether the claim made by the appellant as against the respondents 1 to 3 could be ordered and whether the appellant is entitled to have the claim of Rs. 12,56,021/-? b) So far as guarantee was concerned, whether the termination of guarantee by the respondents 2 and 3 is valid and accepted in law? c) Whether the plea of limitation as put forth by the respondents 2 and 3 could be accepted in law? 6. Advancing arguments on behalf of the appellant, the learned counsel would submit that the first respondent availed loan on 4.9.1984 and also executed a deed of hypothecation on the very day and the respondents 2 and 3 have also executed a guarantee deed on the very day, which are all the facts admitted; and that a reading of the guarantee deed would clearly reveal that it was a continuing guarantee. The learned counsel took the court to Section 128 of the Indian Contract Act, which speaks

about the Surety's liability and also Section 129 of the Act, which speaks about the continuing guarantee and would add that a very reading of the above provisions would clearly indicate that a guarantee which extends to a series of transactions is called a continuing guarantee; that in the instant case, as admitted by the respondents, it was a continuing guarantee; that if to be so, so long as the liability of the principal debtor was available, the guarantee would also continue; that in the instant case, they have actually executed a deed of guarantee also; and that the learned Single Judge has actually relied on clause 2 as found in the guarantee agreement. @page-Mad17 7. Relying on clause 2 of the guarantee agreement, the learned counsel would state that the guarantor can come out from the liability provided he makes settlement of principal and interest accrued at that time, but in the instant case, they have not done so; that according to both the respondents, they have actually issued notice of termination of guarantee in the year 1987, but it was not actually received; that even assuming that such a notice was issued in the year 1987, the notice by itself will not terminate the continuing guarantee; that further in a given case like this, so long as the amounts are not paid or settled by the principal debtor, in view of the continuing guarantee originally accepted and agreed by the respondents 2 and 3, it would continue not only by operation of law, but also as per the agreement entered into between the parties and further, in this case, no question of limitation of three years would arise and that all the contentions put forth by the respondents' side should have been rejected in view of the settled proposition of la and hence the appeal has got to be ordered. 8. The court heard the learned counsel for the respondents on the above contentions. The learned counsel, in short, would submit that in the instant case, what has got to be applied is the provisions what is found under Sections 128 and 130 of the Indian Contract Act; that it is not in controversy that there was an agreement entered into between the parties; that the respondents 2 and 3 have executed a deed of guarantee; that the guarantee, which was originally a continuing one, was put an end by way of termination letter, dated 20.04.1987; that a reading of letter would clearly reveal that the plaintiff corporation was cautioned that the industry was not running to the satisfaction and they did not want to continue as surety any further and that they themselves got relieved of from the surety; that despite the letter, there was no action taken by the appellant's side, but they kept calm for the reasons known to them; that P.W. 1; at the time of enquiry, has gone to an extent of saying that no such letter was received, but it has been actually acknowledged and the acknowledgment was also filed. 9. Added further the learned counsel that the first demand notice was made only on 27.12.1991; that on receipt of the same, a reply was made under Ex.R.4 and it refers to the notice issued in the year 1987 itself; that the demand notice was made after a period of 3 years from the date of termination letter; that further, the original petition was filed in the year 1997 and that too after the demand was made in the year 1991 and thus, it was barred by time and under these circumstances, the learned Single Judge was perfectly correct in coming to a conclusion that it was barred by time and hence the appeal has got to be dismissed. 10. The Court has paid its anxious consideration on the submissions made.

11. It is not in controversy that a loan was availed by the first respondent, principal debtor from the appellant corporation, in respect of which, he executed a letter of hypothecation and the respondents 2 and 3 have executed a guarantee deed on 04.09.1984. A perusal of the documents would clearly indicate that the letter of guarantee executed by respondents 2 and 3 on 04.09.1984 was actually the one continuing guarantee. At this juncture, it would be more apt and appropriate to reproduce Sections 128 and 129 of the Indian Contract Act, which reads as follows : "128. Surety's liability. - The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. 129. "Continuing guarantee".-A guarantee which extends to a series of transactions is called a "continuing guarantee". A reading of the above provisions would make it clear that so long as the liability of the principal debtor is available, the continuing guarantee will also be co-extensive. Now, at this juncture, the learned counsel for the appellant relied on clause 2 of the guarantee agreement, which reads as follows : "The Guarantors may at any time upon giving one month's notice in writing to the Corporation require the Corporation to transfer to the Guarantors the said Mortgage Debt and interest and all securities for the same upon the Guarantors paying to the Corporation the amount then owing upon the security of the mortgage by way of principal interest and other monies and also all costs, charges and expenses incurred by the Corporation by way of and incidental to such transfer." A reading of the said clause would clearly reveal that the guarantor can issue one month notice for the purpose of transfer of @page-Mad18 guarantee. Now, at this juncture, it is pertinent to point out that this clause is available in the ordinary course, but in the instant case, the circumstance what is noticed by the court, is actually the letter that was issued by the respondents 2 and 3 on 20.04.1987, which reads as follows : "We undersigned are the sureties for the above mentioned Industry which borrowed 3 lakhs and 25 thousand from Tamilnadu Industrial Investment Corporation during 1984. Of late due to mismanagement, the Industry is not running to our satisfaction and we don't want to continue as sureties any further as such we are getting ourselves hereby relieved. If this state of affairs are allowed to continue it will be detrimental to the interest of Tamil Nadu Industrial Investment Corporation. Please take necessary immediate action." From a reading of the letter, two things are made clear. First of all, the respondents 2 and 3 have come forward to state that they are relieved from the surety and that they have put the petitioner/appellant on notice. Secondly, the petitioner/appellant was also cautioned that they should immediately take

necessary action for the recovery of the sum, since it would be detrimental to the interest of the appellant corporation. 12. At this juncture, it is pertinent to point out that after receiving such a letter, the appellant/petitioner kept quiet. On the contrary, when the matter came before the Court, P.W. 1, the responsible Officer of the Corporation came forward to state that no such letter was received. But, the letter was actually produced before the Court. This letter would also contain the acknowledgment of the appellant Corporation. When such a caution was made, why they kept quiet remained unknown. Further, in a given case like this, the question is as to how the continuing guarantee could be put an end or terminated. It would be apt and appropriate to reproduce Section 130 of the Indian Contract Act, which reads as follows : "130. Revocation of continuing guarantee.-A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor." From a reading of the above would make it clear that even in the case of continuing guarantee, it can be revoked by the surety by issue of notice to the creditor as one done in this case on 20.04.1987. Thus, once such a notice has been issued, the liability of the respondents 2 and 3 would fasten only up to that date and not thereafter. Further, the contention put forth by the learned counsel for the appellant that since it was continuing guarantee and the liability of the guarantor would be co-extensive with that of the principal debtor and hence when the claim is made against the principal debtor, the guarantors are also liable, can be accepted in the ordinary course. In a given case, where continuing guarantee is actually terminated by issuing notice as contemplated under Section 130 of the Act as done in this case, the court is unable to appreciate the said contention. Thus, the continuing guarantee, though actually agreed between the parties under the deed of guarantee, it was put an end by way of issuing notice by the respondents 2 and 3 as noticed under Ex.R.2. 13. The next question that would arise for consideration is whether the claim is barred by limitation. As contended by the learned counsel for respondents 2 and 3, the court has to answer in affirmative for the reason that there was notice issued by the respondents 2 and 3 on 20.04.1987 as referred to above, but the first demand notice was made only on 27.12.1991, i.e. after a period of 4 years. That apart, after the demand was made in the year 1991, the original petition was filed in the year 1997. All would go to show that despite the fact that there was continuing guarantee and the termination of notice was issued by the respondents 2 and 3 on 20.04.1987, the demand was made only in the year 1991, after a period of 4 years and the original petition was also filed after a period of 6 years and hence, all would go to show that it was thoroughly time barred, since the respondents 2 and 3 were relieved of the liability. 14. The learned Single Judge has dismissed the entire original petition and the appeal has also been filed against the dismissal. But, when the appeal is pending, so far as the first respondent is concerned, no steps were taken and hence the appeal has already been dismissed against the first respondent. Under these circumstances, now the entire appeal fails and the same is dismissed accordingly. No costs. Appeal dismissed.

@page-Mad19 AIR 2009 MADRAS 19 (DB) "S. Sivagamiammal v. M/s. Sagar Constructions" MADRAS HIGH COURT Coram : 2 M. CHOCKALINGAM and M. VENUGOPAL, JJ. ( Division Bench ) S. Sivagamiammal v. M/s. Sagar Constructions etc. O.S. A. Nos.202 and 203 of 2006, D/- 9 -9 -2008. Insolvency Act (3 of 1909), S.9(2) - INSOLVENT - DECREE - Insolvency notice - Notice can be sustained only if there is a decree or an order for payment of money - Terms of decree conferring a right on parties to make a claim for money against other for non-fulfilment of obligations imposed upon them under terms of the compromise - It was not a decree for payment of money or any ascertained sum but can be termed as composite decree - Insolvency notice not sustainable. (Paras 8, 11) Cases Referred : Chronological Paras

AIR 2007 SC 168 : 2006 AIR SCW 5718 : 2006 CLC 1655 11 N.R. Chandran, S.C., for P. Hari Babu, for Appellant; R. Krishnaswami, S.C., for Srinath Sridevan, for Respondents. Judgement M. CHOCKALINGAM, J. :- These two appeals have arisen from a common order of the learned Single Judge of this court made in Application Nos.234 and 235 of 2005 in Insolvency notices in I.N.Nos.187 and 184 of 2004. 2. The circumstances under which these appeals have arisen could be stated thus : A suit in C.S.No. 895 of 2000 was filed by M/s. Sagar Constructions and Mr. M. K. Mathivathanan, who were applicants, against the respondents Sivagamiammal and another for a declaration that the deed, dated 10.7.2000 executed by the respondent in the applications, namely the first defendant in the suit, was void and inoperative and also for consequential permanent injunction to restrain the defendants from taking any action on the strength of the said document. The parties to the suit entered into a memorandum of compromise, pursuant to which a decree came to be passed. The said Sivagamiammal, calling herself as decree holder and terming the said M/s. Sagar Constructions and Mathivathanan as judgment debtors, filed insolvency notice petitions, stating that it was a money decree; that they have not paid the decree debt and hence they were liable to answer the insolvency notices. Notices were ordered in those petitions by the Master of this court on 23.12.2004. On service of notice, the said Mathivathanan and M/s. Sagar Constructions made application Nos. 234 and 235 of 2005, seeking to set aside the said insolvency notices. Both the applications were taken up for enquiry by the learned Single Judge, who on consideration of the submissions made and looking into the materials available, ordered

that the insolvency notices were unsustainable and accordingly, set aside the same. Hence, these two appeals have arisen at the instance of the said Sivagamiammal, who took insolvency notices. 3. The only question that would arise for consideration in these appeals is that whether the applicants, who are respondents in these appeals, are liable to honour insolvency notices in question? 4. Advancing arguments on behalf of the appellant, the learned Senior Counsel would submit that the point for consideration framed by the learned Single Judge was totally irrelevant insofar as the applicability of provisions of the Insolvency Act was concerned; that the Court has misdirected itself in having attached undue significance to the extrinsic nature of the decree under which the claim is stated to have arose for invoking the provisions of the Insolvency Act; that irrespective of the ex facie nature of the decree, if the terms thereof give rise to a claim for money whether in the nature of or on account of mesne profits, damages for use and occupation, maintenance, annuity, etc., the claim would nevertheless constitute a debt enabling a creditor to invoke the insolvency jurisdiction; that when the respondents have failed to satisfy any of the grounds enumerated in Section 9(5) of the Act, the applications filed by them should have been dismissed; that the appellant had sought execution of the compromise decree in E.P.Nos. 133 to 135 of 2003 only after the failure on the part of the respondents to perform their decretal obligations and after the expiry of the time stipulated for that purpose; that on the date when the insolvency proceedings were initiated, the decree ripened into an executable decree, giving rise to a money claim, which could be worked out in terms thereof. 5. The learned Senior Counsel would further submit that the learned Single Judge was not correct in holding that the decree under which debt arose is a composite decree @page-Mad20 and not a decree for payment of money; that the phraseology "decree or order for the payment of money" contained in Section 9(2) of the Insolvency Act (Act 3 of 1909) would also take within its ambit any kind of money claim whether in the nomenclature of mesne profits, damages for use and occupation, other kind of compensation etc.; that as could be seen from the terms of the compromise decree, it would be quite clear that the decree was as much as executable as a decree for payment of money; that since applications are filed under Section 9(5) of the Act to set aside the insolvency notices, the court should consider only the merits of the application only on the grounds provided thereunder; that the terms Creditor under the Insolvency Act means and includes a Decree holder, debt would include judgment debt and Debtor would include judgment debtor and under these circumstances, the notices should not have been set aside and that the setting aside of the notices was not in conformity with the tenor and spirit of the provisions of the Insolvency law; that the observation made by the learned Single Judge that the claim under Clause 6 of the decree was subject to clauses 1 to 5, was factually erroneous and equally, the findings in relation to clauses 14 and 19 of the decree; that since the respondents have failed to perform their obligations, the decree became executable and under these circumstances and taking into consideration the said vital aspects, the learned Single Judge should have dismissed the applications, but has not considered the same in the proper legal perspective and

hence the order of the learned Single Judge has got to be set aside and both the appeals have got to be ordered. 6. The learned Senior Counsel for the respondents, in answer to the above contentions, reiterated the contentions put forth before the learned Single Judge in his sincere attempt of sustaining the order of the learned Single Judge. 7. The Court has paid its anxious consideration on the submissions made and looked into the materials available, in particular the compromise decree entered into between the parties. 8. As could be seen above, C.S.No.895 of 2000 was filed by the applicants, seeking declaration that the deed entered into between the parties on 10.7.2000 was void and inoperative and for consequential permanent injunction. It was not a suit for recovery of money. Pursuant to the memorandum of compromise filed by both the parties, a compromise decree came to be passed. The important clauses under the said compromise decree, namely clauses 1 to 6, 14 and 19 read as follows : "1.That as agreed by both parties hereto the Defendants herein shall give the name 'BALU ENCLAVE' to the Complex Constructed under the project and that the 1st Plaintiff herein shall carry out engraving of the building of the above name on the front portion of the said building and during the course of work done sign-boards at two places to that effect shall be displayed at the appropriate road junction. 2.That the 1st Plaintiff herein on failing to make such display as mentioned in clause (i) Supra/the 1st Defendant herein shall carry out the said work mentioned in clause (i) supra instead of the 1st Plaintiff herein and shall claim reimbursement to an extent of Rs.7500/- from the 1st Plaintiff herein. 3.That the 1st Plaintiff herein shall employ the name of the complex in all the instruments, documents and deeds done or executed by him. 4.That the 1st plaintiff herein shall construct and complete a total number of 46 flats and out of the same shall deliver 17 (seventeen) flats to the 1st Defendant herein as per the schedule specified in Annexure hereto as full and final settlement of all her claims. 5. That the 1st Plaintiff herein shall confirm the specifications given in the Annexure 2 hereto in respect of the constitution of the flats as mentioned in clause (4) supra. 6. That in respect of any delay caused in effecting the delivery of the flats as per Annexure 1 hereto the 1st Plaintiff herein shall pay at the rate of Rs.3/- per sq.ft. monthly to the 1st Defendant herein. .......... 14.That in default of giving effect to regularise the defective and unfructified conveyances as stated in clause (10) supra shall pay the value at the rate of Rs. 254/- (Rupees two hundred and fifty only) per sq.ft. in respect of such undivided interest not regularised at the time of completion of the project. 19.That in the event of any restriction

@page-Mad21 imposed by statutory bodies or on account of any reason the 1st Plaintiff herein could not give effect to the delivery of flats in Second Floor as per clause (4), the 1st Plaintiff herein shall make good the shortfall to the extent of 3356 sq.ft in ground and first floor from his other projects duly approved by Corporation, MMDA in Valasaravakkam and Ramavaram to the satisfaction and options of the 1st Defendant on or before 30th July, 2002 and that if the 1st Plaintiff herein is unable to procure alternative building from his other projects mentioned above, he shall pay to the extent of shortfall at the rate of Rs. 850/- per sq.ft unconditionally on 1st August, 2002." A very reading of the entire compromise decree would reveal that it was not a decree for payment of money or any ascertained sum. On the contrary, it can be termed as composite decree. A reading of the aforementioned clauses would clearly indicate that the non-performance of certain conditions imposed thereon would give rise to a situation when liability for payment of money would arise. In order to sustain the notices invoking under Section 9(2) of the Insolvency Act, there must be a decree or an order for payment of money. A reading of all the terms in the compromise decree as a whole would make it evident that it was neither a decree nor an order for payment of money, but it would confer a right on the parties to make a claim for money against the other for non-fulfilment of the obligations imposed upon them under the terms of the compromise. Under these circumstances, the contention put forth by the learned counsel for the appellant that the decree gives rise to a money claim against the respondents for non fulfilment of the obligations and hence the decree was executable as one for decree for payment of money, though attractive, cannot be countenanced in law. 9. Much reliance was placed by the appellant on clause 6 of the compromise decree, referred to above and according to the learned counsel, as per the calculations made, E.P. has also been filed before the Master. The Court is afraid whether clause 6 could be construed as a decree or an order for payment of money, since it would be quite evident from clause 6 that if any delay was caused in effecting the delivery of the flats in terms of clause 4, the first plaintiff should pay at the rate of Rs.3/- per sq.ft. monthly to the first defendant. This clause 6 cannot be taken separately and could be acted upon terming it as a decree for payment of money. It should not be forgotten that clauses 1 to 5 imposed various conditions for fulfilment on both the parties. 10. At this juncture, the contention put forth by the learned counsel for the respondents is that the appellant, who has failed to perform her terms under the compromise decree, should not be allowed to complain that the respondents have not performed their obligations under the compromise decree. As could be seen in clause 10, the plaintiffs 1 and 2 should regularise the defective conveyances at their costs. This is not a clause for payment of money, but it was only meant for regularisation of the defective conveyance. Equally, clause 14 speaks of payment of stipulated sum per square feet, if not regularised at the time of completion of the project. These clauses cannot be termed as a decree or an order for payment of money. 11. From the submissions made, it would be quite clear that one is complaining of the delay caused by the other. In short, the entire reading of the terms under the compromise decree cannot be construed

that there was any decree or order for payment of money. True it is, the term Creditor under the Insolvency Act means and includes decree holder, debt would include judgment debt and the debtor would include judgment debtor. The Apex Court had an occasion to consider the question as to whether the insolvency notice under Section 9(2) of the Presidency Towns Insolvency Act, 1909 can be sustained on the basis of the arbitral award made under the Arbitration and Conciliation Act, 1996 and held in negative. It would be more apt and appropriate to reproduce the relevant paragraphs in the judgment of the Supreme Court reported in (2006) 13 SCC 322 : (AIR 2007 SC 168) (Paramjeet Singh Patheja v. ICDS LTD.), which read as follows : "41. Issuance of a notice under the Insolvency Act is fraught with serious consequences: it is intended to bring about a drastic change in the status of the person against whom a notice is issued viz. to declare him an insolvent with all the attendant disabilities. Therefore, firstly, such a notice was intended to be issued only after a regularly constituted court, a component of the judicial organ established for the dispensation of justice, has passed a decree or order for @page-Mad22 the payment of money. Secondly, a notice under the Insolvency Act is not a mode of enforcing a debt; enforcement is done by taking steps for execution available under CPC for realising monies. 42. The words "as if" demonstrate that award and decree or order are two different things. The legal fiction created is for the limited purpose of enforcement as a decree. The fiction is not intended to make it a decree for all purposes under all statutes, whether State or Central. 43. For the foregoing discussions we hold: (i) That no insolvency notice can be issued under Section 9(2) of the Presidency Towns Insolvency Act, 1909 on the basis of an arbitration award. (ii) That execution proceedings in respect of the award cannot be proceeded with in view of the statutory stay under Section 22 of the SICA Act. As such, no insolvency notice is liable to be issued against the appellant. (iii) Insolvency notice cannot be issued on an arbitration award. (iv) An arbitration award is neither a decree nor an order for payment within the meaning of Section 9(2). The expression "decree" in the Court Fees Act, 1870 is liable to be construed with reference to its definition in CPC and hold that there are essential conditions for a "decree" : (a) that the adjudication must be given in a suit, (b) that the suit must start with a plaint and culminate in a decree, and (c) that the adjudication must be formal and final and must be given by a civil or Revenue Court.

An award does not satisfy any of the requirements of a decree. It is not rendered in a suit nor is an arbitral proceeding commenced by the institution of a plaint. (v) A legal fiction ought not to be extended beyond its legitimate field. As such, an award rendered under the provisions of the Arbitration and Conciliation Act, 1996 cannot be construed to be a "decree" for the purpose of Section 9(2) of the Insolvency Act. (vi) An insolvency notice should be in strict compliance with the requirements in Section 9(3) and the rules made thereunder. (vii) It is a well-established rule that a provision must be construed in a manner which would give effect to its purpose and to cure the mischief in the light of which it was enacted. The object of Section 22, in protecting guarantors from legal proceedings pending a reference to BIFR of the principal debtor, is to ensure that a scheme for rehabilitation would not be defeated by isolated proceedings adopted against the guarantors of a sick company. To achieve that purpose, it is imperative that the expression "suit" in Section 22 be given its plain meaning, namely, any proceedings adopted for realisation of a right vested in a party by law. This would clearly include arbitration proceedings. (viii) In any event, award which is incapable of execution and cannot form the basis of an insolvency notice." From the above, it would be quite clear that to cause issuance of notice under Section 9(2) of the Act, there must be a decree or an order for payment of money. In the instant case, the court is unable to notice any decree or order for payment of money. Under these circumstances, the order made by the learned Single Judge does not require any interference. 12. In the result, both these original side appeals are dismissed, leaving the parties to bear their costs. Appeals dismissed. AIR 2009 MADRAS 22 "Divisional Manager, New India Assurance Co. Ltd. v. S. V. Mani" MADRAS HIGH COURT (Madurai Bench) Coram : 1 S. MANIKUMAR, J. ( Single Bench ) Divisional Manager, New India Assurance Co. Ltd. v. S. V. Mani and Ors. C.M.A. No. 953 of 2008, D/- 22 -7 -2008. Motor Vehicles Act (59 of 1988), S.168 - Succession Act (39 of 1925), S.306 - MOTOR VEHICLES SUCCESSION - MAXIMS - Compensation - 'Pain and Suffering' suffered by deceased - Death of deceased during pendency of claim, not on account of injuries caused him in accident, but for other, reasons Cause of action to claim compensation in respect of injuries does not survive - LR's of deceased not entitled to compensation for same - Maxim "Actio personalis Moritur cum Persona" - Applicability.

Actio Personalis Moritur-cum-Persona is held applicable in cases where suit for damages and defamation, assault or other personal injuries sustained by the plaintiff, which had resulted in a decree in favour of @page-Mad23 the plaintiff because in such a case, the cause of action merges with the decree and the decretal debt forms part of the plaintiff estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold . (Para 7) If a person injured in a motor accident, files a claim petition for compensation and later on, dies during the pendency of the claim petition, not on account of the injuries caused to him in the accident, but due to some other reasons, not related with the personal injuries, the cause of action to claim compensation in respect of injuries caused to him does not survive. Section 306 of the Indian Succession Act does not recognise transfer of cause of action in favour of the legal representatives/dependants of the deceased. An action for a bodily injury does not survive on the death of the injured person. The action for personal injury and the claim for compensation would survive and pass over to the legal representatives/ Dependants if the injury had caused the death. Pain and suffering experienced by the deceased would abate on the death of the deceased. There cannot be any separate award for the injuries to be paid to the legal representatives/dependants. The other claims such as special diet, medicine, conveyance etc. relate to loss of property and therefore, the legal representatives/dependants are entitled to prosecute the appeal and the same would not abate on the death of the deceased. The legal representatives/dependants are not entitled to the compensation awarded for pain and suffering, experienced by the deceased and the injuries sustained by him in the accident. (Paras 9, 10) Cases Referred : 2005 AIHC 1782 (HP) Chronological Paras 8

2002 (3) ACJ 1828 (Kar) 4, 8 2001 AIHC 187 (Kar) 1999 AIHC 3314 (MP) 8 8

1997 AIHC 1386 (Delhi) 8 1991 (2) ACJ 585 (Guj) 8 1991 (2) ACJ 707 (Kar) 8 1991 (2) Acc 206 (HP) AIR 1988 SC 506 AIR 1986 SC 411 8 4, 8 8

AIR 1985 PunjHar 2 1975 ACJ 448 (Mad) AIR 1967 SC 1124

8 8 8

Bijoy Karthikeyan, for Appellant; M. Gnanagurunathan, for Respondents. Judgement JUDGMENT :- The question posed before this Court is whether, the legal representatives/dependants are entitled to the compensation awarded for pain and suffering, experienced by the deceased and the injuries sustained by him in the accident. . 2. Facts leading to the appeal are as follow? :In an accident which occurred on 29.06.1999, one Mr. Vadamalai sustained multiple injuries. He claimed compensation of Rs. 2,00,000/- under various heads. During the pendency of the claim petition, he died. Consequently, legal representatives/ respondents were brought on record. The respondents/claimants failed to examine a doctor nor produced any documentary evidence to prove that the death was due to the injuries sustained in the accident. On evaluation of pleadings and evidence, the Tribunal found that there was no nexus between the injuries and the cause of death. However, taking into consideration the period of hospitalization and the nature of injuries sustained by the deceased, viz., fractures of tibia and fibula and in the left toe, the Tribunal, awarded Rs. 30,000/- for injuries, Rs. 30,000/- for pain and suffering, Rs. 3,000/- for medical expenses, Rs.1,000/-for transportation, altogether awarded a sum of Rs. 64,000/- with interest at the rate of 7.5% per annum. 3. Assailing the award, learned counsel for the appellant-Insurance Company submitted that the Tribunal having found that the death was not due to the injuries sustained in the accident and considering the fact that the injured died, after more than one year, from the date of accident, the Tribunal has grossly erred in awarding compensation to the respondents/claimants, for the injuries and pain and suffering experienced by the deceased. 4. Relying on the legal principle of "Actio Personalis Moritur-cum-Persona", learned counsel for the appellant submitted that the pain and suffering dies along with the deceased and there cannot be any award. He further submitted that the legal heirs/dependants of the deceased are not entitled to compensation for injuries, unless the respondents/claimants prove that the death was on account of the injuries sustained in @page-Mad24 the accident. In this context, he relied on decisions reported in AIR 1988 Supreme Court 506, [M.Veerappa v. Evelyn Sequeira and others] and 2002 (3) ACJ 1828 [Uttam Kumar (deceased) v. Madhav and another].

5. Per contra, Mr. M.Gnanagurunathan, learned counsel for the respondents/claimants submitted that the deceased sustained three fractures, that he was treated as inpatient for nearly three months in the hospital, during which time, the respondents/claimants incurred considerable medical expenditure. He further submitted that the legal representatives/dependants are entitled to loss of earning during the period of treatment and, therefore, prayed that the award be sustained. 6. Heard the learned counsel appearing for the parties and perused the materials available on record. 7. Actio Personalis Moritur-cum-Persona is held applicable in cases where suit for damages and defamation, assault or other personal injuries sustained by the plaintiff, which had resulted in a decree in favour of the plaintiff because in such a case, the cause of action merges with the decree and the decretal debt forms part of the plaintiff estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold. 8. Some of the case laws decided by various High Courts on this issue are hereun-der : (i) The plain meaning of the maxim "Actio Personalis Moritur-cum-Persona" is that "a personal action dies with the parties to the cause of action". The above said maxim is an invention of English Lawyers. In AIR 1967 SC 1124 [Girija Nandini Devi v. Bijendra Narain], the Supreme Court observed as hereunder, "The maxim" Actio Personalis Moritur cum Persona" means a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such as actions for damages, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall with the enumerated classes. Nor is such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory." (ii) However, the maxim "Actio Personalis Moritur cum Persona" relates only to the personal injury, pain and suffering experienced by the deceased on account of injuries and it cannot be extended to the loss of estate of the deceased. Reference can be had to the decision of this Court in Thailammai v. A.V. Mallayya Pilai, reported in 1975 ACJ 448, wherein, this Court held that the cause of action in respect of damages to the estate of the deceased survives and it is passed over to the legal representatives/ dependants. (iii) Explaining the maxim "Actio Personalis Moritur cum Persona" and its applicability to the Motor Accident cases with reference to Section 306 of the Indian Succession Act, the Gujarat High Court in Jennabai v. Gujarat State Road Transport Corporation, reported in 1991 (2) ACJ 585, at Paragraphs 10, 16 and 18, held as follows : "10. Tort, frequently, involves a non-pecuniary loss. Even pecuniary loss of the deceased, being personal to him has no proper entitlement to a place in the assessment of the damages which goes to his estate.

But for the pecuniary loss suffered by the deceased on account of such injuries, an action would lie or action would survive for the benefit of the estate of the deceased. The claim, on account of loss to the estate of the deceased, would, undoubtedly, survive and would pass over to his heirs or legal representatives. Section 306 of the Indian Succession Act does not exclude right to recover claim on the basis of proprietary right. In a case of personal injuries, arising out of vehicular accident, it may include pecuniary loss as well. This pecuniary loss or any loss which referable to the loss to estate would be a proprietary or right pertaining to property. Therefore, the right to maintain the action or to continue the action for recovery of pecuniary and proprietary loss which are referable or attributable to the loss to the estate, cannot be said to have been taken away by the provisions of Section 306 of the Indian Succession Act. If the provisions of Section 306 of the Indian Succession Act are extended to all causes of action; including those affecting proprietary or property, i.e., to the estate, it would be to stultify to a great extent the provisions of Section 212 (2). If it is stretched to that, it would be nugatory, which empowers @page-Mad25 a Hindu, Mohammadan, Buddhist, Sikh, Jain, Indian Christian or Parsi for applying for letters of administration in case of intestacy. Such a construction of section 306 of the Indian Succession Act would raise a direct conflict with the provisions of Order 22, Rule 3(1) of the Civil Procedure Code. Moreover, the liability to pay compensation is created immediately on the occurrence of the accident to the person 'suffering the injury and must amount to a debt payable to him and pass over to the heirs of the workman on his death and does not abate. Thus, provisions of Section 306 of the Indian Succession Act have no application of such cases. Therefore, the maxim actio personalis moritur cum persona on which Section 306 of the Indian Succession Act is based, cannot have a blanket applicability in all actions even in a case of personal injuries wherein the damages flew from the head or under the head of loss to the estate. It may be mentioned that in England, the said maxim has been criticised as harsh, unconscionable and unjust. The rightful claim falling in the realm of pecuniary or proprietary or loss to the deceased's estate would survive, which is not personal to the deceased. It may also be mentioned that the words 'personal injury' occurring in. Section 306 mean bodily or physical injury as opposed to the injury to the proprietary right. Therefore, a cause of action in respect of injury to the property or loss referable to the deceased's estate 'flowing from the personal injury would not fail within the exception, but would, undoubtedly, survive. But, if interpreted otherwise, as held by the Tribunal, would mean unjust enrichment and benefit to the wrongdoer's estate, and unjustifiable injury to the estate of the deceased. Unfortunately, the Tribunal has failed to address itself to such a vital and important aspect while considering and examining the provisions of Section 306 of the Indian Succession Act. 16. It is very clear from para 7 of the impugned judgment that the deceased had claimed Rs. 2,200/- for Medical Expenses and Rs. 575/- for Miscellaneous expenses, etc. The claim under such heads would undoubtedly, fall within the field of loss to the estate. If such amount would not have been spent by the deceased it was to go to the hands of the appellants or legal representatives of the deceased. Likewise, loss of past income awardable to the deceased on account of wrong done to him, subject to reasonable expenses which would have been incurred by the deceased for himself would also be a loss to the estate. It can safely be concluded that had the deceased not sustained the injuries, there would not

have been loss of income and consequently there would not have been any detrimental effect on the estate of the deceased. If the unfortunate accident had not occurred the income expenses falling within the head of loss to the estate would have augmented the estate and same would have gone in the hands of the heirs and legal representatives of the deceased. The loss of past income for the period from the date of accident till the inability on the part of the deceased to earn on account of the injuries, subject to reasonable expenses for himself, would also form a part of estate of the deceased. No doubt, the loss of income occurring after the death of the deceased would, not be a loss to the estate. The action for amount of claim which is not attributable to the loss of estate of the deceased could not survive to the appellants. In other words, the heirs and legal representatives of the deceased would not be entitled to and eligible to claim the amount of claim which is not referable to or not attributable to the loss of the estate. Unfortunately, the Tribunal applied the doctrine of actio personalis moritur cum persona along with the provisions of Section 306 of the Indian Succession Act in respect of the entire claim without taking into account the separate claim under the head of loss to the estate of the deceased, Abdul Karim Musa. This proposition of law, unfortunately, could not be brought to the notice of the Tribunal. With the result, the approach of the Tribunal insofar as it related to the dismissal of the claim in respect of loss to the estate of the deceased cannot be sustained 18. Incidentally, it may also be mentioned that could inability to compensate under the Workmen's Compensation Act, 1923, in case of an employment injury to the workman abate or die on account of demise of the workman unconnected with the employment? Suppose, in a given case, the workman files an application for compensation under Section 3 of the Workmen's Compensation Act, 1923, and during the pendency of the proceedings he dies otherwise than as a result of the employment injuries. Would that right be lost in view of the provisions of @page-Mad26 Section 306 of the Indian Succession Act? If the interpretation made by the Tribunal in the present case is accepted then the liability to compensate him under the Workmen's Compensation Act, 1923, would abate. Of course, the language in Section 306 of the Indian Succession Act, no doubt, appears to be general. But it is not always that a general import must necessarily receive a general and wide meaning divorced from the material facts of the case. The expression "other personal injuries not causing the death of the party" is preceded by the words, 'defamation, assault' as defined in the Penal Code. The words 'other personal injuries..... must, therefore, receive colour from the earlier words and ought to be construed with the words preceding. It is also settled proposition of law that benevolent legislation is required to be construed liberally so as to advance the underlying object and purpose of the provision. It is also well settled that if interpretation of a welfare legislation or any provision of the statute is capable of two constructions, that construction should be preferred which furthers the policy of the Act or provision concerned and which is more beneficiary for the class in whose interest the law has been made." (iv) In V.Mepherson v. Shiv Charan Singh and Ors., reported in I (1997) ACC 634 : 1997 AIHC 1386 the Delhi High Court, while testing the correctness of the award passed by the Motor Accident Claims Tribunal, considered as to whether personal damages awarded to the claimant/injured are inheritable or not. In the said case, the death was not due to the accident. The main contention was that the claim

for enhancement for general damages after the death of the objector does not survive. Answering the issue, the Court at Paragraph 3, observed as follows : 3. So far as the contention of Mr. Tarun Johri that claim for damages which was on account of suffering and pain suffered by the deceased, to my mind, it would abet on the death of the injured. But so far as other claims under other heads those would not come to an end on the death of the objector. The right to sue would survive even on the death of the objector. As a matter of fact claim on account of special diet, medicine, conveyance etc., are such which related to the loss of the property, therefore, right to sue would not abet on the death of the objector. It would survive to his legal heirs as held by the High Court of Punjab and Haryana in the case of Joti Ram and Ors. v. Chaman Lal and Ors., AIR 1985 Punjab and Haryana page 2 : 1 (1986) ACC 550." (v) In Kartar Kaur v. Dayal Singh, reported in II (1999) ACC 372 : 1999 AIHC 3314 (DB), one of the issues raised before the Division Bench of Madhya Pradesh High Court was about the continuance of the appeal by the Legal Representatives of the injured/claimant (sons of the deceased) based on the Doctrine "Actio Personalis Moritur cum Persona", i.e., a personal claim dies with the person (claimant). Answering the issue, at Paragraph 13, the Division Bench held as follows : "13. In view of the above, we are of the view that where the injured claimant dies as a result of the injuries during the pendency of his claim for compensation, the legal representatives would be entitled to pursue the claim as in case of death caused in an accident by the use of motor vehicle. Where the injured dies his natural death and 'not because of injuries suffered in motor accident, the legal representatives would be entitled to pursue the claim to the extent as recognised by Section 306 of the Indian Succession Act, that is, the claim on account of loss to the estate of the deceased. Wherein a case, the compensation has been awarded to the injured and an appeal is preferred and during the pendency of the appeal, claimant/injured dies, his legal representatives can continue the appeal for enhancement of compensation." (vi) A similar issue came up for consideration before the Division Bench of Karanataka High Court in Sridevi v. Mastak Ahamad, reported in I (2002) ACC 262 (DB) : (2001 AIHC 187). In the above reported judgment, a minor, aged about four years, sustained injuries. On the claim made by her father, Rs.72,000/- was awarded. Aggrieved by the inadequacy of compensation, an appeal was preferred by the injured through her father and during the pendency of the appeal, she died. Legal Representatives were brought on record. It was submitted that the compensation for Medical Expenses, Pain and Suffering, Loss of Amenities and general damages was on the lower side. Following the decision in V. Mepherson's case, the Division Bench held that the appeal is abated insofar as the claim for damages for pain and suffering is concerned and on the question of expenses on @page-Mad27 medicines, special diet, conveyance etc., as the expenses relate to loss of estate, they would not abate. (vii) Similar view was taken by the Himachal Pradesh High Court in Ram Ashari v. H.R.T.C., reported in IV (2005) ACC 379 : (2005 AIHC 1782). At paragraphs 6 to 8 of the judgment, it is held as follows :

"6. It is well settled law that an action in torts for claim of compensation for damages on account of injuries suffered by an injured is a right personal to the injured. This right cannot be continued by the legal heirs or legal representatives. It is no doubt true that the legal heirs or the legal representatives can continue the proceedings insofar as they relate to the loss to the estate such as medical expenses, amount spent on treatment etc. However, the claim with regard to pain and suffering, future loss of income and such related matters is an action which is personal to the injured alone and cannot be continued after his death unless it is proved that the death is the result of the injuries suffered in the accident. 7. A Division Bench of this Court in Narinder Kaur v. State of H.P., II (1991) ACC 206 : (1991) 2 ACJ 767, held as follows : (8) We have heard the learned counsel for the parties and gone through the records. The principle of actio personalis moritur cum persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tort feasor. In its applicability, the principle stands considerably modified by the provisions of Section 306 of the Indian Succession Act, which clearly lays down that all demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his death survive except causes of action for defamation, assault and other personal injuries not causing death of the party etc., which come to an end with the death of the injured. The loss of the estate is thus not covered by the exceptions contained in Section 306 of the Indian Succession Act. While taking this view, we are fortified by the decisions of the Supreme Court in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, 1986 (1) ACJ 440 : AIR 1986 SC 411 : 1986 (2) TAC 216, and M.Veerappa v. Evelyn Sequeria, AIR 1988 SC 506. The claimants as legal representatives of the original claimant were, as such, entitled to be substituted in his place with a view to continue the proceedings in the case and to have a decision on the claim in respect of the loss caused to the estate of the deceased." 8. Keeping in view of the settled position of law and the fact that in the present case there is no claim for loss to the estate and the entire claim is based on the personal claim of the deceased Karam Chand, the appeal cannot be continued and prosecuted by the legal representatives." (viii) A Full Bench of the Karnataka High Court in Uttam Kumar (deceased) v. Madhav and another, 2002 ACJ 1828, had an occasion to consider an appeal filed by the legal representatives of the deceased for enhancement of the compensation. Short facts of the reported case are as follows : "In an accident that occurred on 07.01.1995, where the Uttam Kumar sustained injuries. He was admitted in the hospital for his treatment and he incurred expenses. He claimed compensation. The Tribunal awarded Rs. 36,250/- with costs and interest. Not satisfied with the compensation, he preferred an appeal for an enhancement. Pending disposal of the appeal, he died and his aged parents were brought on record. The Division Bench of the Karnataka High Court found that the cause of action will not survive and Lrs., of the deceased claimant will not be entitled to compensation. However, the Division Bench observed that in view of the amended provisions of the Motor Vehicles Act, 1988 and the decision of the Supreme Court in Kannamma v. Deputy General Manager, Karnataka State Road

Transport Corporation, reported in 1991 (1) ACJ 707 (Karnataka), referred this matter to a Larger Bench, The Full Bench which examined the issue with reference to the provisions of the Motor Vehicles Act and Indian Succession Act, 1925 and answered as follows :(i) A claim petition presented under Section 110-A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc. (loss to the estate) cannot, on such person's death occurring not as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his/her legal representatives; but ii) A claim petition presented under Section 110-A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in @page-Mad28 a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc. (loss to the estate) can, on such person's death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only insofar as the claim for compensation in that claim petition relates to loss of estate of the deceased person due to bodily injuries sustained in the motor accident." 9. In the present appeal, the Tribunal, on assessment of oral and documentary evidence, has categorically found that the respondents/claimants have failed to prove that the deceased died on account of injuries and that there was no nexus. Admittedly, the death has occurred after one year and three months after the accident and that there is no proximity. 10. It is now well settled that if a person injured in a motor accident, files a claim petition for compensation and lateron, dies during the pendency of the claim petition, not on account of the injuries caused to him in the accident, but due to some other reasons, not related with the personal injuries, the cause of action to claim compensation in respect of injuries caused to him does not survive. Section 306 of the Indian Succession, Act does not recognise transfer of cause of action in favour of the legal representatives/dependants of the deceased. An action for a bodily injury does not survive on the death of the injured person. The action for personal injury and the claim for compensation would survive and pass over to the legal representatives/dependants if the injury had caused the death. Pain and suffering experienced by the deceased would abate on the death of the deceased. There cannot be any separate award for the injuries to be paid' to the legal representatives/ dependants. The other claims such as special diet, medicine, conveyance etc., relate to loss of property and, therefore, the legal representatives/dependants are entitled to prosecute the appeal and the same would not abate on the death of the deceased. 11. Though it is contended by the respondents/claimants that the deceased was treated as in-patient for three months, there is no sufficient proof. However, having regard to the fact that he sustained fractures and other injuries, it could be reasonably presumed that he would have incurred some

expenditures even if he was hospitalised in government hospital. A sum of Rs. 6,000/-could be awarded for medical and other miscellaneous expenses. 12. As rightly contended by the learned counsel for the appellant, legal representatives/dependants are not entitled to the award of Rs. 60,000/- granted under the head of injuries and pain and suffering and they are entitled to reasonable compensation for special diet and transportation. 13. In the result, the respondents/claimants are entitled to compensation of Rs. 10,000/- with interest at 7.5% per annum from the date of claim under the following heads :

Medical expenses Special diet :

Rs. 6,000/-

Rs. 3,000,/Rs. 1,000/-

Transportation :

14. It is represented by the learned counsel for the appellant-Insurance Company that they have deposited the statutory amount as per Section 173 of the Motor Vehicles Act. The Tribunal is directed to refund the balance amount with proportionate accrued interest to the appellant-Insurance Company within a period of three weeks from the date of receipt of a copy of this order. The Civil Miscellaneous Appeal is partly allowed. Consequently, connected M.P., is closed. No costs. Order accordingly. AIR 2009 MADRAS 28 "P. K. Sekar Babu v. State Election Commissioner, Chennai" MADRAS HIGH COURT Coram : 2 A. K. GANGULY, C. J. AND F. M. IBRAHIM KALIFULLA, J. ( Division Bench ) P. K. Sekar Babu v. State Election Commissioner, Chennai. W.P. No. 22681 of 2008, D/- 16 -9 -2008. Constitution of India, Art.19(i)(a), Art.226 - FREEDOM OF SPEECH AND EXPRESSION - WRITS - ELECTION Freedom to vote in favour of candidate - Large number of anti-social elements who are outsiders are being allowed to enter into wards to intimidate genuine voters - Apprehension that it will invade rights of voters to exercise their franchise - Sufficient to entertain writ petition at this stage - Courts directs that all possible steps to be taken to ensure that no person with criminal antecedents is given a free hand on date of election and that no such person should be allowed to overpower or intimidate voters And that voters should be allowed @page-Mad29

to cast their votes on basis of their voter identity cards or some other identifying documents - Court also makes it clear that no vehicle other than vehicle belonging to Officials should be allowed within 200 meters of polling booth.(Paras 10, 11) Cases Referred : AIR 1978 SC 851 AIR 1971 SC 1731 Chronological Paras 7 6

P.H. Manoj Pandiyan, for Petitioner; J. Raja Kalifulla, Govt. Pleader, A. Mohammed Ghouse, for Respondents. Judgement A. K. GANGULY, C. J. :- Heard the learned counsel for the parties. This writ petition has been filed, in public interest, by one Mr. P.K. Sekar Babu, who claims to be a Member of the Tamil Nadu Legislative Assembly representing the Radhakrishnan Nagar Assembly Constituency. He has filed this petition in order to ensure free and fair elections to two wards of the Corporation of Chennai, viz. Ward Nos. 18 and 44, in which elections are to be held on 18.9.2008. 2. It appears that in Ward No. 18, there are about 10,424 voters and there are about 12 polling booths. In Ward No.44, there are 8,872 voters and there are about 9 polling booths. Out of the 10,424 voters in Ward No. 18, there are 5,195 men voters and 5,229 women voters. Out of the 8,872 voters in Ward No.44, there are 4,548 men voters and 4,324 women voters. Out of the polling booths which have been set up in these two wards, there are some polling booths which are meant solely for women and there are some solely for men and there are some in which both men and women can cast their votes. In all, it is going to be an election in which only there 19,296 voters divided into 21 booths. Therefore, the arrangement is for about 900 voters per booth. Admittedly, the elections will be conducted using the Electronic Voting Machines. 3. Learned counsel for the writ petitioner submits that he apprehends that the elections will not be conducted in a free and fair manner. According to him, large number of anti-social elements, who are outsiders, are being allowed to enter the two wards in question and they will threaten and intimidate the genuine voters and will invade the rights of the voters to exercise their franchise. It is submitted that apprehending such eventualities, the petitioner has made a detailed representation to the State Election Commissioner and also to the Chief Secretary of the State Government on 9.9.2008. It is also submitted that in the last elections which took place to the Corporation of Chennai, several irregularities were committed and after the elections were held, a writ petition challenging the said elections was filed before this Court and this Court, by a majority opinion by two learned Judges, as against one was pleased to hold that the elections were not conducted in a free and fair manner and consequently, the election in several wards was set aside. Learned counsel for the petitioner submits that the same thing may be repeated this year too.

4. Learned Government Pleader appearing on behalf of the respondents, on the other hand, submits that for this year, in order to ensure free and fair elections, two senior I.A.S. Officers have been appointed Election Observers. For Ward No. 18, one Shri. P.M. Basheer Ahmed, I.A.S. has been appointed an Observer. He has given his first report about changing of some arrangements in certain booths falling within Ward No. 18. The other Observer who has been appointed in respect of Ward No.44 is one Shri. Kosalaraman. He has also given his report in order to ensure free and fair elections. Learned Government Pleader further sub-mits that the entire election process will be videographed and the Chennai City Police has come out with a Bundobast Scheme for holding such elections. He has handed over to us a booklet containing such scheme with various guidelines. Learned Government Pleader also submitted that the phone numbers of these two Observers have been already announced in newspapers and in case of any attempt to fudge the election process by anybody, these Observers can be immediately contacted and a complaint can be lodged. Learned Government Pleader submitted that all steps have been taken to ensure free and fair elections. 5. Learned counsel for the petitioner submitted that in the past also, similar assurance was given to the Court, which has been recorded in the order of a Division Bench of this Court dated 11.10.2006 passed in Writ Petition No. 38702 of 2006. The said assurance is to the following effect :"Learned Government Pleader appearing for the State Election Commission has brought to our notice that as per the Polling Officers Guide issued by the State Election Commission, and also the Model Code of @page-Mad30 Conduct issued by him, only authorized persons can enter the polling booth, and states that the provisions of the Code shall be strictly implemented. He also states that the Guidelines relating to Circular dated 26.9.2006 and the Minutes of the Meeting of the Election Commission with the top police officials dated 13.9.2006 shall also be strictly implemented." Learned counsel for the petitioner submitted, despite the said assurance which was recorded by this Court, the elections were not conducted in a free and fair manner and this could be seen from the majority judgment of the Division Bench of this Court. 6. The importance of holding a free and fair election in a democracy can hardly be over-emphasized. The Apex Court has held that a voter's right to cast his vote amounts to his freedom of choice and freedom of expression in favour of a candidate whom he wants to elect. Therefore, it partakes of a nature of a Fundamental Right under Article 19(1)(a) of our Constitution and it is the duty of the State to protect the said right. This Court is of the opinion that if there is any attempt at any quarter for infringement of the said right, a citizen can come to this Court praying for holding of a free and fair election. It has been held by the Supreme Court that when there is a threat to a person's fundamental right, he can approach the Court at the stage when the threat is there and he need not wait till that threat is translated into actual practice vide D.A.V. College, Bhatinda v. State of Punjab, AIR 1971 SC 1731.

7. The importance of protecting a citizen's right to vote has been emphasized by the Supreme Court time and again and it has been very poignantly stated by a Constitution Bench of the Supreme Court in the case of Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi reported in AIR 1978 SC 851. Justice V.R. Krishna Iyer, speaking for the majority of the judges in the Bench, held that the election must be conducted according to a fair procedure and in order to highlight the importance of a person's right to cast his vote, the learned Judge quoted an eloquent passage from Sir Winston Churchill. We should do well to remind ourselves of the message emanating from those words : "At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point." 8. Considering all these well laid principles, we cannot dismiss the writ petition at this stage just because of the reason that the petition has been filed on the basis of an apprehension. 9. However, we find that in the petition, the particulars are sadly lacking. We have repeatedly asked the learned counsel for the petitioner to point out any particulars from which it will appear that any attempt is made from any interested quarter for vitiating the election atmosphere. The learned counsel only could refer to his representation. We find that the representation of the petitioner has been answered by the Secretary, Tamil Nadu State Election Commission by his communication sent to the petitioner dated 15.9.2008. In the said communication, the Secretary, Tamil Nadu State Election Commission, has assured the petitioner that all arrangements have been made to ensure free and fair elections. We, therefore, direct that the assurance which has been given to the petitioner in writing in answer to the petitioner's representation must be strictly followed by the State Election Commission. 10. The petitioner's apprehension is that there is entry of outsiders with anti-social record in the wards which are going to polls on 18.9.2008. This Court directs the third respondent to step up its vigil in respect of the territorial limits of the wards in question from today in order to ensure that persons with questionable criminal record or background are not allowed free entry in those areas. It is well known that on the eve of election, the police is entitled to effect preventive arrests for the purpose of maintenance of law and order. The third respondent is, therefore, directed to take all possible steps to ensure that no person with criminal antecedents is given a free hand on the date of the election and that no such person should be allowed to overpower or intimidate voters. 11. This Court has been informed that the voters' list itself is a printed one and it contains the photographs of all the valid voters printed on it. In that view of the matter, this Court directs that the voters should be allowed to cast their votes on the basis of their voter identity cards or some other identifying documents and that no person who @page-Mad31 is not a genuine voter and who is not carrying a valid voter identity card or an identifying document should be allowed to go within 200 meters of the polling booth. This is, of course, subject to the condition that the candidates contesting the elections or their accredited polling agents and other

polling officials or police personnel could be allowed to go within 200 meters from the polling booth, but others should not be permitted inside the said area. This has to be ensured by the police. This Court also makes it clear that no vehicle other than the vehicles belonging to the Officials should be allowed within 200 meters of the polling booth. This also should be ensured by the police. 12. We have been assured by the learned Government Pleader that the polling booths will be videographed both from inside and outside. This Court has been repeatedly assured by the learned Government Pleader that whatever might have happened in the past, it will not be repeated this time and the State Government is committed to ensure free and fair elections. We hope and expect that the said assurance would be honoured. 13. This Court also makes it clear that the aforesaid directions which have been given by this Court to the respondents also apply in the case of the petitioner and it is made very clear that the petitioner is also bound by these directions. 14. Recording the undertaking of the learned Government Pleader and issuing the aforesaid directions, this writ petition is disposed of. There shall be no order as to costs. Consequently, M.P. No. 1 of 2008 is closed. Order accordingly. AIR 2009 MADRAS 31 "K. Madhavan v. District Collector, Salem" MADRAS HIGH COURT Coram : 2 A. K. GANGULY, C. J. AND F. M. IBRAHIM KALIFULLA, J. ( Division Bench ) K. Madhavan v. District Collector, Salem and Ors. W.P. No. 21598 of 2008, D/- 4 -9 -2008. Prevention of Cruelty to Animals Act (59 of 1960), S.11 - CRUELTY TO ANIMALS - Preventing cruelty to animals - Sport or game organised in which bull is tied by its neck with nylon ropes from both sides and participants hold ropes - A big mud doll tied in a bamboo is shown in front of bull, which is for purpose of frightening bull - Bull tries to run here and there, but people who hold ropes on both sides prevent bull from running further and in this manner, bulls are being tortured - Bulls are not given any food or water, thereby subjecting them to cruelty - Bulls are subjected to whipping, beating and twisting of their tails, pulling of their hind legs - Court imposes ban on such activity - Also directs that save and except worshipping of a bull by applying sandalwood paste on its forehead, no other act, whereby a bull or any other animal is subjected to cruelty, should be allowed to be performed in 'Erndhattam'. (Paras 8, 10, 11) Cases Referred : 2007 (3) Mad LW 154 Chronological Paras 9

AIR 2001 SC 2337 : 2001 AIR SCW 2039 6 AIR 2000 Ker 340 1997 (4) Bom CR 271 6 7

V. Raghavachari, for Petitioner; J. Raja Kalifulla, Govt. Pleader, for Respondents. Judgement A. K. GANGULY, C.J. :- Heard the counsel for the parties. This writ petition has been filed by one K. Madhavan in public interest praying for a writ of mandamus to be issued by this Court directing the respondents to prevent the 'Erudhattam' to be held at Muthu Muniappan Temple, Koodalur Village, Magudavanchavadi P.O., Salem District, in view of the representation dated 29.8.2008 sent by the petitioner. 2. In the writ petition, it has been averred that every year in the Tamil month of 'Aavani', in the aforesaid Sri Muthu Muniappan Temple, an event called 'Erudhattam' is conducted and this year, the said event is scheduled to be held tomorrow, i.e., 5.9.2008. It is further averred that people from the surrounding villages take part in the said event and for this purpose, they bring in more than 100 bulls from their respective villages. Such bulls are kept in the temple place in the petitioner's village 15 days before the said event. In the said event, a kind of sport or game is organized in which the bull is tied by its neck with nylon ropes from both sides and the participants hold the ropes. A big mud doll tied in a bamboo is shown in front of the bull, which is for the purpose of frightening the bull. As a result of such strategies being adopted by the villagers, the bull gets angry and attacks the mud doll. In this process, the bull tries to run here and there, but the people who hold the ropes on both sides prevent the bull from @page-Mad32 running further and in this manner, the bulls are being tortured. The bulls are tethered and brought to their village in a procession, accompanied by firing of crackers and beating of drums and the bulls are not given any food or water, thereby subjecting them to cruelty. It is averred that this kind of a sport involves a risk to the lives of the participants and the spectators inasmuch as the bulls may, under the torture and pain suffered by them, run into the spectators and injure them. It is also averred that the bulls are subjected to whipping, beating and twisting of their tails, pulling of their hind legs etc. As a result of such activities in the said sport, the bulls get injured in the head, eyes and legs. The bulls are also made to drink liquor and, therefore, they become aggressive and furious. Further, chilli powder is also thrown into their eyes, as a result of which the bulls run wildly, providing so called amusement to the spectators and in the process, the bulls are injured and there is also a possibility of the spectators getting injured. Therefore, this petition has been filed for a writ of mandamus directing the respondents to ban this kind of sport. 3. When the writ petition came up for admission on 2.9.2008, we directed the learned Government Pleader to take instructions in the matter. The learned Government Pleader, after taking instructions,

has produced before us a letter dated 3.9.2008 sent by the Tahsildar, Sankari to the District Collector, Salem. From the contents of the said letter, it appears that a meeting was held among the villagers and the decision of the said meeting was reported by the Tahsildar to the District Collector. The decision seems to be that only one bull will be used in the event and only sandalwood paste will be applied on the forehead of the said bull and that bull will be worshipped and further that no bull race will be conducted, nor will any bull be subjected to cruelty.

4. Learned counsel appearing for the petitioner has produced before us several judgments passed by different High Courts and also of the Supreme Court in order to highlight that all forms of cruelty to an animal should be stopped. 5. Reference in this connection can be made to the provision of Section 11 of the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as 'the said Act' in short). It appears that the said Act has been enacted to prevent infliction of unnecessary pain or suffering on animals and Section 11(1)(a) of the said Act provides as follows :11. Treating animals cruelly. (1) If any person (a) beats, kicks, over-rides, overdrives, overloads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animals to be so treated; or . he shall be punishable, 5in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees, and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both.]" This Court find that if the averments made in the writ petition are true, then the persons who are responsible for infliction of such pain or suffering to the bull come squarely within the prohibition of the aforesaid provision of the said Act. 5. Sub-s. by Act 26 of 1982, Sec. 10, for certain words (w.e.f. 30-07-1982) 6. It appears that the Government of Kerala issued a notification which prohibited the owners of circus from subjecting animals to torture and cruelty while giving them training for performing in the circus. The said notification was challenged before a Division Bench of the Kerala High Court and the learned Judges of the Division Bench in the judgment rendered in the case of Jumbo Circus v. Union of India, reported in 2000 (2) K.L.T. 625 : (AIR 2000 Ker 340), have upheld the said notification. While doing so, the learned Judges of the Kerala High Court have been pleased to come to the following conclusion :"In conclusion, we hold that circus animals are being forced to perform unnatural tricks, are housed in cramped cages, subjected to fear, hunger, pain, not to mention the undignified way of life they have to live, with no respite and the impugned notification has been issued in conformity with the changing

scenario, values of human life, philosophy of the Constitution, prevailing conditions and the surrounding circumstances to prevent the infliction of unnecessary pain or suffering on animals. Though not homo sapiens, they are also being entitled to dignified existence and humane @page-Mad33 treatment sans cruelty and torture. In many respects, they comport better than humans, they kill to eat and eat to live and not live to eat as some of us do, they do not practice deception, fraud or false hood and malpractices as humans do, they care for their little ones expecting nothing in return, they do not proliferate as we do depleting the already scarce resources of the earth, for they practice sex restraint by seasonal mating, nor do they inhale the lethal smoke of tobacco polluting the atmosphere and inflicting harm on fellow beings. All animals except the very lowest exhibit some degree of intelligent behaviour, ranging from learned responses to complex reasoning. Many believe that the lives of humans and animals are equally valuable and that their interests should count equally. Their contribution to the health of humans is invaluable, once it is remembered that nearly every advance in health care and combating human diseases has been based on animal research. Animals also provide models for the study of human diseases. New drugs are tested on animals to help determine their potential for causing cancer or other disease or for harming embryos and foetuses in the womb. Therefore, it is not only our fundamental duty to show compassion to our animal friends, but also to recognise and protect their rights." We are in respectful agreement with the aforesaid conclusion reached by the learned Judges of the Kerala High Court. When the said judgment was challenged before the Supreme Court, by a judgment rendered in the case of N.R. Nair vs. Union of India reported in (2001) 6 SCC 84 : (AIR 2001 SC 2337), the Supreme Court upheld the judgment of the Kerala High Court and upheld the notification which was issued by the Government of Kerala to prevent cruelty to animals. 7. In another judgment delivered by the Bombay High Court (Panaji Bench) in the case of People for Animals through Mrs. Norma Alvares vs. State of Goa reported in 1997 (4) Bombay Civil Reporter 271, a Division Bench of the Bombay High Court came to a similar conclusion in the matter of preventing cruelty to animals, especially in the context of organizing bull fights for entertaining crowd. While referring to the provisions of the aforesaid Act, the learned Judges observed as follows :"21. It is thus clear that the enactment of the law to prevent cruelty to the animals is not an end in itself. What is more important is the implementation of that Act and to see to it that the activities which are prohibited under the said Act do not take place in the State and in case of infringement of the provisions of the said Act, to take strict action against the offenders. Likewise, it is also obligatory upon the respondents to see to it that the provisions dealing with the prohibition of certain activities are effectively enforced by preventing such activities. Failure on the part of the respondents to take preventive measures will certainly amount to tolerance of violation of the provisions of the said Act and such tolerance will render legal provisions contained in the said Act nugatory and also will encourage lawlessness.

22. It cannot be disputed that all animals are born with an equal claim for life without any cruelty to them. Perhaps if this right was given proper recognition by the human-beings, there would have been no necessity to bring on the statute book the said Act. Unfortunately, even though the said Act has been brought in force in the State, still there appears to be either lack of courage or wilful negligence on the part of the respondents to implement the provisions of the said Act and, therefore, in our considered opinion, the petitioners are justified in making grievance about the same. The respondents cannot shirk their responsibilities to prevent the cruelty to the animals. In fact, to prevent such cruelty to animals, it is obligatory upon the respondents to take action under the various provisions contained in the said Act." In paragraph 26 of the said judgment, the learned Judges quoted the views of Justice V.R. Krishna Iyer in his Treatise on Human Rights and made the following very pertinent observations :"While we are expressing deep anguish and sigh of great displeasure over torture inflicted on innocent animals in this country and that too despite the Vedas, the Bible, the Koran, the Buddha and Mahavire and the Supreme miracle and revolutionary apostle of Ahimsa, Mahatmaji, Justice Krishna Iyer has warned us that we have forfeited the right to be heirs of a culture of Karuna, Samata and Dharma. Justice Krishna Iyer further reminds us that humanism cannot be halved by denying it to prehuman brethren and compassion is beyond division by refusing it to the Darwinian species; all life is too divinely integral to @page-Mad34 admit of unnatural dichotomy as man and animal in the wholeness of ecology. Justice Krishna Iyer, therefore, reminds us the message of kindness found in Koran which reads as under : 'There is not an animal on the earth, nor a flying creature on two wings, but they are people like unto you'. We are in respectful agreement with the aforesaid very valid and pertinent observations. 8. The photographs which have been shown to us by the learned counsel for the petitioner in support of his case made out in the writ petition depict a pathetic sight of a bull being tortured in different ways which have been stated by us in the foregoing paragraphs. This Court fails to understand why people, who claim to be civilized, in the 21st century, find pleasure in torturing a helpless animal in this fashion. We are sorry to observe that all these things go unhindered in this country in the name of religion, whereas the essence of all religions is tolerance and compassion to all living beings, and there cannot be any religious practice which is totally divorced from kindness and is based solely on cruelty. In any event, when such a matter is brought before the Court, it is the duty of the Court to follow the law and to ensure its compliance, especially the provisions of Section 11(1)(a) of the said Act which have been quoted hereinabove, in order to maintain the rule of law. This Court is of the opinion that there cannot be any custom or usage which is contrary to law, nor should it be allowed to be performed violating the law and when such matters are brought before the Court, the Court must render a decision for implementing the law.

9. Learned Government Pleader has drawn the attention of this Court to the judgment of a Division Bench of this High Court in the case of K. Muniasamy Thevar v. The Deputy Superintendent of Police, Keelakkarai reported in 2007 (3) L.W. 154. The learned Government Pleader submits that in the said judgment, a complete ban on village sports even such as Jallikattu, Manjuvirattu and Rekla Race was modified by the learned Judges of the Division Bench by allowing such sports to be held in a regulated manner. The Division Bench in that case held that a balance should be struck by regulating the conduct of such sports events by enacting appropriate legislation by the State and by ensuring strict implementation thereof by the District Administration and the police. 10. Keeping in mind the aforesaid decision of our High Court and the decisions rendered by the Bombay High Court, the Kerala High Court and the Supreme Court, we direct that save and except worshipping of a bull by applying sandalwood paste on its forehead, no other act, whereby a bull or any other animal is subjected to cruelty, should be allowed to be performed in the 'Erudhattam' which is scheduled to be held tomorrow at the Muthu Muniappan Temple, Koodalur Village, Magudavanchavadi P.O., Salem District. We make it clear that worshipping a bull does not mean subjecting that animal to any acts of cruelty. 11. We, therefore, permit the event to be held strictly on the condition that the bull or any other animal which is being worshipped shall not be subjected to any acts of cruelty and it shall not in any way violate the provision of Section 11 of the Prevention of Cruelty to Animals Act, 1960. We direct the District Collector, Salem to take adequate steps to ensure compliance with our order by, if necessary, posting police pickets in the said area. The writ petition is thus disposed of, but there shall be no order as to costs. Consequently, M.P. No. 1 of 2008 is closed. 12. Since the festival is going to take place tomorrow, we are directing the operative portion of this order to be made over to the counsel for the parties today itself. Learned Government Pleader is directed to communicate this order to all the respondents for strict compliance. Order accordingly. AIR 2009 MADRAS 34 "H. P. C. Ltd. v. Inspector General of Registration, Chennai" MADRAS HIGH COURT Coram : 2 ELIPE DHARMA RAO AND M. VENUGOPAL, JJ. ( Division Bench ) Hindustan Petroleum Corporation Ltd., Chennai v. Inspector General of Registration, Chennai and Ors. W.A. No. 1941 of 2005, D/- 14 -7 -2008. Stamp Act (2 of 1899), S.47A (Tamil Nadu Amendment) - T.N. City Tenants Protection Act (3 of 1922), S.9 - STAMP - TENANCY - SALE DEED - DEED - Under valued sale deed - Reference to collector for determination of market value - Legality - Value of property was fixed by Court, in proceeding initiated u/S.9 of Chennai City Tenants Protections

@page-Mad35 Act - However, document was presented for registration after lapse of 34 months by which time market value of property soared to high level - In such circumstance registering authority cannot be said to be at fault in insisting party to pay difference of amount - Referring sale deed to collector u/S.47-A, proper. (Paras 18, 20) Cases Referred : Chronological Paras 19

AIR 2008 SC 509 : 2007 AIR SCW 7378 AIR 2008 (NOC) 283 (Mad) (2006) 3 Mad LJ 425 13, 16 13, 17

2002 (3) CTC 490 (Mad) 13, 15 AIR 1997 Mad 296 11, 13, 14

O.R. Santhanakrishnan, for Appellant; K. Balasubramanian, Spl. G.P., for Respondents. Judgement ELIPE DHARMA RAO, J. :- This writ appeal has been filed challenging the order passed by the learned single Judge of this Court, dated 28.7.2005 made in W.P. No. 4802 of 2000. 2. The appellant herein is a Government of India Enterprise, falling under the Ministry of Petroleum and Natural Gas and engaged in refining, marketing, distribution or petroleum products through various outlets throughout the breadth and length of the country. The case of the appellant/petitioner is that their predecessors-in-interest viz. Caltex (India) Limited, had taken on lease a vacant land measuring 9600 sq.ft. in Old Door No.31/4, A.L.Plant Road, Guindy, Chennai-32 from one Mr. M. L. Loganatha Mudaliar on 1.5.1957 for a period of five years on a monthly rental of Rs.100/- and the said document was registered on 23.5.1957. The said document contains a clause for renewal for further three terms of five years each and before expiry of the first lease period itself, the said Loganatha Mudaliar sold the property to 'Elite Opticals' in and by a sale deed dated 17.3.1962. Subsequently, the said Caltex (India) Limited, entered into a lease agreement with Elite Opticals Industries for a period of five years, commencing from 1.5.1962 with two renewal options of five years each. The Central Government, by an Ordinance called the Caltex (Acquisition of Shares of Caltex Oil Refining (India) Limited and of the Undertakings in India of Caltex (India) Limited Ordinance, 1976, has acquired the right, title and interest of Caltex (India) Limited in relation to its undertakings in India and acquired all the shares of Caltex Oil Refining (India) Limited and thus the Caltex Oil Refining (India) Limited became a Government Company within the meaning of Section 617 of the Companies Act, 1956 and all other legal formalities were also completed and thus the petitioner/appellant company was born from the said amalgamation. 3. It is also stated by the appellant that after the expiry of the lease period, the landlord had filed C.S.No.490 of 1992 before this Court, seeking eviction of the Corporation, wherein the

petitioner/appellant had filed Application No.2492 of 1983, invoking the provisions of Section 9 of the Madras City Tenants Protection Act, for purchase of the land in question and by an order dated 16.2.1993, this Court has held that the petitioner/appellant is entitled to the benefits of the said Act and thus is entitled to purchase the suit land, for which the value had to be fixed in accordance with the Act. Thereafter, one Mr.T.Kandaswamy, Advocate, was appointed as the Advocate-Commissioner to determine the minimum of extent of land that is necessary for the convenient use and also to fix the land value, taking into consideration the very market value of three years, preceding the date of the order and accordingly, the Advocate-Commissioner has fixed the total value of the land at Rs.22,45,000/- and this Court, after considering the report and the objections of the landlord/Elite Opticals, who claimed higher amount, by an elaborate order dated 17.2.1994, fixed the market value of the land in accordance with the provisions of Section 9(1) of the Tamil Nadu City Tenants Protection Act at Rs.26,85,000/-. Accordingly, the payment was made by the petitioner/appellant and thereafter, the said Elite Opticals had sought for directions from this Court to the Registering Officer to register the Sale Deed, without requiring the petitioner/appellant to furnish a certificate under Section 269-UL of the Income-tax Act. 4. In the case on hand, the dispute started when the document was presented on 28.12.1996 for registration and when the Registering Authority has referred the same under Section 47-A of the Stamp Act, stating that the value of the property was under-valued in the document. This action of the Registering Authority was challenged by the appellant by filing the writ petition praying to issue a Writ of Mandamus, to direct @page-Mad36 the second respondent to forthwith release the original sale deed, bearing Document No.916 of 1996, on the ground that when once the Court has fixed the value of the property, under the provisions of Section 9 of the Tamil Nadu City Tenants Protection Act and when the ingredients of Section 47-A of the Stamp Act, as amended by the Tamil Nadu, are not satisfied, the respondents are fault in referring the document. 5. The learned single Judge has disposed of the said writ petition, with the following directions : (i) the petitioner shall give an undertaking before the second respondent that they would pay the deficit stamp duty, if ultimately it is held that they are liable for such payment and the same shall be recorded in the sale deed; (ii) the petitioner shall furnish a bank guarantee for the deficit stamp duty, which shall be subject to the proceedings under Section 47A of the Indian Stamp Act; (iii) the petitioners shall give an undertaking that they would not alienate or encumber the property in question till the payment of additional stamp duty, if any, and

(iv) on compliance of the conditions (i) to (iii), referred to above, the respondents are directed to return the original document with an endorsement that the matter in issue is pending before the third respondent herein under Section 47A of the Indian Stamp Act. 6. Aggrieved by the above said directions of the learned single Judge, this writ appeal has been filed by the appellant. 7. The specific argument advanced on the part of the learned counsel for the appellant is that only when the Registering Officer has 'reason to believe that the market value of the property has not been truly set forth in the instrument', he may, after registering such instrument, refer the same to the Collector for determination of the market value and since in the case on hand, the sale consideration has been fixed by the Court, exercising its statutory powers under Section 9 of the Tamil Nadu City Tenants Protection Act, there is no question of undervaluing the property and the reference under Section 47-A is unwarranted. 8. The question that falls for consideration in this matter is 'whether the Registering Authority is right in referring the document under Section 47-A of the Stamp Act. when, admittedly, the sale consideration was fixed by the Court, while exercising the powers under Section 9 of the Chennai City Tenants Protection Act? 9. For better appreciation of the case, we shall now extract hereunder Section 47-A of the Stamp Act, as amended by Tamil Nadu : "47-A Instruments of conveyance, etc... undervalued, how to be dealt with If the Registering Officer, appointed under the Indian Registration Act, 1908, while registering any instrument of conveyance, exchange, gift, release of benami right or settlement has reason to believe that the market-value of the property, which is the subject-matter of conveyance, exchange, gift, release of benami right or settlement has not been truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the market-value of such property and the proper duty payable thereon. (2) On receipt of a reference under subsection (1), the Collector shall, after giving the parties reasonable opportunity of being heard and after holding an enquiry in such mariner as may be prescribed by rules made under this Act, determine the market-value of the property, which is the subject-matter of conveyance, exchange, gift, release of benami right or settlement and the duty as aforesaid. The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty. (3) The Collector may, suo motu, within two years from the date of registration of any instrument of conveyance, exchange, gift, release of benami right or settlement, not already referred to him under sub-section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market-value of the property, which is the subject-matter of conveyance, exchange, gift, release of benami right or settlement, and the duty payable thereon and if, after such examination, he has reasons to believe that the market-value of such property has not been truly set forth in the

instrument, he may determine the market-value of such property and the duty, as aforesaid, in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty shall be payable by the person liable to pay the duty : Provided that nothing in this sub- section @page-Mad37 shall apply to any instrument, registered before the date of commencement of the Indian Stamp (Madras Amendment) Act, 1967 (4)(a) Any person, aggrieved by an order of the Collector under sub-section (2) or subsection (3), may appeal to the appellate authority specified in sub-section (5). (b) All such appeals shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed by rules made under this Act. (5) The appellate authority shall be, (i) in the city of Madras, the Madras City Civil Court; and (ii) elsewhere (a) the Subordinate Judge, or if there are more than one Subordinate Judges, the Principal Subordinate Judge, having jurisdiction over the area in which the property concerned is situated; or (b) if there is no such Subordinate Judge, the District Judge, having jurisdiction over the area aforesaid." 10. On a perusal of the provisions of Section 47-A of the Stamp Act, as amended by the Tamil Nadu, it is manifest that these provisions empower the Registering Authority, while registering any instrument of conveyance to refer the matter to the Collector for determination of market value of the property and the proper duty payable on the instrument, if the Registering Authority has reason to believe that market value of the property which is the subject-matter of such instrument has not been rightly set forth in the instrument. The object of the provision is only to neutralise the effect of under-valuation of property with a view to evading payment of stamp duty. The condition precedent for making a reference is, there must be reason for the Registering Authority to believe that the market value of the property has not been truly set forth in the document presented for registration and hence it must follow that the reasons must be recorded, however short it may be. It is the duty of the Registering Authority to record reasons for his belief that true market value has not been set out in the document, complete the registration and thereafter refer the matter to the Collector for determination of the market value of the property and the proper duty payable thereon. It is essential to point out that before registration, the Registering Authority has to record that he has reasons to believe that the value of the property has not been duly set forth in the instrument. Only after recording such reasons, the Registering Authority has to complete registration of the instrument in question and thereafter alone, he could refer the same to the Collector under sub-section (1) of Section 47A of the Indian Stamp Act. In

the case on hand, all these procedures have been duly followed by the Registering Authority in referring the document under Section 47-A of the Stamp Act. 11. The specific argument of the learned counsel for the appellant is that when, admittedly, the price was fixed by the Court, there is no reason for the Registering Authority to suspect the value mentioned in the sale deed and since there is no fraudulent evasion of payment of stamp duty, the reference under Section 47-A of the Stamp Act, is untenable. The learned counsel for the petitioner would rely on a judgment of a Division Bench of this Court in S. P. Padmavathi v. State of Tamil Nadu and others (AIR 1997 Madras 296], wherein it has been held that : Power under S.47A of the Act can only be exercised when the Registering Officer has reason to believe that the market value of the property, which is the subject of conveyance, has not been truly set forth with a view to fraudulently evade payment of proper stamp....." 12. There is no dispute with regard to this part of the above proposition of law, arrived at by the Division Bench of this Court. In the case on hand, the Court has passed the order in the petition filed under Section 9 of the Chennai City Tenants' Protection Act, 1921 on 17-2-1994, fixing the market value of the land at Rs.26,85,000/-. But, the document has been executed and presented for registration only on 2812-1996 i.e. well after 34 months, during which, it is the common knowledge of everybody that there was price sore in the market value of the properties. It is because of this reason, the Registering Authority has held the document as 'under-valued' as on the date of executing the sale deed and referred the document under Section 47-A of the Stamp Act. 13. It has been vehemently argued on the part of the appellant that since the price of the land was fixed by the Court, there was no fraudulent evasion of stamp duty and that only the value of the land as on the date of agreement or the order of the Court

@page-Mad38 should be taken into consideration while registering the deed. In support of his arguments, the learned counsel for the appellant would rely on the following judgments : I. S. P. Padmavathi v. State of Tamil Nadu and others [AIR 1997 Madras 296], 2. G. B. Adhilakshmi Ammal v. The Special Deputy Collector (Stamps) [2002 (3) CTC 490], 3. Sub-Registrar, Adyar, Chennai v. Canara Bank, Saidapet Branch and others [(2006) 3 MLJ 425], and 4. Devi Narayanan Housing Development Private Limited v. Inspector General of Registration [(2007) 5 MLJ 1337] : (AIR 2008 (NOC) 283). 14. In the first judgment cited, reported in AIR 1997 Madras 296, a Division Bench of this Court has held : "... Mere lapse of time between the date of agreement and the execution of the document will not be the determining factor that the document is undervalued and such circumstance by itself is not

sufficient to invoke the power under S.47-A of the Act, unless there is lack of bona fides and fraudulent attempt on the part of the parties to the document to undervalue the subject of transfer with a view to evade payment of proper stamp duty." 15. In the second judgment cited above, reported in 2002 (3) CTC 490, a learned single Judge of this Court, in a matter wherein the Court has fixed the sale price in a petition filed under Section 9 of the City Tenants Protection Act and the Sub-Registrar passed the order directing tenant to pay difference in Stamp Duty on ground that market value of lands was more, has held that 'sale consideration had been fixed on basis of order of Court exercising statutory power and there is no allegation by Sub-Registrar that tenant and landlord have colluded' and therefore the order of the Special Deputy Collector (Stamp) demanding difference in Stamp Duty was set aside. 16. In the third judgment cited above, reported in 2006 (3) MLJ 425, a learned single Judge of this Court has held that 'mere time gap between sale and execution of document is not sufficient to the Registering Officer to invoke his power under Section 47-A'. 17. In the fourth judgment cited above reported in 2007 (5) MLJ 1337 : (AIR 2008 (NOC) 283), a learned single Judge of this Court has held : "When a property is purchased in a Court auction, the value fixed thereon should be the value truly fixed based on material consideration. If any value other than the value fixed by the Court is taken into consideration, then, it tantamounts to exceeding the jurisdiction made under the law. The authorities concerned cannot sit on appeal over the Court's decision unless an appeal is preferred from such an order. Therefore, the value of the property in question for the purpose of determining the stamp duty to be paid by the purchaser is the value fixed in the Court auction purchase which is arrived at after an offer and acceptance and the amount offered during the auction and accepted by the Court would represent the real market value of the property. In the instant case, the authority concerned has exceeded his jurisdiction by going beyond the value fixed by the Court." "In the instant case, the value indicated by the petitioner is the value fixed by the Court and therefore, the same has to be taken into account and accordingly, the petitioner has to pay the stamp duty only on the basis of the value fixed by the Court in the Court auction." "In view of this settled proposition that the value fixed by the Court has to be taken by the respondent, the impugned order, which is made contrary to the above said proposition cannot be sustained and the same is liable to be set aside." 18. There is no dispute that in the case on hand, the value of the property was fixed by the Court, in a proceeding initiated under Section 9 of the Chennai City Tenants Protection Act. But, when the Court, in a proceeding under Section 9 of the Chennai City Tenants Protection Act, after scrupulously following the requisites mandated thereunder has fixed the market value as on that date i.e. on 17.2.1994, the appellant has slept over the matter, without any rhyme or reason and has coolely presented the document for registration after a lapse of 34 months, by which time, the market value of the property has soared to a high level. When, for this purpose, the document was referred under Section 47-A of the

Stamps Act by the Registering Authority, it was challenged by the appellant/petitioner on the ground that the value was arrived at by a Court of law, in a proceeding initiated by them under Section 9 of the Chennai City Tenants Protection Act. The market value was arrived at by the Court in the said @page-Mad39 proceeding on 17.2.1994, whereas the document was executed and presented for registration on 29.12.1996. In such a factual situation and when there is increase in the market value of the property, it cannot be said that the Registering Authority is at fault in insisting the appellant/purchaser to pay the difference of amount. 19. At this juncture, we feel it appropriate to quote a judgment of the Honourable Apex Court in State of Rajasthan and others v. Khandaka Jain Jewellers [2008 (1) CTC 60] (AIR 2008 SC 509), wherein the Hon'ble Apex Court has categorically held as follows : "10. It may be mentioned that there is a difference between an agreement to sell and a sale. Stamp duty on a sale has to be assessed on the market value of the property at the time of the sale, and not at the time of the prior agreement to sell, nor at the time of filing of the Suit. This is evident from Section 17 of the Act. It is true that as per Section 3, the instrument is to be registered on the basis of the valuation disclosed therein. But Section 47-A of the Rajasthan (Amendment) Stamp Duty Act contemplates that in case it is found that properties are under valued then it is open for the Collector (Stamps) to assess the correct market value. Therefore, in the present case, when the Registering Authority found that valuation of the property was not correct as mentioned in the instrument, it sent the document to the Collector for ascertaining the correct market value of the property. The expression "execution" read with Section 17 leaves no manner of doubt that the current valuation is to be seen when the instrument is sought to be registered. The Stamp Act is in the nature of a taxing statute, and a taxing statute is not dependant on any contingency. Since the word "execution" read with Section 17 clearly says that the instrument has to be seen at the time when it is sought to be registered and in that if it is found that the instrument has been undervalued then it is open for the Registering Authority to enquire into its correct market value. The learned single Judge as well as the Division Bench in the present case had taken into consideration that the agreement to sell was entered into but it was not executed. Therefore, the incumbent had to file a Suit for seeking a decree for execution of the agreement and that took a long time. Therefore, the Courts below concluded that the valuation which was in the instrument should be taken into account. In our opinion this is not a correct approach. Even the valuation at the time of the decree is also not relevant. What is relevant in fact is the actual valuation of the property at the time of the sale. The crucial expression used in Section 17 is "at the time of execution". Therefore, the market value of the instrument has to be seen at the time of the execution of the sale deed, and not at the time when agreement to sale was entered into. An agreement to sell is not a sale. An agreement to sell becomes a sale after both the parties signed the sale deed. A taxing statute is not contingent on the inconvenience of the parties. It is needless to emphasize that a taxing statute has to be construed strictly and considerations of hardship or equity have no role to play in its construction..." (Emphasis supplied)

19A. This judgment of the Honourable Apex Court has settled the position that even the valuation at the time of the decree is not relevant and what is relevant is the actual valuation of the property at the time of the sale and therefore, the judgments cited by the learned counsel for the appellants cannot be made applicable. 20. Therefore, we have no hesitation to hold that the Registering Authority has done nothing wrong in referring the document in question under Section 47-A of the Stamp Act, even though the sale value was fixed by the Court in a proceeding under Section 9 of the Chennai City Tenants Protection Act. after complying with all the mandatory requirements thereunder, since, there was a long gap from the date of passing of the order by the Court and the date of execution and presentation of the document for registration, during which time, the market value has reached new peaks. Having thus slept over the matter, unreasonably and without any rhyme or reason and inviting an unpleasant situation, the appellant cannot be permitted to raise objection against the statutory action initiated by the Registering Authority. 21. In the counter affidavit filed, the third respondent has satisfactorily explained the reason for not passing any order in the reference under Section 47-A of the Stamp Act. In such circumstances, we are unable to appreciate the contentions raised on the part of the appellants. Therefore, it follows that the present appeal deserves only dismissal. @page-Mad40 22. The officers at the helm of affairs of the appellant Corporation at the relevant time must be held responsible for their lethargic attitude, resulting in the present unpleasant situation to the Corporation and sleeping over the matter, in spite of the order of the Court, permitting them to purchase the property for a sum of Rs. 26,85,000/- and their lethargy in discharging their official duties, in getting the sale deed executed in favour of the appellant Corporation immediately after the permission was granted by the Court, has thrown the Corporation to a situation of shelling out more amount towards the Stamp Duty, besides legal expenses and further delay in registration of the document. Therefore, the appellant Corporation is directed to initiate necessary disciplinary proceedings against the officers concerned who were at the helm of affairs of the appellant Corporation at the relevant time and who left the matter without pursuing it, from the date of the order of the Court i.e. from 17.2.1994, resulting in extra financial burden on the appellant Corporation, a Government of India Enterprise, towards Stamp Duty, in view of the escalation in land prices, and other incidental charges like the legal expenses, thus putting a dent to the public money, and report compliance to this Court within eight weeks from the date of receipt of a copy of this order. With such direction to the appellant Corporation, this writ appeal is dismissed. No costs. Appeal dismissed. AIR 2009 MADRAS 40 "E. Muralidharan v. M/s. Venkataraman and Co." MADRAS HIGH COURT

Coram : 2 M. CHOCKALINGAM AND M. VENUGOPAL, JJ. ( Division Bench ) Dr. E. Muralidharan v. M/s. Venkataraman and Company and Anr. O.S.A. No. 345 of 2006, D/- 25 -9 -2008. Arbitration and Conciliation Act (26 of 1996), S.43(3) - ARBITRATION AND CONCILIATION - Referance of dispute to arbitration - Extension of time - Employment of words "unless some step to commence arbitral proceedings is taken within a time fixed by agreement" u/S.43(3) - Clearly indicate that application for extension could be filed only before commencement of arbitral proceedings and not subsequently. The legislative intent clear that an application for extension of time under S. 43 (3) of the Act could be made even if the time stipulated under the agreement to refer the matter for arbitration was over, but the filing of the application should be before making any steps to commence arbitral proceedings and not thereafter. The Court, when an application for extension of time is filed, after the period for referring the matter to arbitration as per the agreement is over and before the commencement of the arbitral proceedings, for the purpose of extension of time has to consider, if not time extended, whether it would cause undue hardship and to grant time or refuse time taking into consideration the circumstances in that case. Hence no question of consideration of undue hardship would arise when an application was made after the commencement of the arbitral proceedings, and that too in a case where the award has actually been passed. It can be well stated that after making a claim before the arbitral tribunal and being a party to the proceedings and obtaining an award on the question of limitation, at no stretch of imagination, the appellant could be allowed to make an application seeking extension of time to refer the matter to arbitration. (Para 15) Cases Referred : Chronological Paras

AIR 2005 SC 1638 : 2004 AIR SCW 5679 6 AIR 1996 Bom 167 AIR 1975 SC 415 AIR 1964 Punj 61 7 7 7

P.V.S. Giridhar, for Appellant; R. Krishnasamy Sr. Counsel for Hari Baskar, for Respondents. Judgement M. CHOCKALINGAM, J. :- This appeal has arisen from an order of the learned Single Judge of this Court whereby an application seeking extension of time made by the appellant herein in Application No. 3693 of 2004, was dismissed. 2. The said application under Sections 9 and 43(3) of the Arbitration and Conciliation Act, 1996, came to be filed under the following circumstances :

(a) The appellant trading in shares through the first respondent, a share and stock-broking company, found that the first respondent was acting detrimental and prejudicial to the interest of the appellant by committing fraudulent acts in refusing to sell the appellant's shares despite the request to do so in view of the highest level of @page-Mad41 share prices in the market. Consequent upon the same, the appellant made a complaint to the second respondent on 9.4.2001. which brought forth a reply on 30.4.2001 from the first respondent denying the allegations. The same was followed by a rejoinder by the appellant and also a reply by the opposite party. The second respondent informed the appellant that the complaint was referred to the Investor Grievance Cell (1GC) of the NSC for resolution. By a communication dated 9.8.2001, the appellant was advised to refer the matter to arbitration. Accordingly, the arbitral proceedings were initiated at the instance of the appellant by filing an application on 24.9.2001 claiming a sum of Rs.35 lakhs and also paying an arbitration fee of Rs.12,000/-. A counter was filed by the first respondent. After taking into consideration the relevant documents and oral submissions, the Arbitrators made an order on 25.2.2002 relying upon the Bye-laws and regulations of the second respondent. The claim of the appellant was dismissed on the ground that it was barred by limitation. (b) Pursuant to the instructions given by the Grievance Cell to move the Court for extension of limitation period stipulated under the arbitration agreement, the appellant filed the said application seeking extension of time. An ex-parte order of extension of time was made on 27.9.2004 granting four weeks time for submitting the dispute to the arbitrator. On appearance, the first respondent made an Application No.4908 of 2004 seeking to set aside the ex-parte order made in Application No.3693 of 2004. Accordingly, the order passed in Application No.3693 of 2004 was set aside with an observation that the matter has got to be decided only while hearing Application No.3693/2004. Thereafter, Application No.3693 of 2004 was taken up for consideration. The learned Single Judge heard the submissions put forth by both sides both factual and legal and took the view that the application required an order of dismissal, and accordingly dismissed. Hence, this appeal at the instance of the applicant. 3. The only question that would arise for consideration in this appeal is whether the extension of time as asked for by the appellant/applicant in the said application could be ordered. 4. Advancing arguments on behalf of the appellant, the learned Counsel Mr. P. V. S. Giridhar made the following submissions : (i) It was not an award, but only a return of the papers recording that it was barred by time. (ii) the application seeking extension of time under Sec.43(3) of the Arbitration and Conciliation Act, 1996, should have been ordered. But, the said application has been dismissed without proper appreciation of the legal position in that regard.

(iii) The second respondent referred the appellant's complaint to SEBI for resolution. By a letter dated 9.8.2001, the SEBI advised the appellant to initiate arbitral proceedings. Accordingly, arbitral proceedings were initiated on 24.9.2001 without delay. The same was dismissed by the award dated 25.2.2002, on the sole ground of bar of period of limitation without any pronouncement on merits. Hence the appellant was constrained to file an application under Sec.43(3) of the said Act seeking extension of time, which should have been allowed. (iv) The findings of the learned Single Judge that the order of the arbitrators holding the claim to be barred would be binding on the appellant if no step was taken to set aside the award; that the last transaction having taken place in July 2000 and the application for arbitration having been made on 24.9.2001, the same was barred under NSC Bye-laws, and the applicant has not made out a case for granting extension of time are not correct in view of Sec.43(3) of the Act. (v) The petition for setting aside the award under Sec.34 of the Act would not lie inasmuch as the award was not rendered on merits and the application was only on account of the time bar clause. Even assuming that the instant award could be set aside under Sec.34 of the Act, the appellant has an alternative remedy under Sec.43(3) of the Act for seeking extension of time, and the same cannot be rendered otiose. (vi) Even assuming that the dispute arose on the date of last transaction namely July 2000, the appellant could file an application for arbitration on 24.9.2001 inasmuch as SEBI directed the initiation of arbitral proceedings only on 9.8.2001. As such, the dismissal of the application on that basis was erroneous. (vii) The NSC, the principal nodal agency, which regulates the contract between the appellant and the first respondent having @page-Mad42 itself directed the appellant to approach a Court of law for obtaining extension of time, the application ought to have been allowed in the absence of any specific bar therein. (viii) Sec.43(3) of the Act empowers the Court to extend time for referring the dispute for arbitration even in such cases where the earlier application was rejected on the ground of time bar clause incorporated in the agreement. 5. Added further the learned Counsel that the provisions of Sec.43(3) of the Act cannot be read in isolation but ought to be read along with the contract between the parties governing the arbitration; that in the instant case, the bye-laws framed by the NSE incorporating the arbitration clause inter alia provides for the submission of application for arbitration within 6 months of the claim/ dispute; that subsequently, NSE construing the time bar clause set out in the agreement to be amenable to extension by the Court, directed the appellant to approach the Court for obtaining extension of time; that as such, this situation should have been taken into consideration by the learned Single Judge, and hence the application should have been ordered.

6. It is further submitted by the learned Counsel that Sec.43(3) of the Act imports all the provisions of the Limitation Act 1963; that assuming that the dispute between the parties arose as on the date of the last transaction namely July 2000 as found by the learned Single Judge, the appellant's application for arbitration dated 24.9.2001, was well within three year period of limitation set forth under the agreement; that having regard to this, the appellant's rights under the Limitation Act cannot be stultified; that the remedy to seek extension of time under Sec.43(3) of the Act being a special one, the same should be construed in such a manner that it would advance the remedy and not defeat it; that in the case on hand, if the application under Sec.43(3) of the Act was held to be not maintainable, the appellant would be left without any remedy whatsoever; that this would even frustrate the underlying object of Section 43(3) of the Act; that apart from that, taking into consideration the interest of justice, liberal, purposive and beneficial construction of Sec.43(3) of the Act has got to be taken; that the ratio underlying the judgment reported in 2004(8) SCC 312 : (AIR 2005 SC 1638) was squarely applicable to the present facts of the case, and under the circumstances, the appeal has got to be ordered. 7. In support of his contentions, the learned Counsel relied on the following decisions : (i) AIR 1964 Punjab 61 (V 51 C 12) (Lal Chand v. Gopin Chand); (ii) AIR 1975 Supreme Court 415 (Sterling General Insurance Co. Ltd. v. Planters Airways Pvt. Ltd.) and (iii) AIR 1996 Bombay 167 (International Airports Authority of India v. M/S. Mohinder Singh). 8. The Court heard the learned Senior Counsel for the first respondent Mr. R. Krishnasamy, according to whom the period stipulated under the agreement for initiation of the arbitration proceedings was only 6 months; that the application was filed subsequent to that period, and thus the arbitral tribunal after taking into consideration the first question whether the claim was maintainable in view of the period of limitation, has made an award holding that the application was barred by time; that Sec.43(3) of the Act could be applied to a case where extension of time was sought for even before the commencement of the arbitral proceedings, but not at the time either when the arbitral proceedings were pending or after the award was made; that it is also not a case where the appellant could seek for setting aside the award under Sec.34 of the Act since no one ground is made out; that an application to set aside the award could be made under Sec.34 of the Act only on the grounds mentioned therein; but, in the instant case, since the award was passed rejecting the application on the question of limitation, no question of applying Sec.34 would arise; that at the same time, it cannot be stated that the appellant is without remedy available to him; and that he would have first filed a suit in respect of the same. 9. Added further the learned Senior Counsel that the respondent filed a suit against the appellant before the City Civil Court, Madras, and a decree has also been passed, which remained unchallenged; that in the instant case, the award was passed on 11.3.2002; that the application for extension was filed only on 1.7.2004; that it would be indicative of the fact that the extension application was filed after a period of 2 years even after the award was made; that under the circumstances, it has lacked bona fide, and hence the learned Single @page-Mad43

Judge was perfectly correct in dismissing the application, which order has got to be sustained. 10. The Court paid its anxious consideration on the submissions made. 11. It is not in controversy that the claim was made by making an application for arbitral proceedings on 24.9.2001. From the award in question, it would be quite clear that the application was taken up for consideration, and the first respondent was given an opportunity to file its counter. Both the parties have made their submissions. After doing so, an award was passed on 11.3.2002 which runs as follows : "ARBITRATOR'S REASONING AND AWARD. The Applicant was doing the share trading business with the respondent since 1997. The dispute arose on the share trading transactions carried out during 1999 and 2000. The last transaction done by the Applicant with the Respondent was in July 2000. However the Application to NSE was made by the Applicant on 24th September 2001. As per the Arbitration Bye-laws and Regulation of NSE (Chapter XI Clause (3) all claims, differences or disputes shall be submitted to NSE for arbitration within six months from the date on which the claim, difference or dispute arose or shall be deemed to have arisen. Therefore the Applicant should have filed his Application for arbitration in Form I before February 2001. Since it was done much later, the limitation period for reference of claims, differences or disputes for arbitration takes effect. In view of this, the Panel of Arbitrators dismiss the claim made by the Applicant." 12. From the very reading of the above part of the award made after following all procedural formalities and hearing the submissions, it would be quite clear that it was an award as defined under the Act. Hence, the first contention put forth by the learned Counsel for the appellant that it was not an award, but only a return recording that the claim was barred by time has got to be discarded. From the reading of the award, it would be quite clear that the question as to the limitation was taken into consideration, and it was recorded that the claim should have been made within six months from the date on which the difference or dispute arose, and hence, it was out of time. On that ground, it was rejected. Thus, it would be quite clear that it was a dismissal of the claim on the ground of limitation. Hence that contention cannot be accepted. 13. After the award was passed on 11.3.2002, an application was filed seeking extension of time on 1.7.2004 after a lapse of more than two years. Though an award has been passed, unless and until the appellant is able to show any one of the grounds as stipulated under Sec. 34 of the Arbitration and Conciliation Act, 1996, he could not seek the award to be set aside under Sec.34 of the Act. The rejection or the dismissal of the claim on the point of limitation as time barred, is not one of the grounds under which an award could be set aside under Sec.34 of the Act. Hence the remedy is not open to the appellant under Sec.34 of the Act. 14. The only controversy between both the parties is whether an application seeking extension of time under Sec.43(3) of the Act could be filed. The stand taken by the appellant is that an application for extension of time under Sec.43(3) of the Act is maintainable, and the Court has got its powers to do so. Contrarily, the learned Senior Counsel for the first respondent would submit that such an application

cannot be filed under Sec.43(3) of the Act since the same could be entertained only before the commencement of the arbitral proceedings. In order to resolve the controversy, this Court is of the considered opinion that it would be more apt and appropriate to reproduce Sec.43(3) of the Arbitration and Conciliation Act, 1996, as follows : "43. Limitations :- (1)... (2)... (3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper." 15. The very reading of the above provision would clearly indicate that the application @page-Mad44 for extension could be filed only before the commencement of the arbitral proceedings and not subsequently which would be very clear from the employment of the words "unless some step to commence arbitral proceedings is taken within a time fixed by the agreement". The learned Counsel for the appellant laid emphasis on the words "notwithstanding that the time so fixed has expired" and also "in the circumstances of the case undue hardship would otherwise be caused". This Court is of the considered opinion that the legislative intent was so clear that an application for extension of time under Sec.43(3) of the Act could be made even if the time stipulated under the agreement to refer the matter for arbitration was over, but the filing of the application should be before making any steps to commence arbitral proceedings and not thereafter. The Court, when an application for extension of time is filed, after the period for referring the matter to arbitration as per the agreement is over and before the commencement of the arbitral proceedings, for the purpose of extension of time has to consider, if not time extended, whether it would cause undue hardship and to grant time or refuse time taking into consideration the circumstances in that case. Hence no question of consideration of undue hardship would arise when an application was made after the commencement of the arbitral proceedings, and that too, in a case where the award has actually been passed. It can be well stated that after making a claim before the arbitral tribunal and being a party to the proceedings and obtaining an award on the question of limitation, at no stretch of imagination, the appellant could be allowed to make an application seeking extension of time to refer the matter to arbitration. 16. The contention put forth by the learned Counsel for the appellant that originally advice was sought for before the NSE; that the NSE gave instructions to him to approach the Court; that only on that ground, the application has been filed, and hence the application has got to be allowed cannot be countenanced in view of the provision of law that the Court cannot exercise its powers by extending time after the commencement of the arbitral proceedings. Merely because the instruction or advice was

given by NSE, such an extension cannot be ordered. Having lost his right for arbitration due to the delay caused, the appellant cannot be allowed to make an application under Sec.43(3) of the Act seeking extension of time. In a given case like this where he could not either make the remedy seeking to set aside the award made on the question of limitation, under Sec.34 of the Act or seek the extension of time under Sec.43(3) of the Act in view of the fact that he did not seek extension of time before the commencement of the arbitral proceedings, the only remedy open to him is to knock the doors of the Court of civil law. Though the award was passed on 11.3.2002, he has filed the application seeking extension of time only on 1.7.2007 which itself would cast a doubt on the bona fide of the appellant seeking extension of time after a lapse of two years when the application is not at all maintainable in accordance with law. Hence, the order of the learned Single Judge has got to be affirmed. 17. In the result, this original side appeal is dismissed confirming the order of the learned Single Judge. The parties will bear their costs. Appeal dismissed. AIR 2009 MADRAS 44 "A. Mohamed Ali v. T. N. Indl. Investment Corpn. Ltd." MADRAS HIGH COURT Coram : 2 ELIPE DHARMA RAO AND M. VENUGOPAL, JJ. ( Division Bench ) A. Mohamed Ali v. Tamil Nadu Industrial Investment Corporation Ltd. and Anr. W.A. No. 9 of 2005, D/- 26 -9 -2008.* State Financial Corporations Act (63 of 1951), S.29 - Contract Act (9 of 1872), S.128 - FINANCIAL CORPORATION - CONTRACT - Rights of Financial Corporation in case of default - Corporation can bring property of guarantor, which was offered as security, for sale, for realisation of amount due to it Liability of a principal debtor and surety being co-extensive, as per S.128 of Contract Act there is no need to exhaust remedies against principal debtor before enforcing liability of surety - Particularly, wherein whereabouts of principal debtor are not known even to surety/guarantor - Further guarantor cannot seek protection under guise that he is ignorant of consequences of his offering property as a security for loan obtained by principal debtor. AIR 2004 Kar 46, Dissented from. AIR 1992 Ori 157 and AIR 2002 P and H 74, Rel. on. @page-Mad45 Cases Referred : (2005) 4 SCC 456 AIR 2005 Mad 232 Chronological Paras 5, 8, 21 5, 9 (Paras 14, 15, 16, 17)

AIR 2005 Mad 297

5, 6

AIR 2004 Kar 46 : 2003 AIR -Kant HCR 2273 (Diss. from) 3 AIR 2002 P and H 74 (Rel. on) 3

AIR 1994 SC 2151 : 1994 AIR SCW 1953 5, 7, 18 AIR 1993 SC 1435 : 1993 AIR SCW 1189 : 1993 All LJ 515 5, 10 AIR 1992 Ori 157 (Rel. on) 3

AR. L. Sundaresan, Sr. Counsel, for M/s. A.L. Gandhimathi, for Appellant; R. Viduthalai, Sr. Counsel for M/s. Sampathkumar Associates and M. Kamalanathan, for Respondents. * Against order of Single Judge of this Court in W.P. No. 33499 of 2002, D/-30-11-2004. Judgement ELIPE DHARMA RAO, J. :- One M/s. Sun Electrical Industries, represented by its Proprietor A.Abdul Rahman, running business at the place of the appellant, has availed financial assistance of Rs.44,000/on 29.11.1984 for the purpose of purchase and erection of machinery for which the appellant stood as guarantor, offering his house property bearing Plot No.84-A, Thiruvalluvar Nagar, Kattur, Trichy as collateral security. It is seen from the records that the said borrower committed default in payments and therefore, the first respondent had issued a foreclosure notice under Section 29 of the State Financial Corporations Act, 1951. Thereafter, by letter dated 6.2.2002, the first respondent proposed to hold a tender-cum-public auction regarding the above said property belonging to the appellant and accordingly, after wide publicity, auction was conducted on 25.2.2002, wherein the second respondent became the highest bidder, with an offer of Rs. 1.90 lakhs. Before confirmation of the sale, the appellant had approached the first respondent and requested time to pay the amounts and by letter dated 11.3.2002, the first respondent directed the appellant to pay a sum of Rs.50,000/= before 20.3.2002 in addition to the sum of Rs.25,000/- already paid by him on 8.2.2002, so as to consider the request of the appellant. But, the appellant did not pay the same, but requested the first respondent to grant some more time to pay the amount in some installments, for which the first respondent, by the letter dated 9.8.2002, had directed the appellant to pay the auction amount within seven days. Aggrieved, the appellant filed W.P. No. 33499 of 2002, praying to issue a Writ of Certiorari, to call for the records relating to the auction dated 25.2.2002 conducted by the first respondent and letters dated 5.8.2002 and 9.8.2002 and quash the same. Since the learned single Judge has dismissed the writ petition, the appellant has preferred this writ appeal. 2. Heard Mr.AR.L.Sundaresan, learned senior counsel appearing for the appellant, Mr.R.Viduthalai, learned senior counsel appearing for the first respondent and Mr.M.Kamalanathan, learned counsel appearing for the second respondent/the successful bidder.

3. Mr.AR.L.Sundaresan, learned senior counsel appearing for the appellant would vehemently argue that in the case on hand, the first respondent has invoked Section 29 of the State Financial Corporations Act, which can be invoked only against the principal borrower and not against the surety and insofar as the property of the surety which was secured in favour of the first respondent corporation, the remedy, if any, lies under Section 31 of the Act or by having recourse to civil Court and not under Section 29 of the Act. In support of his contentions, the learned senior counsel for the appellant would rely on a judgment of the Division Bench of the Karnataka High Court in N. Narasimahaiah v. Karnataka State Financial Corporation and others [AIR 2004 Karnataka 46], wherein the Division Bench of the Karnataka High Court, while dissenting from the judgments of the Orissa High Court in Sulochana Nair v. Managing Director [AIR 1992 Orissa 157] and Punjab and Haryana High Court in Jasbir Kaur v. Punjab State Industrial Development Corporation Ltd. [AIR 2002 Punjab and Haryana 74], has held as follows : "Section 29 clearly states that the Financial Corporation shall have the right to take over the management of possession of the industrial concern. It does not refer to taking over of management or possession of the property belonging to the surety, which has been secured in favour of Financial Corporation. The Legislature has been careful in conferring such power, only against the industrial concern and not against the surety. In the absence of an express statutory provision, the power to take over the property of another, without intervention of Court, cannot be a matter of inference. Any attempt by State Financial Corporation (SFC) to take @page-Mad46 possession of a surety's property, even if mortgaged, in the absence of a specific authority by law, will fall foul of Article 300-A of the Constitution of India. S.29 specifically provides that the Financial Corporation shall have right to take over the management or possession or both of the industrial concern. The words are clear and unambiguous. If they are read literally or normally, they do not lead to any absurd result nor contract the object of the Act. There is no defect in Legislative drafting. There is no reference to surety's properties. The right to take over the management or possession or both is conferred only in regard to the industrial concern and not conferred in respect of the security offered by the surety. Therefore, it is not permissible to add words to S.29 and read the Section as authorising the Financial Corporation to take over the management of possession of the property of the sureties also." "Therefore, insofar as the property of the surety which is secured in favour of the State Financial Corporation, the remedy of the corporation lies either under S.31 of the Act or by having recourse to civil Court and not be recourse to S.29 of the Act. The remedy available to Financial Corporations against sureties, under S.31 of SFC Act is also speedy and efficacious remedy. Therefore, non-application of S.29 to the properties of surety will in no way prejudice the rights of the Financial Corporation against sureties." 4. On the contrary, on the part of the first respondent Corporation, the learned Senior Counsel would contend that the rights and liabilities of the surety are coextensive with that of the principal debtor and there is no equity in favour of a defaulting party, which may justify interference by the courts in exercise of its equitable extraordinary jurisdiction and in matters of the Financial Corporations, the writ court has

no say and the High Court, in exercise of jurisdiction under Article 226 cannot act as an appellate authority while reviewing quasi-judicial or administrative action. 5. In support of his arguments, the learned senior counsel for the first respondent would rely on the following judgments : 1. G.Kailasam v. The Tamil-Nadu Industrial Investment Corporation Ltd. (2006 (1) LW 298) : (AIR 2005 Mad 297). 2.The Andhra Pradesh State Financial Corporation v. M/s. Gar Re-rolling Mills and another (1994-2-LW 36) : (AIR 2994 SC 2151), 3. Karnataka State Industrial Investment and Development Corporation Ltd. v. Cavalet India Ltd. and others [(2005) 4 SCC 456], 4. Tamil Nadu Industrial Investment Corporation Ltd. v. Millenium Business Solutions Pvt. Limited [2004 (5) CTC 689) : (AIR 2005 Mad 232), 5.U.P.Financial Corporation v. Gem Cap (India) Pvt.Ltd. and Others [(1993) 2 SCC 299] : (AIR 1993 SC 1435). 6. In the first judgment cited above reported in 2006-1-L.W.298 : (AIR 2005 Mad 297), a Division Bench of this Court has held : ".... In other words, the relief available to the Corporation under Section 29 of the Act to realise its dues in the manner prescribed therein is wider in scope than the limited relief available to it under Section 31 of the Act and the same is not controlled by Section 31 of the Act. Inasmuch as State Financial Corporations Act is a special Act enacted by the Parliament with an object to recover the money due to the Financial Corporation/Institution, any interpretation which frustrates the right of the Corporation to recover its dues must be eschewed. There is no equity in favour of a defaulting party which may justify interference by the Courts in exercise of its equitable extraordinary jurisdiction under Article 226 of the Constitution of India to assist it in not repaying its debts. The aim of equity is to promote honesty and not to frustrate the legitimate rights of the Corporation which after advancing the loan takes steps to recover it dues from the defaulting party." 7. In the second judgment cited above, reported in 1994-2-L.W.36 : (AIR 1994 SC 2151), the Honourable Apex Court has held as follows : "On a conjoint reading of Ss.29 and 31 of the Act, it appears to us that in case of default in repayment of loan or any instalment or any advance of breach of an agreement, the Corporation has two remedies available to it against the defaulting industrial concern, one under S.29 and another under S.31 of the Act. The choice for availing the remedy under S.29 or S.31 of the Act is that of the Financial Corporation alone and the defaulting concern has no say whatsoever in the matter, as to which remedy should be taken recourse to by the Corporation against it for effecting the recovery...."

"There is no equity in favour of a defaulting @page-Mad47 party which may justify interference by the courts in exercise of its equitable extraordinary jurisdiction under Art.228 of the Constitution of India to assist it in not repaying its debts. The aim of equity is to promote honesty and not to frustrate the legitimate rights of the Corporation which after advancing the loan takes steps to recover it dues from the defaulting party...." 8. In the third judgment cited above, reported in (2005) 4 SCC 456, while rejecting the submissions about the genuine reason of the creditor for default and about nonco-operation of the Corporation in not rescheduling loan, the Honourable Supreme Court has held : "In a matter between the Corporation and its debtor, a writ court has no say except in two situations i.e. (a) where there is a statutory violation on the part of the Corporation, or (b) where the Corporation acts unfairly i.e. unreasonably. The High Court while exercising its jurisdiction under Article 226 of the Constitution does not sit as an appellate authority over the acts and deeds of the Financial Corporation and seek to correct them. The doctrine of fairness does not convert the writ courts into appellate authorities over administrative authorities. Unless the action of the Financial Corporation is mala fide, even a wrong decision taken by it is not open to challenge. It is not for the courts or a third party to substitute its decision, however, more prudent, commercial or businesslike it may be, for the decision of the Financial Corporation. Hence, whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed for making the Corporation liable. In commercial matters, the courts should not risk their judgments for the judgments of the bodies to which that task is assigned." 9. In the fourth judgment cited above, reported in 2004(5) CTC 689 : (AIR 2005 Mad 232), the First Bench of this Court has held : "No writ lies merely for directing one time settlement or for directing re-scheduling of loan or fixing installments in connection with loan. It is only the financial Institution/Bank which granted the loan which can re-schedule it. High Court has no jurisdiction under Article 226 to direct grant of One Time Settlement or re-scheduling of loan or fixing installments." 10. In the last judgment cited by the learned senior counsel for the first respondent, reported in (1993) 2 SCC 299 : (AIR 1993 SC 1435), the Honourable Apex Court has held that the 'High Court while reviewing the administrative action of the appellant Corporation under Article 226 cannot act as an appellate Court.' 11. On the part of the second respondent/ successful bidder, the learned counsel , besides adopting the arguments advanced on the part of the first respondent, would further submit that she became the successful bidder, offering highest amount and that the auction sale was confirmed in her favour on 27.2.2002 and confirmation to the sale was communicated to her on 1.8.2002 and she was always ready and willing to perform her part of the obligation by paying the rest of the amount and get the sale deed registered in her favour and would pray to dismiss this writ appeal. It has also been submitted on the

part of the second respondent that she has already paid the balance of amount on 12.1.2005 under a receipt issued by the first respondent and got the sale deed executed in her favour on 7.2.2005. 12. In the case on hand, there is no dispute that the appellant stood as a guarantor and offered his property as collateral security for the loan availed by one Abdul Rahman, Proprietor of M/s.Sun Electrical Industries. Even from the averments made by the appellant in his affidavit filed before the learned single Judge, it is seen that the said Abdul Rahman became a defaulter and his whereabouts are also not known and only in such circumstances, the first respondent Corporation has initiated proceedings under Section 29 of the Act and has also proceeded to bring the property for auction, wherein the second respondent emerged as the successful bidder. 13. The core contention of the appellant is that when a person stood as guarantor, he will be liable to pay the amount in case the principal debtor fails to pay the amount and in the case on hand, the first respondent Corporation without proceeding against the-principal debtor, has proceeded against the appellant, guarantor. The appellant would also submit that ignorant of the consequences, he offered his property as security to the principal debtor. 14. First of all it must be said that ignorance of law has no excuse and therefore, the appellant cannot seek protection under the guise that he is ignorant of the consequences @page-Mad48 of his offering the property as a security for the loan obtained by the principal debtor. Further, as has already been stated supra, the appellant himself has admitted that the whereabouts of the principal debtor are not known. When such is the position, the first respondent who has rendered financial assistance to the principal debtor on the security furnished by the appellant could not be blamed for having proceeded against the appellant. Only for that purpose, the Principle of Election has been enunciated in favour of the creditor and by exercising such election, granted by law, the first respondent Corporation has proceeded against the appellant, the guarantor. The liability of a principal debtor and surety being co-extensive, as per Section 128 of the Indian Contract Act, it follows that there is no need to exhaust the remedies against the principal debtor before enforcing the liability of the surety, particularly in cases of this nature, wherein, admittedly, the whereabouts of the principal debtor are not known even to the surety/guarantor. 15. For better appreciation, we shall now extract Section 29 of the State Financial Corporations Act, 1951, which reads as follows : "29. Rights of Financial Corporation in case of default (1) Where any industrial concern, which is under a liability to the Financial Corporation under an agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or both of the industrial concern, as well as the right

to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation. (2) Any transfer of property made by the Financial Corporation, in exercise of its powers under subsection (1), shall vest in the transferee all rights in or to the property transferred as if the transfer had been made by the owner of the property. (3) The Financial Corporation shall have the same rights and powers with respect to goods manufactured or produced wholly or partly from goods forming part of the security held by it as it had with respect to the original goods. (4) Where any action has been taken against an industrial concern under the provisions of sub-section (1), all costs, charges and expenses which in the opinion of the Financial Corporation have been properly incurred by it as incidental thereto shall be recoverable from the industrial concern and the money which is received by it shall, in the absence of any contract to the contrary, be held by it in trust to be applied firstly, in payment of such costs, charges and expenses and, secondly, in discharge of the debt due to the Financial Corporation, and the residue of the money so received shall be paid to the person entitled thereto. (5) Where the Financial Corporation has taken any action against an industrial concern under the provisions of sub-section (1), the Financial Corporation shall be deemed to be the owner of such concern, for the purposes of suits by or against the concern and shall sue and be sued in the name of the concern." 16. Admittedly, the property belonging to the appellant was offered as security to the first respondent towards the loan obtained by the principal debtor, whose whereabouts are not known. Therefore, in the light of the language used in Section 29(1), as has been extracted supra, the first respondent Corporation has the right to realise the property pledged, mortgaged, hypothecated or assigned to it. On a careful reading of the entire Section, we have no hesitation to hold that the power conferred under Section 29 is wide and it does not make any distinction between the assets of the industrial concern and assets not belonging to the industrial concern but mortgaged to the Corporation. The Section gives ample power to the Corporation to deal with the property either pledged, mortgaged or hypothecated or as signed by anyone including the surety of guarantor. Only exercising this power, the Corporation has brought the property of the appellant/guarantor, which was offered as a security, for sale, for realisation of the amount due to it, wherein the second respondent became the highest bidder, in which we are unable to find any illegality. Therefore, we are unable to appreciate the contentions raised on the part of the appellant 17. The State Financial Corporations have been established to create institutional framework for financing medium and small @page-Mad49

scale industries. The State Financial Corporations Act, 1951 was enacted by the Parliament with a view to promote industrialization and offer assistance by giving financial assistance in the shape of loans and advances, etc. repayable in instalments. The Act confers special privileges on the State Financial Corporations in the matter of enforcement of claims against borrowers. The Corporation has to recover the loans and advances, so as to be able to give financial resources assistance to other industries and unless it recovers its dues, the money will not remain in circulation for long. 18. At this juncture, we feel it apt to quote the observations of the Honourable Apex Court in A.P. State Financial Corporation case, (AIR 1994 SC 2151) (cited supra) : "17. The relief available to the Corporation under Section 29 of the Act to realise its dues in the manner prescribed therein is wider in scope than the limited relief available to it under Section 31 of the Act and is not controlled by S.31 of the Act. The Legislature clearly intended to preserve the rights of the Corporation under Section 29 of the Act, by expressly stating in S.31 of the Act, that its recourse to action under that Section is without prejudice to the provisions of S.29 of the Act.....Any interpretation which frustrates the right of the Corporation to recover its dues must be eschewed." 19. The learned senior counsel for the appellant would press into service a Division Bench judgment of the Karnnataka High Court, which has not favoured any action against the surety or his properties. But, it is to be mentioned that this judgment of the Division Bench of the Karnataka has been challenged before the Honourable Supreme Court in S.L.P.(Civil Nos.)15423- 5427 of 2003, wherein an order of stay has been granted by the Honourable Apex Court, by the order dated 27.1.2004. Therefore, no reliance can be pleaded on the above judgment of the Division Bench of the Karnataka High Court. 20. From the materials placed on record, it is clear that the auction sale was confirmed in favour of the successful bidder/ the second respondent on 27.2.2002 and confirmation to the sale was communicated to her on 1.8.2002, calling upon her to remit the balance of 90% of the bid amount. It has been asserted on the part of the second respondent that she is always ready and willing to remit the balance of the bid amount, which has not been denied by the first respondent Corporation also. It is seen that by the said communication dated 1.8.2002, the second respondent was given thirty days time for payment of the balance amount and in the meantime, the appellant filed the writ petition and obtained the interim order, as a result of which the second respondent could not pay the balance of the amount. Thereafter, on 12.1.2005, the second respondent paid the balance of amount of Rs.1,71,000/- under a receipt issued by the first respondent and on 7.2.2005, the first respondent has also executed a sale deed in favour of the second respondent. Copies of both these documents are submitted in the typed set of papers by the second respondent. Therefore, everything has come to a close on 7.2.2005, even before the order of status quo obtained by the appellant in this appeal in W.A.M.P.No.23 of 2005, dated 19.3.2005. 21. Admittedly, even though the property was auctioned, the first respondent, by the communication dated 9.8.2002 has given a time of seven days for the appellant to pay the auction amount, so as to stop the further proceedings, which opportunity was not availed by the appellant. While such is the factual position, as has been held by the Honourable Apex Court in Karnataka State Industrial Investment case

cited supra, 'it is not for the Courts or a third party to substitute its decision, however, more prudent, commercial or business like it may be, for the decision of the Financial Corporation and in commercial matters, the Courts should not risk their judgments for the judgments of the bodies to which that task is assigned.' Further, as has been further held in the judgments cited on the part of the first respondent there is no equity in favour of a defaulting party which may justify interference by this court in exercise of its extraordinary jurisdiction under Art.226 of the Constitution of India. In view of our above discussion, there is no merit in the writ appeal and the same fails and is dismissed accordingly. No costs. Appeal dismissed. @page-Mad50 AIR 2009 MADRAS 50 "State Bank of India v. Gopal" MADRAS HIGH COURT Coram : 1 S. TAMILVANAN, J. ( Single Bench ) State Bank of India v. Gopal alias Gopalan and Anr. C.R.P. (PD) No. 1581 of 2008 and M. P. No. 1 of 2008, D/- 10 -9 -2008. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), S.34 - SECURITY TRANSACTION - INTEREST - INJUNCTION - TENANCY - EVICTION - Injunction against proceedings under Act - Cannot be granted by civil Court - However, bare suit for injunction by tenant against forcible eviction by landlord/ Bank - Prayer of tenant is that he should not be evicted forcibly or illegally except under due process of law - Suit by tenant therefore, is not against any proceedings under Securitisation Act - Is not without jurisdiction or barred by any law - Injunction suit is maintainable - Being tenant of premises he is entitled to seek injunction even against landlord of property that he should not be evicted except under due process of law. (Paras 4, 5, 6)

M. Devaraj, for Petitioner; S. Lakshmanasamy, for Respondents. Judgement ORDER :- This Civil revision petition has been preferred against the order dated 19-12-2007 made In LA. No. 1004 of 2007 in O.S. No. 56 of 2007 on the file of the First Additional District Munsif Court, Erode. 2. The revision petitioner herein is the first defendant in the suit. The first respondent being the plaintiff in the suit has alleged that the revision petitioner is trying to evict him forcibly from the suit property. The first respondent herein as per the plaint is the tenant under the second respondent paying rent regularly. However, based on a mortgage obtained by the revision petitioner herein, the revision petitioner is trying to evict the first respondent from the suit property. He has also alleged that the

cause of action arose on 1-1-2001 when the plaintiff took the suit property on a lease agreement and continued his possession and on 4-9-2007, when the first defendant was trying to dispossess the first respondent/plaintiff. 3. Mr. M. Devaraj, learned counsel appearing for the revision petitioner submitted that there is no cause of action to maintain the suit. However, it is seen from the averments made in the plaint that there is a cause of action alleged by the first respondent/plaintiff as stated earlier for the prayer sought for and to maintain the suit pending before the Court below. The prayer sought for is permanent injunction restraining the first defendant, his men or agent etc., from in any manner dispossessing the first respondent/plaintiff from the suit property, except under due process of law. Learned counsel appearing for the petitioner would also submit that it is a suit filed under Order VII, Rule 11 of CPC and also Section 34 of the Securitisation Act. Order VII, Rule 11 of CPC reads as follows : "The plaint shall be rejected in the following cases a) Where it does not disclose a cause of action, b) Whether the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; d) where the suit appears from the statement in the plaint to be barred by any law; e) where it is not filed in duplicate; f) where the plaintiff falls to comply with the provisions of Rule 9." 4. It is admittedly a suit for bare injunction not to evict the tenant except under due process of law. Therefore, I am of the view that the suit is not barred by law. It is not in dispute that as per Section 34 of the Securitisation Act, no civil Court shall have the jurisdiction to entertain any suit in respect of any matter which a Debts Recovery Tribunal or any Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts due to Banks and Financial Institutions Act, 1993. 5. Here in the instant case, no injunction shall be granted by any Civil Court against the proceedings under the Securitisation Act pending before the Debt Recovery Tribunal or the Appellate Tribunal. The aforesaid provision of law is @page-Mad51 nothing to do with the prayer sought for in the suit since the respondent/plaintiff has not sought for an injunction against any proceedings under the Securitisation Act. The prayer of the first

respondent/plaintiff is that he should not be evicted forcibly or illegally except under due process of law. He being the tenant of the premises is entitled to seek injunction even against the landlord of the property that he should not be evicted except under due process of law. Hence it is open to the revision petitioner to take appropriate legal action against the respondent as per law to evict him from the suit property. Even if the suit is decreed, it is only against illegal eviction, which will not affect any legal action being taken to evict the respondent/plaintiff. Even by an undertaking given by the petitioner that the petitioner herein will not dispossess the respondent herein except under due process of law, the Court below can record the undertaking and dispose the suit, since the scope of the suit is limited. 6. In the aforesaid circumstances, it cannot be said that the suit filed by the first respondent/plaintiff is without jurisdiction or barred by any law since as alleged by him, he is a tenant in possession and enjoyment of the property. Therefore, I could find no error or infirmity in the impugned order passed by the Court below so as to warrant any interference of this Court. Hence, this Civil Revision Petition is dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed. Petition dismissed. AIR 2009 MADRAS 51 "P. K. Pandian v. Komala" MADRAS HIGH COURT Coram : 1 K. K. SASIDHARAN, J. ( Single Bench ) P. K. Pandian v. Komala. C.R.P. (PD) No. 3645 of 2007 and M.P. No. 1 of 2007, D/- 10 -7 -2008. Evidence Act (1 of 1872), S.65, S.74(2), S.76 - DOCUMENTS - POWER OF ATTORNEY - Secondary evidence relating to documents - Certified copy of power of attorney which is registered document on file of subregistrar - Is public document within meaning of S.74(2) of Evidence Act - Same is admissible in evidence as provided u/S.76 of Act. (Paras 9, 11, 12, 13) Cases Referred : Chronological Paras

2008 (1) CTC 97 (Mad) 16 AIR 2007 SC 1721 : 2007 AIR SCW 2713 15 AIR 1990 SC 396 14

N.R. Anantha Ramakrishnan, for Petitioner; Mrs. V. Tamizh Selvi, for Respondent. Judgement ORDER :- This civil revision petition is directed against the order dated 12.06.2006 in O.S.No. 488 of 1996 on the file of District Munsif, Ponneri, in and by which the document No. 1 produced by the revision

petitioner was rejected by the learned District Munsif, Ponneri on the ground that certified copy of power of attorney cannot be admitted in evidence. 2. The suit in O.S. No. 488 of 1996 has been preferred by the revision petitioner against the respondent before the trial Court praying for a decree of permanent injunction restraining the respondent, her men and agents and servants from alienating the plots in the suit property to any person in any manner and for awarding cost. 3. The factual matrix necessary for disposal of the civil revision petition are as under : (i) The respondent, being the original owner of the suit property, entered into an agreement with the revision petitioner to develop the property and to sell it to third parties by plotting out the same and accordingly, a registered power of attorney was executed in favour of the revision petitioner by the respondent on 29.01.1993. The said power of attorney was registered before the Sub-Registrar, Tamil Nadu Registration Department, Ponneri. As per the said power of attorney, the petitioner was appointed as the general power of attorney. The entire market value of the property has been paid by the petitioner to the respondent simultaneous with the execution of power of attorney on 29.01.1993. Accordingly, the property was divided into 26 plots by forming a road and laying stones after spending a huge amount for reclamation by the petitioner. All the 26 plots were sold to different people and the sale deeds were registered on the basis of the power of attorney executed by the respondent. While so, the petitioner received a notice dated 21.02.1995 from the respondent informing him that the general power of attorney has been revoked as per document dated 20.02.1995. Subsequently, there were mediation between the parties. However, the same did not materialise and when the petitioner found that the respondent made arrangement to sale the plots to third parties, he was constrained to file the suit for permanent injunction. @page-Mad52 (ii) The suit was resisted by the respondent on the ground that no consideration has been received by her for executing the power of attorney and the sale deed alleged to have been executed by the petitioner was not binding on her. It was further indicated in the said written statement that the revision petitioner, who got property on the east and west of the respondent's property in S.No.348/2D, contacted the respondent through her husband and requested her to leave a portion of the property on the southern side for necessary access for the plots so developed on the east as well as on the west. The property was subsequently developed by the respondent measuring 2.96 acres and a power of attorney was given to the revision petitioner on 29.01.1993 only in respect of the southern 50 cents out of 2.96 acres. However, subsequent to the registration of the power of attorney, the revision petitioner in collusion with the officials of the Registration Department seems to have changed the extent in the power of attorney to appear as if the extent is 1.50 acres on the southern side out of 2.96 acres in S.No. 348/2D. Accordingly, it was the contention of the respondent that the petitioner has no manner of right or interest in respect of the northern 1.46 acres out of the total extent of 2.96 acres in S.No. 348/2D and accordingly, the respondent prayed for dismissal of the suit.

(iii) The matter was subsequently posted for evidence and a proof affidavit on the side of the revision petitioner was filed on 21.06.2006. Along with the proof affidavit, the document No. 1, a certified copy of the power of attorney stated to have been executed by the respondent in favour of the revision petitioner has also been marked. The marking of the said document was objected to by the respondent on the ground that the original has to be produced and the secondary evidence is not permissible. (iv) The petitioner contended before the trial Court that the original was lost and the same was also mentioned in the plaint as well as in the proof affidavit and as such, he was entitled to lead secondary evidence. (v) The matter was considered by the learned trial Judge and having found that no factual foundation was laid in the plaint in respect of the loss of original, the learned trial Judge was pleased to reject the said document holding that the said document cannot be admitted in evidence. (vi) It is the said order dated 12.06.2006 rejecting the power of attorney as inadmissible, which has been challenged in the present revision. 4. I have heard Mr.N.R. Anantha Ramakrishnan, learned counsel appearing for the revision petitioner and Mrs.V. Tamizh Selvi, learned counsel appearing for the respondent. 5. The learned counsel for the revision petitioner submitted that the evidentiary value of a document is to be decided only at the time of trial and there is no legal prohibition in receiving the document subject to proof and relevancy. 6. Per contra, the learned counsel for the respondent contended that there were material alteration in the power of attorney and the revision petitioner committed forgery in collusion with the officials of the Registration Department and accordingly, the extent was corrected as if 1.50 acres of property was given to the revision petitioner by way of the power of attorney. It was the further contention of the learned counsel that there was no proper explanation for the loss of original and unless and until the loss of the original is accounted for, the revision petitioner cannot be permitted to produce secondary evidence. The learned counsel also relied on the judgment of the Apex Court in Yashoda, J. v. K.Shobha Rani reported in 2007(3) CTC 781 as well as the judgment of the Division Bench in Naval Kishore, J. v. D.Swarna Bhadran reported in 2008(1) CTC 97 for the proposition that as per Section 67 of the Evidence Act, unless the non-pro duction of original is satisfactorily explained, secondary evidence cannot be looked into. 7. I have considered the submission of the learned counsel on either side and I have also gone through the materials available on record. 8. The suit in O.S.No.488 of 1996 has been instituted by the revision petitioner on the factual premise that as per the power of attorney executed by the respondent on 29.01.1993, he was permitted to develop the land belonging to the respondent, having an extent of 1.50 acres and a certified copy of the said power of attorney is found to have been produced along with the plaint. However, the suit was

contested by the respondent on the ground that only an extent of 50 cents of property were given as per the said power of attorney and the revision @page-Mad53 petitioner with the connivance of the officials of the Registration Department fraudulently changed the extent as 1.50 acres instead of the original extent of 50 cents. Subsequently, during the course of trial, the petitioner attempted to mark the certified copy of the power of attorney as a document on his side. The same was objected to by the respondent mainly on the ground that loss of original has not been properly accounted in terms of Section 65 of the Indian Evidence Act. 9. The document produced by the revision petitioner as document No. 1 is found to be a certified copy of the power of attorney registered as document No. 13/1993 on the file of Sub-Registrar, Ponneri. Admittedly, the document is a registered document and what was produced by the revision petitioner was only a certified copy of the said document. Section 74 of the Indian Evidence Act, 1872, indicates as to what are all the documents which could be termed as public documents. As per Sub-Section 2 of Section 74, public records kept (in any State) of private documents are public documents. Section 76 mandates that every public officer having the custody of the public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of seal; and such copies so certified shall be called certified copies. 10. As per Section 77, such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. Section 79 of the Indian Evidence Act gives a statutory presumption with respect to the genuineness of certified copies. 11. Therefore, it is evident that the certified copy of the power of attorney produced by the petitioner is a public document within the meaning of Section 74(2) of the Indian Evidence Act and the same is admissible in evidence as provided under Section 76 of the Act. 12. It was the finding of the learned trial Judge in the impugned order that the secondary evidence can be admitted under Section 65 of the Indian Evidence Act, in case it is proved that the original has been lost or destroyed or for any other reason not arising from his own conduct or default. The learned trial Judge referred to Section 65 of the Indian Evidence Act and by observing that the petitioner has not laid the proper foundation to receive of the certified copy of the general power of attorney, appears to have rejected the said application. A reading of Section 65 of the Indian Evidence Act shows that the said provision permits secondary evidence in respect of the existence, condition or contents of a document and as per Section 65(f), secondary evidence is permissible, when the original is a document of which a certified copy is permitted by the Evidence Act, or by any other law in force in India to be given in evidence. In fact, Section 63 of the Evidence Act defines what is secondary evidence and certified copies given under the provisions contained in the Evidence Act and copies made from or compared with the originals are also considered as secondary evidence.

13. The alleged alteration in the original deed is a matter for evidence. It would be open to the respondent to summon the office copy of the document sought to be marked and to take steps to send the same for expert opinion. It is also possible for the respondent to take steps to prove her contention that there were alterations made in the document subsequent to the registration. Things would have been different, in case the document is not a registered one. 14. In Kalyan Singh v. Chhoti reported in AIR 1990 SC 396, the Apex Court observed that a certified copy of a registered sale deed can be produced as secondary evidence in the absence of the original and held as under : "25. The High Court said, and in our opinion very rightly, that Ex.3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counter-parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the @page-Mad54 absence of the original.........." 15. In J.Yashoda v. K. Shobha Rani (2007 (3) CTC 781) : (AIR 2007 SC 1721) relied on by the learned counsel for the respondent, the issue was relating to acceptance of secondary evidence being photocopies of the original documents. The matter arose from a judgment of the Andhra Pradesh High Court and the High Court found that the photocopies cannot be received as secondary evidence in terms of Section 63 of the Indian Evidence Act, since the documents in question were photocopies and as there were no possibility of the document, being compared with the original. It was in the said factual context that the Apex Court observed that secondary evidence is an evidence, which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The said decision has no factual application in the present case as only a certified copy is sought to be marked by the petitioner. 16. In J. Naval Kishore V. I. Swarnabhadran (2008 (1) CTC 97) a Division Bench of this Court considered the proof of execution of a Will as well as the issue relating to the marking of a xerox copy of the alleged family arrangement. It was in the said factual context that the Division Bench observed that as per Section 67 of the Indian Evidence Act, unless the non-production of the original is satisfactorily explained, secondary evidence cannot be looked into. Since the document sought to be marked in the said case was a xerox copy, the Bench observed that the possibility of manipulation in xerox copy cannot be ruled out. However, the facts of present case are entirely different and as such, the said judgment relied on by the learned counsel for the respondent has no application in the factual scenario of the present case. 17. Therefore, on a careful consideration of the entire matter, I am of the view that the learned trial Judge was not correct in rejecting the document on the ground that no proper factual foundation has

been laid in the plaint for production of secondary evidence. As such, I am inclined to allow this revision by setting aside the order of the learned trial Judge. The respondent would be at liberty to adduce evidence or to prove that there were material alterations in the registered document and it is open to her to file appropriate application before the trial Court, in case the document has to be subjected to expert opinion. It is needless to mention that the evidentiary value of the document and the contention advanced on the side of the respondent pertaining to alteration of the extent of property is a matter to be looked into by the trial Court on the basis of evidence and on merits and as per law. 18. The Civil Revision Petition is allowed, subject to the above observation. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. Petition allowed. AIR 2009 MADRAS 54 "G. Parimelazhagan v. State of Tamil Nadu" MADRAS HIGH COURT Coram : 1 K. K. SASIDHARAN, J. ( Single Bench ) G. Parimelazhagan v. State of T. N. and Anr. W.P. No. 28813 of 2007 and M.P. No. 1 of 2007, D/- 11 -8 -2008. Constitution of India, Art.14, Art.15 - Nursing Council Act (48 of 1947), S.16 - EQUALITY - NURSING COUNCIL - RESERVATION - Degree course in Nursing - Reservation in favour of women at 90% for admission to said degree course - Policy decision of State Government - Not violative of provisions of Act - Said Act has nothing to do with allocation of seats or reservation of seats in nursing institutions in particular State and in matter of admission to Nursing Schools, authority to fix quota is only State Government - Services of male nurses are confined only to Orthopaedic wards, psychiatry wards and medico legal cases whereas in all other branches services of female nurses are utilised - Prospectus not discriminatory, not violative of Art.14, Art,15. (Paras 13, 14, 15) Cases Referred : Chronological Paras 12

AIR 2003 SC 3331 : 2003 AIR SCW 4731 : 2003 Lab IC 3485 (1997) 11 SCC 638 11

AIR 1995 SC 1648 : 1995 AIR SCW 2586 :1995 Lab IC 2236 AIR 1994 SC 544 : 1993 AIR SCW 3994 AIR 1981 SC 1829 : 1981 Lab IC 1313 AIR 1979 SC 1868 : 1979 Lab IC 1307 9 8 8

10

AIR 1963 SC 649

9 8

AIR 1954 SC 321 : 1954 Cri LJ 886 AIR 1953 Bom 311 @page-Mad55 12

R. Suresh Kumar, for Petitioner; G. Sankaran, Spl. G.P. (Edn.), for Respondents. Judgement ORDER :- This writ petition has been preferred by a male Staff Nurse of Government Medical College Hospital, Kilpauk, Chennai praying for a writ of declaration to declare Clause 4(vii) of the prospectus issued by the second respondent for the degree of Bachelor of Science in Nursing for the academic year 2007-2008 as illegal and ultra vires of Articles 14 and 15 of the Constitution of India and inconsistent with the provisions of the Indian Nursing Council Act, 1947. 2. The factual matrix necessary for the disposal of the writ petition are as under : (a) The petitioner is a male nurse qualified with Diploma in General Nursing and Psychiatry and is working as a staff nurse in Government Medical College Hospital, Kilpauk, Chennai, since 2005. He is qualified for admission to degree course of Bachelor of Science in Nursing offered as per the prospectus issued for the year 2007-2008 by the second respondent. However he is aggrieved by the rule of reservation in favour of women at 90% and the limited seats earmarked for male nurses. (b) It was the contention of the petitioner in the writ petition that up to the year 2003-2004 selection was made on the basis of merit and seniority alone. Similarly for appointment to the service of State Government, initially a ratio was fixed between male and female and in the year 2001, the State Government as per G.O.Ms. No. 251 dated 18-9-2001 abolished the ratio and thereafter appointments were made strictly as per seniority from the waiting list maintained by the concerned employment exchange and no discrimination was made between male and female nurses. (c) It was the further case of the petitioner that the impugned clause No. 4 (vii) is a clear case of discrimination and the State Government is not having any such power to make reservation in favour of women and as such the same is violative of Articles 14 and 15 of the Constitution of India. It was further indicated that as per the age limit fixed in the prospectus a candidate should not have completed 40 years but however the maximum number of seats are only 30 for each academic year for the post of Bachelor of Science in Nursing and as such women candidates gets unfair advantage over male candidates and the said ratio, having no reasonable nexus is discriminatory and as such the petitioner has sought for declaring the same as ultra vires and unconstitutional. 3. In the counter affidavit filed by the second respondent it was indicated that as per the policy decision of the Government of Tamil Nadu for selection to Diploma course in Nursing as well as for B.Sc. Nursing

course, Government have prescribed the ratio of 1: 9 between men and women. It was further stated that services of male nurses are utilised in the Government Hospitals mainly in Orthopaedics wards, Psychiatry wards and Medico Legal Cases and except for those hard nature of cases, the women nurses are made use of in all the hospitals throughout the world. It was also the contention of the second respondent that majority of nursing works are rendered in the Hospitals by women nurses alone. For paediatric nursing and for nursing of Obstetrics and Gynaecology, female nurses are always preferred and this group form a considerable portion of the population. Similarly, services of female nurses are preferred for adolescent patients of both sexes and about 90% of patients are served by female nurses and their services are used in the wards of the hospitals such as casualty, labour, medical, surgical besides in operation theatres and post operative wards, blood bank and paediatric wards, neuro cardiology wards, surgery wards, etc., and the male nurses are utilised only in few departments. Moreover about 90% of the candidates who apply for Diploma course in Nursing as well as B.Sc. Nursing are female candidates and the Government took all these factors into consideration for making reservation for women at 90% and the remaining seats were earmarked for men. In short, the second respondent relied on the policy decision taken by the Government of Tamil Nadu as the basis for reservation and accordingly prayed for dismissal of the writ petition. 4. Learned counsel for the petitioner contended that the Indian Nursing Council Act is operating in the field and when there is a Central Legislation operating in the field and as no reservation was permitted in the said Legislation with respect to a particular sex, it is not possible for the State Government to come up with such a reservation and as such the same is clearly discriminatory and beyond the power of the State Government. @page-Mad56 Learned counsel also submitted that even for medical courses like Gynaecology, male students are now taking admission and as such it cannot be said that women alone are competent to undertake nursing to the exclusion of male nurses. According to the learned counsel discrimination on the basis of sex is clearly prohibited and as such the impugned provision is discriminatory as well as ultra vires and the same is liable to be quashed. 5. The only point for consideration in the present writ petition is as to whether the reservation granted in favour of women nurses at 90% of the total seats is discriminatory as it discriminates between male and female on the basis of sex? 6. Nursing is said to be a cumulative process of recognising, identifying and understanding the health requirements and meeting such heath needs of the members of the Society. This process also involves adequate care, nourishment as well as cleanliness both in respect of patients and as well as their surroundings. Women dominates in this field and takes care of patients as an affectionate sister as well as a caring mother. History of Indian Nursing was closely associated with nursing movement launched by the great lady Florence Nightingale popularly known as "Lady with a Lamp". Florence Nightingale took up the issue of sanitation in India in the year 1865 on account of the initiation taken by the Sanitary Commission of Bengal and for the first time nurses were appointed in India in the year 1914 and the said

appointment was made in the Queen Alexandra Military Nursing Services founded by none other than Florence Nightingale and it was later came to be known as Indian Military Nursing Service. Literature on the subject of nursing also shows that it was only the Florence Nightingale system of training of nurses which was introduced in India. In fact training of nurses in the erstwhile Government of Madras was stated to have been commenced way back in the year 1871. In the course of time laws were enacted for proper implementation of Nursing Education and accordingly the Indian Nursing Council Act and State Nursing Council Act came into force. When we consider the history of this profession, it can be said without any doubt that mainly women occupied this field and as such the present reservation of 10% for men has in fact been carved out from the 100% reservation given to women candidates earlier, though not by way of any particular Government Order. 7. The very concept of nursing implies the service of women nurses. In fact originally the entire seats for Diploma as well as degree in Nursing were filled up by women students. The present reservation in favour of women cannot be said to be something new and it is in the other way round. Out of the total seats, 10% seats are now reserved in favour of men and the other 90% is sought to be filled up from women candidates. This practice is not something peculiar to Tamil Nadu alone and in other States also the same practice is being followed. In fact for admission to nursing courses in Dr. R. M. L. Hospital and Safdarjung Hospital run by the Government of India, the entire seats are reserved for unmarried female candidates and the same is the case with some of the other States also. Therefore it cannot be said that only in Tamil Nadu such a reservation is made in favour of women candidates. The Government on the basis of the materials took a policy decision to reserve 90% seats to women and such decision cannot be held to be invalid on the basis of discrimination on the basis of sex. 8. In Air India v. Nergesh Meerza, (1981) 4 SCC 335 : (AIR 1981 SC 1829), the Apex Court considered the issue in respect of discrimination on the ground of sex and it was held that there is no prohibition for such a discrimination under Articles 15(1) and 16(2) of the Constitution of India and observed thus : 68. Even otherwise, what Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations. On this point, the matter is no longer res integra but is covered by several authorities of this Court. In Yusuf Abdul Aziz v. State of Bombay and Husseinbhoy Laljee, AIR 1954 SC 321 sex was held to be a permissible classification. While dealing with this aspect of the matter this Court observed thus : "Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and @page-Mad57 children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code."

69. The same view was taken by this Court in a later decision in Miss C.B. Muthamma v. Union of India, AIR 1979 SC 1 868 where Krishna Iyer, J. speaking for the Court made the following observations : (SCC p. 262, Para 7) : "We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the Rule of equality must govern." 9. In Toguru Sudhakar Reddy v. Govt. of A.P., 1993 Supp (4) SCC 439 : AIR 1994 SC 544, the issue was with regard to the Constitutional validity of Andhra Pradesh Cooperative Societies Act, 1964 as amended in the year 1991, by which a proviso was added to Section 31 (1)(a) of the said Act, whereunder the Registrar was given power to nominate two women members to the Committee of such class of societies and in such manner as may be prescribed from among women members of the general body of such societies and such nominated women members shall, notwithstanding any- thing contained in the Andhra Pradesh Co-operative Societies Act have the right to vote and otherwise to take part in the proceedings of the meetings of the Committee. The said provision was challenged as violative of Article 14 of the Constitution of India and also on the ground that total reservation would go beyond 50% which is not permitted in view of the law laid down by the Apex Court in M. R. Balaji v. State of Mysore, (AIR 1963 SC 649) and the Apex Court rejected the said contention and upheld the decision of the Andhra Pradesh High Court that reservation of more than 50% was permissible and that the ratio in Balaji's case was only confined to the reservations under Articles 15(4) and 16(4) of the Constitution of India. 10. The Apex Court in Govt. of A.P. v. P. B. Vijayakumar, (1995) 4 SCC 520 : AIR 1995 SC 1648, considered the scope and ambit of Articles 14, 15 and 16 of the Constitution of India in the light of the contentions raised in the said case with regard to discrimination on the ground of sex in public employment under the State and held thus : "6. This argument ignores Article 15 (3). The interrelation between Articles 14, 15 and 16 has been considered in a number of cases by this Court. Article 15 deals with every kind of State action in relation to the citizens of this country. Every sphere of activity of the State is controlled by Article 15 (1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Articles 15(1) and 15(3) go together. In addition to Article 15 (1), Article 16 (1), however, places certain additional prohibitions in respect of a specific area of State activity viz. employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article 16 (3) permits the State to prescribe a requirement of residence within the State or Union Territory by parliamentary legislation; while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an office

in connection with the affairs of the religious or denominational institution. Therefore, the prohibition against discrimination on the grounds set out in Article 16 (2) in respect of any employment or office under the State is qualified by Clauses (3), (4) and (5) of Article 16. Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and 16 - the former being a more general provision and the latter, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15 (3). This power conferred by Article 15(3) is wide enough to cover the entire range of State activity including employment under the State. 7. The insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically @page-Mad58 handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15 (3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15 (3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15 (3). This power conferred under Article 15 (3), is not whittled down in any manner by Article 16." 11. In Union of India v. K. P. Prabhakaran, 1997 (11) SCC 638, the issue before the Apex Court was in relation to the decision taken by the Railway Administration to the effect that both upper and lower class reservation counters in the Reservation Offices in the metropolitan cities of Madras, Bombay, Calcutta and Delhi would have to be manned only by women. As per the circular dated 30-6-1978, it was decided that the Reservation Offices in the said metropolitan cities should constitute a seniority unit separate from the rest of the Enquiry and Reservation cadre in the Railways. The said decision was challenged before this Court and the same was quashed on the ground that it was violative of the provisions of Articles 14 and 16 (1) and (2) of the Constitution of India and the Court reject the contention of the Railways that it was protected by Article 15(3) of the Constitution. The High Court also observed that Article 15 (3) of the Constitution cannot be read as a proviso or an exception qualifying or restricting the guarantee under Articles 16(1) and (2) of the Constitution. While setting aside the judgment of this Court in the said case, the Apex Court observed that since Articles 15(1) and 15(3) go together the protection of Article 15(3) would be applicable to employment under the State falling under Articles 16(1) and 16(2) of the Constitution. 12. In Vijay Lakshmi v. Punjab University, (JT 2003(8) SC 259) : (AIR 2003 SC 3331), the issue before the Apex Court was in respect of reservation in favour of women for being appointed as Principal of Government College for Women and after considering the policy decision of reservation for females and

right to equality, the Apex Court held that sex is a sound basis for classification and Article 15 (3) categorically empowers the State to make special provision for Women and Children and held thus :"5. In the light of the aforesaid principles, on the concept of equality enshrined in the Constitution, it can be stated that there could be classification between male and female for certain posts. Such classification cannot be said to be arbitrary or unjustified. If separate colleges or schools for girls are justifiable, rules providing appointment of a lady Principal or teacher would also be justified. The object sought to be achieved is a precautionary, preventive and protective measure based on public morals and particularly in view of the young age of the girl students to be taught. One may believe in absolute freedom, one may not believe in such freedom but in such case when a policy decision is taken by the State and the rules are framed accordingly, it cannot be termed to be arbitrary or unjustified. Hence, it would be difficult to hold that the rules empowering the authority to appoint only a lady Principal or a lady teacher or a lady doctor or a woman Superintendent are violative of Article 14 or 16 of the Constitution. 6. Secondly, such reservation by the State is permissible in exercise of powers conferred under Article 15 (3), which provides thus : "15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.- (3) Nothing in this article shall prevent the State from making any special provision for women and children." Policy decision of reservation for females and right to equality; ......... 9. (b) In Dattatraya Motiram More v. State of Bombay, (AIR 1953 Bom 311) provisions of the Bombay Municipal Boroughs Act, 1925 which reserved seats for women in the election were challenged on the ground that they offended Articles 14, 15 and 16 of the Constitution. That contention was negatived by the Court and explaining the scope of Article 15, the Court (Chagla, C.J.) observed that it must always be borne in mind that the discrimination which is not permissible under Article 15 (1) is a discrimination which @page-Mad59 is only on one of the grounds mentioned in Article 15 (1). If there is a discrimination in favour of a particular sex, that discrimination would be permissible provided it is not only on the ground of sex, or, in other words, the classification on the ground of sex is permissible provided that classification is the result of other considerations besides the fact that the persons belonging to that class are of a particular sex. The Court further held thus : "............Article 15(3) is obviously a proviso to Article 15(1) and proper effect must be given to the proviso. It is true that in construing a proviso one must not nullify the section itself. A proviso merely carves out something from the section itself, but it does not and cannot destroy the whole section. The proper way to, construe Article 15(3), in our opinion, is that whereas under Article 15(1) discrimination in favour of men only on the ground of sex is not permissible, by reason of Article 15(3) discrimination in

favour of women is permissible, and when the State does discriminate in favour of women, it does not offend against Article 15(1). Therefore, as a result of the joint operation of Article 15(1) and Article 15(3) the State may discriminate in favour of women against men, but it may not discriminate in favour of men against women........" 13. The learned counsel for the petitioner contended that the impugned reservation is per se violative of the provisions of Indian Nursing Council Act, 1947. According to the counsel the State Government is not empowered to make regulations or policy decision to reserve seats on the basis of sex when there is no power conferred under the Nursing Council Act. The Nursing Council Act, 1947 has been enacted for the purpose of constitution of Indian Nursing Council in order to establish uniform standard of training for nurses, midwives and health visitors. The Act provides for constitution and composition of Council, recognition of qualifications and procedure regarding recognition and maintenance of Indian Nursing Register. The said Act also provides for a State Council to regulate the registration of nurses, midwives or health visitors in the concerned States and the degree or diploma conferred by various universities are recognised as qualification for registration as a nurse. The said Act has nothing to do with the allocation of seats or reservation of seats in nursing institutions in a particular State and in the matter of admission to the Nursing Schools, the authority to fix the quota is only the State Government, as there is no contra-indication in the Indian Nursing Council Act and as such the contention of the learned counsel for the petitioner that the impugned reservation is in conflict with the provisions of Indian Nursing Council Act, 1947 is devoid of merits. 14. The impugned provision was made in the prospectus on the basis of the Government policy taken on consideration of relevant materials and taking into consideration the necessity for effective nursing. The fact that females alone were seeking admission for nursing course and thus it was a female dominated field was also taken into consideration by the Government while formulating such policy. The counteraffidavit filed by the second respondent clearly shows that for Paediatric nursing, nursing for Obstetrics and Gynaecology, casualty, labour wards, medical wards, surgical wards, operation theatres, post operative wards, blood bank, etc., services of female nurses are absolutely necessary and the male nurses are utilised only in few departments. The services of male nurses are confined to Orthopaedic wards, psychiatry wards and medico legal cases and in all other branches services of female nurses are utilised. It was also indicated that 90% of the candidates, who apply for diploma in Nursing as well as the course in B.Sc. Nursing are all female candidates and these relevant materials were taken into consideration by the Government for the purpose of reservation of seats in favour of the female students. These details furnished in the counter-affidavit cannot be said to be incorrect. Moreover, as indicated earlier, in respect of admission to nursing institutions run by the Government of India, entire seats are reserved for unmarried female candidates. 15. In view of the reasons aforesaid, I do not find any merit in the contention of the petitioner and I hold that Sl. No. 4(vii) of the prospectus is intra vires and is not discriminatory and is also not violative of any of the provisions of the Constitution of India and as such the same is valid and enforceable. 16. In the result, the writ petition is dismissed. Consequently, the connected MP is also dismissed. No costs.

Petition dismissed. @page-Mad60 AIR 2009 MADRAS 60 "T. Venkateswaran v. Muthuraj" MADRAS HIGH COURT Coram : 2 A. K. GANGULY, C. J., AND F. M. IBRAHIM KALIFULLA, J. ( Division Bench ) T. Venkateswaran v. Muthuraj and Ors. W.A. No. 545 of 2008, D/- 3 -11 -2008.* Protection of Human Rights Act (10 of 1994), S.36(2), S.13 - HUMAN RIGHTS - COMMISSIONS Jurisdiction of commission - Limitation to entertain complaint - Complaint filed within 4 months from act constituting violation of human rights - Commission, however, taking enquiry of matter after period of one year - Commission not powerless to do so - Piling of complaint by aggrieved person before commission shall be construed as initiation of proceedings before commission - S.36(2) does not create a judicial bar on commission in taking up enquiry of matter after period of one year in such cases Purposive interpretation of provision is necessary. 008 (1) Mad LJ 352, Reversed. If a petition is filed by an aggrieved person before the Commission within one year from the date of incident, the period must stop running. The filing of the petition by an aggrieved person before the Commission shall be construed as initiation of the proceedings before the Commission. Complaint, which was filed by the appellant immediately after four months from the date of incident before the State Commission, is filed within time and within the period of limitation prescribed u/S. 36(2) of the said Act. The commission was therefore within its right by issuing summons and conducting hearing on the same after a year. (Para 23) It appears that u/S. 13 of the said Act, the Commission has been given power to enquire into the complaints and in doing so, it also shall have powers of the Civil Court to try a suit under the Code of Civil Procedure in certain matters and one of that is summoning and enforcing the attendance of witnesses. Therefore, once the complaint is lodged with the Commission, the time the Commission will take to enquire into the allegations by issuing summons does not depend on the person lodging the complaint. The complainant cannot monitor the proceedings of the Commission. May be in a case of gross delay or negligence on the part of the Commissioner, the complainant can ask for a mandamus. Normally the action of the Commission depends upon the pending business before it and sometimes the Commission is having larger pendency of complaints, as is the experience of this Court and Courts all over the Country. In matters of violation of human rights many complaints are not filed before the commission. (Para 15)

Provision of S. 36(2) of the Act cannot be construed as creating a judicial bar on the Commission in taking up the enquiry of a matter after the period of one year from the date the act constituting the violation of right is alleged to have been committed or else. In most of the cases the Commission will not be able to enquire in respect of complaints made before it within a period of one year from the alleged incident of violation of human rights and the entire provisions of the Act will become a dead letter. Any interpretation which is unjust or absurd must be eschewed and the Court must adopt principles of reasonable and harmonious construction in consonance with the avowed statutory purpose. This is known as purposive interpretation. (Paras 15, 16) Cases Referred : Chronological Paras 12, 13 20, 22

AIR 2004 SC 1272 : 2004 AIR SCW 126

AIR 2001 SC 2763 : 2001 AIR SCW 3025 : 2001 Cri LJ 4175

AIR 2000 SC 1136 : 2000 AIR SCW 722 : 2000 Cri LJ 1700 : 2000 All LJ 720 19, 20 AIR 1999 SC 340 : 1998 AIR SCW 3743 : 1999 Cri LJ 456 4, 11 N. Kanthimathi, for Appellant; P. Rathinavel (for No. 1) and Raja Kalifulla, Govt. Pleader (for Amicus Curiae), for Respondents. * Against order of single Judge of this Court in W.P. No. 19576 of 2003, D/-20-11-2007, reported in 2008 (1) Mad LJ 352. Judgement A. K. GANGULY, C. J. :- Heard learned counsel for the parties including the learned counsel for the writ petitioner. 2. The facts of the case can be briefly stated as follows :The appellant, who was the second respondent in the writ petition, filed on 01.07.2002 a complaint before the Tamil Nadu State Human Rights Commission (hereinafter referred to as the Commission) alleging that the first respondent herein acted in violation of the human rights of the appellant by physically assaulting him and using filthy language against him without @page-Mad61 any reason and thus preventing the appellant from recovering his gold ornaments from one M.M. Rangaswamy of Lakshmi Gold Bankers and his agents. We are not going into the merits of those allegations. When such a complaint was filed on 01.07.2002 before the Commission in respect of an incident which took place on 28.02.2002, it was filed very much within one year. On the said complaint being filed, the Commission issued summons on 16.4.2003 and hearing took place before the Commission on 13.05.2003. On 13.05.2003, hearing was adjourned and before further hearing could took place on the adjourned date, a writ petition was filed by the first respondent and a stay was

granted by this Hon'ble Court on 16th July, 2003. Thereafter, the writ petition was heard by the learned Judge and by the impugned judgment, the learned Judge was pleased to quash the complaint and allowed the writ petition. Against the said judgment, this appeal has been filed. 3. In the judgment of the writ court, the learned Judge construed the provisions of Section 36(2) of The Protection of Human Rights Act, 1995 (hereinafter referred to as the "said Act"). The said provision of Section 36(2) of the said Act is set out below. "36. Matters not subject to jurisdiction of the Commission :(1). . . . . . . (2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed." 4. Construing the said provision, the learned Judge of the writ court, by considering the decisions of the Supreme Court in the case of Paramjit Kaur v. State of Punjab and others, 1999(2) SCC 131 : (AIR 1999 SC 340), held that the provision of Section 36(2) of the said Act is mandatory and creates a judicial bar on the Commission in taking up the enquiry of a matter after the period of one year from the date the act constituting the violation of right is alleged to have been committed. The learned Judge also held that there is no provision in the said Act for extending the said period of limitation and only in extraordinary circumstances, the complaint can be enquired into after the period of one year, but the learned Judge held that in the instant case there are no extraordinary circumstances, for which the Commission can conduct enquiry beyond the period of one year, and as such quashed the proceedings. 5. In this matter, we have appointed Mr.Raja Kalifulla, learned Government Pleader, as amicus curiae, and the learned Government Pleader has fairly assisted the Court. 6. We are unable to accept the aforesaid reasoning of the learned Judge in construing the provisions of Section 36(2) of the said Act for the following reasons. 7. The rationale behind the enactment of the said Act appears from its Statement of Objects and Reasons. From the said Statement of Objects and Reasons, it appears that India is a party to the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of United Nations on 16th December, 1966, and the human rights embodied in the aforesaid international covenants are substantially protected by our National Charter. A growing and abiding concern for Human Rights was felt in this country and abroad in view of changed social realities and the emerging trends in the nature of rights. It was therefore decided to have a law devising efficient and effective method to protect Human Rights and with the same purpose, the said Act was enacted. The Preamble of the said Act also voices the same concern, and it runs as follows :-

"An Act to provide for the Constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto." (Emphasis supplied) 8. In consonance with the above objectives as manifest in the Statement of Objects and Reasons, and the Preamble of the said Act, the definition of Human Rights under Section 2(d) of the said Act is in very wide terms. Section 2(d) is worded as under :"Human Rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India": 9. Therefore, any interpretation of Section 36(2) of the said Act must be guided by the governing ideas in enacting the law. So, @page-Mad62 unless a contrary indication is clearly expressed in the statute, an interpretation which furthers the underlying concept of protecting human rights must be preferred to the one which frustrates it. Going by those principles, we find that in this case, the Commission, after taking the petitioners complaint on file, in other words after taking cognizance of the said complaint, issued summons. These facts have also been noted by the learned Judge in paragraph-3 of the judgment under appeal. It is stated that the case was taken on file in Case No. 3950 of 2002/SS by the Commission and then summons were issued by the Commission by order dated 16-4-2003 asking the parties to appear before the Commission on 13-52003. 10. In the context of these facts, the question is what should be the interpretation of Section 36(2) of the said Act. There are two decisions of the Supreme Court which have been cited. 11. The first one was rendered in the case of Paramjit Kaur v. State of Punjab and others 1999 (2) SCC 131 : (AIR 1999 SC 340). In that case, the learned Judges of the Supreme Court gave certain directions to the Commission on a petition under Article 32 of the Constitution to examine the complaints about violation of human rights in Punjab as disclosed on a CBI report. A question arose whether in view of the provisions under Section 36(2) of the said Act the Commission can enquire into the matter. The Commission by its order overruled the objection. Thereafter, the order of the Commission was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court upheld the stand of the Commission and held that when the Supreme Court in exercise of the plenitude of its jurisdiction under Article 32 of the Constitution asked the National Human Rights Commission to deal with certain matters, and therefore all the authorities are bound by those directions and have to act in aid of the Supreme Court and the National Human Rights Commission is no exception. The Commission would therefore act 'sui juris' pursuant to the direction of the Supreme Court and not under the Act, and as such the Hon'ble Supreme Court gave the Commission a free hand and held it is not circumscribed by any conditions. Strictly speaking, the ratio in Paramjit Kaur is not applicable to the facts of this case. In that case, the

Commission was directed under the orders of the Hon'ble Supreme Court passed in an Article 32 proceeding. 12. The judgment in N.C. Dhoundial v. Union of India, 2004 (2) SCC 579 : (AIR 2004 SC 1272) was cited by the learned counsel for the first respondent in order to urge that in that case Section 36(2) of the said Act has been construed by the Hon'ble Supreme Court to hold that the said section provides a jurisdictional bar on the Commission to enquire into any allegation one year after it has been committed. The, learned counsel also relied on the observation of the Supreme Court in N.C. Dhoundial and argued that the said Act does not contain any provision for extending the period of limitation. 13. Looking to the facts in Dhoundial, (AIR 2004 SC 1272), we find that in that case, the complaint was lodged after a period of more than four years. The complaint was that one Ashok Kumar Sinha was allegedly wrongfully detained from 25.3.1994 to 3.4.1994 and harsh treatment was meted out to him which aggravated his disease which he was suffering from. But a complaint about violation of his human rights out of the same incident was made before the National Human Rights Commission by Sinha on 19.8.1998. Therefore, the complaint was filed almost four years four months after the alleged incident of unlawful detention. On those facts, the learned Judges of the Supreme Court construed Section 36(2) of the said Act and held that the Commission has no jurisdiction to enquire into the allegation of alleged violation of human rights, since the complaint was lodged more than four years after the incident of alleged wrongful detention. So the ratio in Dhoundial is not attracted here. It is pertinent to note that in Dhoundial case the Hon'ble Supreme Court itself has stated in paragraph 17 that one year period for taking up the enquiry into the complaint, therefore, came to an end by 3-4-1995 since the detention of the complaint ended on 3-4-1994. So it is clear that within one year of the occurrence, the complaint could be preferred before the Commission. 14. In the instant case, the complaint has been lodged by the appellant with the Commission within about four months from the date of the alleged act of violation of human rights. But thereafter the Commission took some time in acting on the complaint. It cannot be said that in view of Section 36(2) of @page-Mad63 the said Act the Commission is powerless to do so in this case even though complaint was lodged by the appellant before it within four months of the alleged incident. 15. It appears that under Section 13 of the said Act, the Commission has been given power to enquire in to the complaints and in doing so, it also shall have powers of the Civil Court to try a suit under the Code of Civil Procedure in certain matters and one of that is summoning and enforcing the attendance of witnesses. Therefore, once the complaint is lodged with the Commission, the time the Commission will take to enquire into the allegations by issuing summons does not depend on the person lodging the complaint. The complainant cannot monitor the proceedings of the Commission. May be in a case of gross delay or negligence on the part of the Commission, the complainant can ask for a Mandamus. Normally the action of the Commission depends upon the pending business before it and some times the Commission is having large pendency of complaints, as is the experience of this Court and Courts all over the Country. In matters of violation of human rights many complaints are now filed before the

Commission. So, if we accept the interpretation which has been given by the learned Judge of the writ court on Section 36(2) of the said Act then in most of the eases the Commission will not be able to enquire in respect of complaints made before it within a period of one year from the alleged incident of violation of human rights and the entire provisions of the Act will become a dead letter. 16. It is well settled as a canon of construction that by an interpretative process Court cannot reach a conclusion which makes it impossible for remedies given under the law to be worked out. Any interpretation which is unjust or absurd must be eschewed and the Court must adopt principles of reasonable and harmonious construction in consonance with the avowed statutory purpose. This is known as purposive interpretation. The construction put on Section 36(2) of the said Act by the learned Judge of the writ court makes the whole Act unworkable. Such an interpretation cannot be upheld. 17. Reference in this connection may be made to the well known treatise of Crawford on Statutory Construction (1940, Saint Louis, Thomas Law Book Company). At page 299-300 of the book. The learned author has formulated :"Similarly, if the construction is absurd, ridiculous or viciously unjust, it should not be accepted." The learned author has further emphasized at page 299 as follows :"If the basic legislative intent is to promote or advance the peoples standards of justice and propriety, then it is surely proper for the courts to be concerned with such intent. All laws should, as a result, be construed with reference to this intent." 18. In this connection, reference may be made to a somewhat similar provisions in Contempt of Courts Act, 1971, on the question of limitation. Section 20 of Contempt of Courts Act, 1971, which provides for limitation, runs as follows :"Limitation for actions for contempt :- No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed." 19. Considering the said section, the Hon'ble Supreme Court in the case of Om Prakash Jaiswal v. D. K. Mittal reported in 2000 (3) SCC 171 : (AIR 2000 SC 1136) held that proceedings can be said to have been initiated under Section 20 of the Act only when the Court forms an opinion by application of mind that a prima facie case for initiation of proceedings is made out and issue notice to the alleged contemnor to show cause why he should not be punished for contempt. Mere filing of contempt petition and issuance of notice calling upon the alleged contemnor to show cause why contempt proceedings be not initiated against him would not amount to initiation of contempt proceedings for the purpose of Section 20. 20. Later on, a three-Judge Bench of the Supreme Court in the case of Pallav Sheth v. Custodian and Ors. reported in 2001 (5) Supreme 763 : (AIR 2001 SC 2763) came to hold that the Supreme Court in Om Prakash Jaiswal (AIR 2000 SC 1136) took too narrow a view of Section 20 and if that view is taken then it is going to cause hardship and will perpetrate injustice. The relevant observations, on the principle of

purposive construction which have been made by the Hon'ble Supreme Court in paragraph 42 at page 779 of the report, are set out below :"The decision in Om Prakash Jaiswal case @page-Mad64 to the effect that initiation of proceedings under Section 20 can only be said to have occurred when the court formed the prima facie opinion that contempt has been committed and issued notice to the contemner to show cause why it should not be punished, is taking too narrow a view of Section 20 which does not seem to be warranted and is not only going to cause hardship but would perpetrate injustice. A provision like Section 20 has to be interpreted having regard to the realities of the situation. For instance, in a case where a contempt of a subordinate court is committed, a report is prepared whether on an application to court or otherwise, and reference made by the subordinate court to the High Court. It is only thereafter that a High Court can take further action under Section 15. In the process, more often than not, a period of one year elapses. If the interpretation of Section 20 put in Om Prakash Jaiswal case is correct, it would mean that notwithstanding both the sub-ordinate court and the High Court being prima facie satisfied that contempt has been committed the High Court would become powerless to take any action. On the other hand, if the filing of an application before the sub-ordinate court or the High Court, making of a reference by a subordinate court on its own motion or the filing of an application before an Advocate-General for permission to initiate contempt proceedings is regarded as initiation by the court for the purposes of Section 20, then such an interpretation would not impinge on or stultify the power of the High Court to punish for contempt which power, dehors the Contempt of Courts Act, 1971 is enshrined in Article 215 of the Constitution. Such an interpretation of Section 20 would harmonise that section with the powers of the courts to punish for contempt which is recognised by the Constitution." 21. In the present case the provision of Article 215 is not attracted. But from the definition of Human Rights it is clear that Human Rights defined under the said Act encompasses right to life, liberty, equality and dignity of individual guaranteed by the Constitution. Therefore, the Human Rights Commission has to perform very important functions in protecting fundamental rights of the complainant. And the Commission has been set up for that purpose. 22. This Court is therefore of the opinion if a petition is filed by an aggrieved person before the Commission within one year from the date of incident, the period must stop running. The filing of the petition by an aggrieved person before the Commission shall be construed as initiation of the proceedings before the Commission. Same view has been expressed in Pallav Seth, (AIR 2001 SC 2763) on the interpretation of Section 20 of the Contempt of Courts Act, 1971. Please see the observations in paragraph-40 at page 779 of the report and they are as under :"In other words, the beginning of the action prescribed for taking cognizance of criminal contempt under Section 15 would be initiating the proceedings for contempt and the subsequent action taken thereon of refusal or issuance of a notice or punishment thereafter are only steps following or succeeding to such initiation. Similarly, in the case of a civil contempt filing of an application drawing the

attention of the Court is necessary for further steps to be taken under the Contempt of Courts Act, 1971." 22A. For the reasons aforesaid, we are constrained to set aside the judgment given by the learned Judge of the writ court. 23. We hold that the complaint, which was filed by the appellant immediately after four months from the date of incident before the State Commission, is filed within time and within the period of limitation prescribed under Section 36(2) of the said Act. The Commission was therefore within its right by issuing summons and conducting hearing on the same. We, therefore, direct the Commission to proceed in the matter in accordance with law. The appeal is allowed. The impugned judgment is quashed. No costs. Appeal allowed. AIR 2009 MADRAS 64 "Veeran v. Veeravarmalle" MADRAS HIGH COURT Coram : 1 K. VENKATARAMAN, J. ( Single Bench ) Veeran v. Veeravarmalle and Anr. C.R.P. (PD) No. 2285 of 2007 and M.P. No. 1 of 2007, D/- 24 -10 -2008. Evidence Act (1 of 1872), S.112 - Constitution of India, Art.21 - EVIDENCE - RIGHT TO LIFE - Paternity of child - DNA Test to prove paternity - Suit by child for declaration that she is legitimate child born to her parents i.e. Petitioner and second respondent - Directing petitioner/father to undergo DNA test - Cannot be said to be affecting his @page-Mad65 fundamental right and is not violative of his right to personal liberty enshrined under Art.21 of Constitution - Second respondent/mother having remained ex parte - No question of compelling her to undergo DNA test arises - D.N.A. Test performed on petitioner father alone will prove that petitioner is father without any test conducted on mother. (Paras 10, 11, 12, 15, 16) Cases Referred : 2005 (1) Mad LW 713 Chronological Paras 10

AIR 2003 SC 3450 : 2003 AIR SCW 1950 10 R. Natarajan, for Petitioner; K.S. Elangovan, for Respondents. Judgement ORDER :- This revision is directed against the order of the learned Judge of the Family Court at Puducherry, dated 07.03.2007 made in I.A.No.59 of 2007 in O.S. No. 14 of 2006.

2. The first defendant in the above referred suit is the petitioner herein, plaintiff thereon is the first respondent and the second defendant being the second respondent in this revision. 3. The first respondent herein had laid the suit against the petitioner and the second respondent herein before the Family Court at Puducherry for declaration that she is the legitimate child born to her parents, viz., the petitioner and the second respondent herein. In the said suit, the first respondent has taken out an application in I.A.No.59 of 2007 for directing the petitioner herein to cause appearance and admission with the petition specified institute for the purpose of D.N.A. examination and test or any other medical examination and test and to further direct the said institute to cause the said test and to file consequent report to the Court. The said application was allowed by the learned Judge of the Family Court, Puducherry, by his order dated 07.03.2007 and the present revision is directed against the said order. 4. The first respondent in her application referred to above, has set out that her mother viz., the second respondent herein was set ex parte and the petitioner/father had totally denied her legal relationship with him as a legitimate daughter born to him. Since it is a total denial of legal relationship, the first respondent had no other option than to go for a D.N.A. Test to prove that the petitioner herein alone is the father. She has expressed her willingness to submit herself physically for any kind of medical and scientific test for the said purpose. 5. The said application was resisted by the petitioner herein by filing a counter affidavit. In the counter affidavit, the petitioner herein has stated that the application is not maintainable and it is liable to be dismissed in limine. He has further denied the relationship between himself and the first respondent herein. It is his further case that he cannot be compelled to be a witness against himself. 6. The Court below, considering the claim and the counter claim, allowed the application preferred by the first respondent herein. As stated already, the said order is under challenge in this revision. 7. The first and foremost submission of the learned counsel appearing for the petitioner is that since the factum of marriage of the second respondent with one Ramu is not controverted and not denied by the first respondent, the question of undergoing D.N.A. Test for the purpose of determining the paternity of the first respondent does not arise. The second submission of the learned counsel appearing for the petitioner is that the Court below illegally exercised its discretion thereby directing the petitioner herein for subjecting himself alone for D.N.A. Test without any sort of such test on the second respondent, who had already married with one Ramu, which is totally untenable and illegal. The third submission of the learned counsel appearing for the petitioner is that the Court below erroneously allowed the claim of the first respondent subjecting himself for D.N.A. Test without similar prayer from the side of the first respondent for herself and for the second respondent herein. The fourth submission of the learned counsel appearing for the petitioner is that no person shall be deprived of his life and personal liberty and no person can be compelled to be a witness as against himself. Thus, compelling a person to undergo D.N.A. Test is an act which goes against the invasion of a private right of the petitioner.

8. Per contra, learned counsel appearing for the first respondent contended that to prove the paternity, D.N.A. Test is the only scientific test, which is available for the first respondent herein to prove her case. The second submission of the learned counsel appearing for the first respondent is that the @page-Mad66 Court has power to order a person to undergo medical test which will not be a violation of the right to personal liberty guaranteed under Article 21 of The Constitution of India. The third submission is that the first respondent, in her affidavit, had clearly stated that she is ready and willing to submit herself physically for any kind of medical and scientific test and hence the case of the petitioner that he alone is directed to undergo D.N.A. Test is totally incorrect. The fourth submission of the learned counsel appearing for the first respondent is that since the second respondent/mother had absented herself in the suit and that since she has remained ex parte, the first respondent has no other option except to seek D.N.A. Test of the father, the petitioner alone. The fifth submission of the learned counsel appearing for the first respondent is that it is not necessary always that D.N.A. Test shall be conducted both on the father and mother but even if the D.N.A. Test is conducted on the father, it will prove whether the first respondent was born to him or not. Thus, the sum and substance of the submission made by the learned counsel appearing for the first respondent is that the Court below exercised its discretion rightly, which does not require any interference by this Court. 9. I have considered the submissions of the learned counsel appearing for the petitioner as well as the first respondent. 10. The objection of the petitioner before the Court below, as could be seen from the counter statement filed by him in I.A.No.59 of 2007, is that he is not the father of the first respondent herein and that there is no relationship between the first respondent and the second respondent. The other objection was that no person can be compelled to be a witness as against himself and that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Thus, the sum and substance of the objection was that the petitioner herein cannot be compelled to undergo D.N.A. Test, which goes against the invasion of his private right. Unfortunately, I am unable to agree with the said contention raised by the learned counsel appearing for the petitioner. By directing the petitioner herein to undergo D.N.A. Test to prove the paternity of the first respondent, cannot say to be affecting his fundamental rights and it is not in violation of his right to personal liberty enunciated under Article 21 of the Constitution of India. The said issue came for consideration before this Court and the same is reported in 2005-1-L.W. 713 Bommi and another v. Munirathinam. In the said judgment, this Court after considering various judgments of this Court as well as the Apex Court, has held that when a paternity of the child is challenged, there is nothing wrong in ordering a D.N.A. Test, which would unfold the truth and it has been further held that such an act is not an interference with the personal liberty of the particular person, who is required to undergo D.N.A. Test. In 2003 (2) C.T.C. 760 : (AIR 2003 SC 3450) Sharada v. Dharmpal, the Hon'ble Apex Court while considering the constitutional rights available to a person in such cases and also while considering the provision of Section 112 of the Indian Evidence Act, has held as follows :-

"A matrimonial Court has the power to order a person to undergo medical test. Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him. The implicit power of a Court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy". Thus, the above judgment of the Hon'ble Apex Court will make it very clear that the order of the Court below directing the petitioner to undergo D.N.A. Test would not be in violation of the right to his personal liberty guaranteed under Article 21 of The Constitution of India and it will not be violative of the petitioner's right of privacy. 11. The next contention of the learned counsel appearing for the petitioner is that the petitioner alone is directed to be subjected to D.N.A. Test and that the first respondent has not sought for any D.N.A. Test for herself or for the second respondent. It has to be seen that the first respondent in her affidavit has clearly stated that she is ready and willing to submit herself physically @page-Mad67 for any kind of medical and scientific test for the above said purpose and hence the contention of the learned counsel appearing for the petitioner that the petitioner alone is directed to undergo D.N.A. Test and the first respondent herein has not sought for any test on herself, is totally unacceptable. As fax as the second respondent is concerned, it is the definite case of the first respondent that she is the mother, but however, the second respondent has not chosen to appear before the Court below and she has remained ex parte. Hence, the second respondent could not be directed to undergo D.N.A. Test by the Court below. Had the second respondent appeared before the Court below and still if the Court below directed the D.N.A. Test on the petitioner alone and not on the second respondent, one could understand the grievance of the petitioner. Hence, I am unable to countenance the argument put forth on behalf of the petitioner in this regard. 12. The next question that arises for consideration is whether the D.N.A. Test performed on the petitioner alone will prove that the petitioner is the father of the first respondent without any test conducted on the second respondent, who is alleged to be the mother of the first respondent. 13. On-Site Medical Testing Inc., California speaks about the paternity test, wherein it is stated as follows :"D.N.A. paternity testing uses D.N.A., the biological basis of inheritance, to prove or disprove the relationship between a child and an alleged father. It is based on the fact that we inherit half of our

D.N.A. from our father and half from our mother. Cells are collected from the child, the alleged father, and the mother if possible. Using sophisticated laboratory procedures, genetic profiles are created for each individual. By comparing these profiles, it is possible to statistically prove whether the alleged father is or is not the child's biological father." 14. The Eastern Biotech and Life Science Company in UAE which is offering D.N.A. Test in Kuwait, Jordan, Lebanon, Bahrain, Qatar, Oman, Saudi and Syria speaks about the paternity test, wherein it is stated as follows :"Paternity testing requires a painless sample from both the child and possible father. Even without a sample from the mother, D.N.A. paternity test results are up to 99.9999% accurate-that's one-in-amillion odds your results are incorrect". 15. The above analysis clearly shows that if the mother is not available, from the sample collected from the child and the alleged father, the paternity test can be conducted. Thus, if D.N.A. test is performed without the mother's sample, it requires additional analysis and it will take a few days longer to complete the same. However, the accuracy of the results will not be affected. 16. The above discussions make it very clear that it is not always necessary to conduct D.N.A. test on both the alleged father and mother and the D.N.A. test performed on the father will also show whether a particular child was born to the person on whom such test has been performed. While so, the argument advanced on the side of the petitioner that without conducting D.N.A. test on the second respondent, the alleged mother of the first respondent, there will be no useful purpose, by directing the petitioner alone to subject himself for D.N.A. test, is totally erroneous. In the fast technology development in scientific field, it is nothing wrong in directing a person to undergo D.N.A. test, which will enable the Court to arrive at a proper conclusion. Furthermore, the petitioner, who asserts that he had no relationship with the second respondent and the first respondent was not born to him, to prove his assertion, can very well subject himself for the said test to prove his case beyond reasonable doubt. In fact, the test result will amply prove his case also. 17. Thus, analysing the entire facts and circumstances of the case, I am of the considered opinion that the Court below had exercised its discretion properly, judicially and in the best interest of both the parties concerned. 18. In the result, the order of the learned Judge of the Family Court, Puducherry, dated 07.03.2007 made in I.A.No.59 of 2007 in O.S. No. 14 of 2006 is confirmed and the civil revision petition stands dismissed. No order as to costs. Consequently, connected petition is closed. Petition dismissed. @page-Mad68 AIR 2009 MADRAS 68 "Sriram Chits Tamil Nadu (P) Ltd. v. State of Tamil Nadu" MADRAS HIGH COURT

Coram : 2 D. MURUGESAN AND V. PERIYA KARUPPIAH, JJ. ( Division Bench ) Sriram Chits Tamil Nadu (P) Ltd. v. State of T. N. and Ors. W.A. No. 1342 of 2003, D/- 21 -10 -2008.* (A) Chit Funds Act (40 of 1982), S.89 - T.N. Chit Fund Rules (1984), R.49 - CHIT FUNDS - Supply of copy of order judgment, order or award - Party should apply for it - Forwarding copy of award by Registrar or his nominee without there being a proper application - Not permissible - Directing Registrar to communicate copy of award and to provide costs in advance - Amounts to inserting something into Rules - Not permissible. In the wake of sub-rule (1) of Rule 49, it is the discretion of the parties either to apply or not to apply for certified copies by paying the fee as prescribed in Item 19 of Appendix - II of the Rules. The Registrar or his nominee is obligated to furnish the certified copy of such award only in the event an application is made as per sub-rule (6) of Rule 49. While the rule is so specific, issuing of directions to the Government in order to direct all the Registrar of Chits to communicate the copy of the award with necessary endorsements as to date of award, date of dispatch by registered post acknowledgment due would in effect amount to inserting something into the rules, which is impermissible. For the same reason, when the rule contemplates a specific fee to be paid for furnishing the certified copy, it will be importing something into the rules if such directions are issued by compelling the claimants before the Registrar of Chits to provide the cost in advance for forwarding the copy of the award by registered post acknowledgment due. Neither the provisions of the Act nor the rules made thereunder envisage such a contingency mandating the claimant for making such advance payment of cost to forward the copy of the award. The said directions would run contra to the provisions of the fee prescribed in Item 19 of Appendix-II of the rules and they amounted to inserting something into the rules, which the Legislature did not intend. (Paras 13, 18) (B) Chit Funds Act (40 of 1982), S.89 - T.N. Chit Fund Rules (1984), R.49, R.50 - CHIT FUNDS - DOCTRINES - Pronouncement of award - Rules framed relating to clear and unambiguous - Court issuing further directions to Govt./Registrar of Chits - Would amount to inserting something into rules - Not permissible - Doctrine of Casus omissus - Applicability. The rules framed in exercise of the powers conferred u/S. 89 of the Chit Funds Act should be strictly followed by the Registrar or his nominee not only to record the evidence or to consider the evidence, both oral and documentary, but also to pronounce the award in writing on the date which is notified and intimated to the parties. While the rule is so clear and unambiguous, the question of issuing directions to the Government to further direct all the Registrar of Chits to intimate the date of award is unnecessary. (Para 17) Cases Referred : Chronological Paras 16

2007 AIR SCW 5143 : 2007 Tax LR 727

AIR 2003 SC 2103 : 2003 AIR SCW 104 : 2003 All LJ 427 15

AIR 2003 SC 2917 : 2003 AIR SCW 3507 15 AIR 1992 SC 96 : 1991 AIR SCW 2754 : 1992 All LJ 258 AIR 1990 SC 1747 16 16

AIR 1987 SC 33 : 1987 Cri LJ 308 16 AIR 1980 SC 485 : 1980 Tax LR 185 AIR 1975 SC 1039 (1969) 1 WLR 1266 AIR 1952 SC 362 14 16 14 15

M.S. Krishnan, Sr. Counsel, for M/s. Sarvabhauman Associates, for Appellant; R. Thirugnanam Spl. Govt. Pleader, Mrs. A.L. Ganthimathi, for Respondents. * Against order of Single Judge of this Court in W.P. No. 2049 of 2002, D/-17-04-2002. Judgement D. MURUGESAN, J. :- The appellant is Sriram Chits Tamil Nadu (Private) Limited. The fourth respondent by name S.M. Bakir Mohammed approached this Court by filing Writ Petition No. 2049 of 2002 questioning the order of the Secretary to Government, Commercial Taxes Department dated 13-12-2000 and for a consequential direction to the Secretary to Government to take the appeal of the fourth respondent/writ petitioner filed against the order of the Deputy Registrar of Chits dated 7.2.2000. 2. The writ petition came to be filed on the following facts :The fourth respondent (hereinafter referred to as "the writ petitioner") was a subscriber to a chit under the Agreement No.72 of 1994 in Suriya Chit Funds, Pollachi, @page-Mad69 namely, the third respondent and the maturity amount of which was Rs.50,000/-payable in 20 instalments i.e., Rs.2500 x 20. He had been regularly paying the instalments and during the sixth auction, he bid the auction and took the chit for Rs. 35,000/-. According to him, he has paid the entire amount towards the bid and there was no dues. However, Suriya Chit Funds, the third respondent, filed an arbitration case against the writ petitioner before the Deputy Registrar of Chits for recovery of a sum of Rs. 25,000/- with interest alleging that the writ petitioner did not pay six instalments to the tune of Rs. 15,000/-. An award for recovery of money dated 7.2.2000 was passed, against which an appeal was filed on 16.11.2000 before the Secretary to Government, Commercial Taxes Department, but the appeal was dismissed by order dated 13.12.2000 on the ground that it was not filed in time.

3. The above order was questioned by the writ petitioner and by the impugned order, the learned single Judge quashed the order of the Secretary to Government and remitted the matter back to him for consideration of the appeal on merits. For completion of the facts, it must be also stated that pursuant to the order of the learned single Judge, the appeal was also taken up for hearing and was dismissed on merits. 4. While quashing the above order, taking into consideration that number of identical petitions are being filed, the learned Judge has passed the following order in paragraph-28 : "Before parting with the case, this Court deems it essential to issue directions as number of identical petitions are being filed since there is no rule to communicate the award nor there is a rule, which provides for intimation of passing of the award. Hence, every time there is a controversy, the parties moved this Court. To avoid such circumstances, this Court directs the State Government to issue the following directions to all the Registrar of Chits who act as Arbitrators :(i) to intimate the date on which the award is passed; (ii) to communicate the copy of the award with necessary endorsements as to date of award, date of despatch by Registered Post Acknowledgment Due; and (iii) towards expenses incurred in this respect, the claimant before the Arbitrator may be required to provide the cost in advance for forwarding the copy of the award by Registered Post Acknowledgment Due and the said cost could be included in the award for being reimbursed by the judgment debtors. Such a course alone avoid circumstances of the present nature." 5. As against the order of the learned single Judge in directing the Secretary to Government, Commercial Taxes Department to entertain the appeal and dispose of the same on merits, the State has not preferred any appeal. Therefore, that portion of the order had become final. 6. However, the appellant-Sriram Chits Tamil Nadu Private Limited, who was not a party to the writ petition, made an application before this Court seeking leave to appeal on the ground that the three directions in paragraph-28 of the order are not at all in conformity with the Rule 49 of the Chit Funds Rules. 1984 and the directions also amounted to inserting something into the rules, which the legislature did not intend. By order dated 6.3.2003, in W. A. M. P. No. 1156 of 2003, leave was granted. 7. We have heard Mr. M.S.Krishnan, learned senior counsel appearing for the appellant. He would submit that the impugned directions would cause great hardship to the appellant, as the appellant has filed nearly 5,825 arbitration cases involving a sum of Rs. 13 crores and those applications are pending. He would also submit that around 15,771 cases involving Rs.8.50 crores are to be filed. The projected expenditure in complying with the directions of the learned Judge would work out to nearly Rs.31,36,819/-. These directions were issued without hearing the companies who are engaged in chit fund transactions. Apart from the above submission on facts, the learned senior counsel would submit that Rule 49(1) of the Chit Funds Rules provides that a decision should be given by the Registrar or his nominee in the open Court either at once or as soon as may be practicable on some future day, of which

due notice shall be given to the parties. In terms of the said rule, a notice, before the award is pronounced, should be given to the parties in the application, which necessarily means that by virtue of such notice, the parties should appear on the date when the award is to be pronounced. When there is a specific rule, the direction of the learned single @page-Mad70 Judge contained in (i) of paragraph-28 is unnecessary. 8. So far as the directions contained in (ii) and (iii) of paragraph-28 are concerned, the learned senior counsel would submit that in terms of Rule 49(6), any party to a dispute may apply for and obtain a certified copy of any order, judgment or award made by the Registrar or his nominee on payment of copying fees at the rate prescribed in Appendix-II of the Rules. This provision is made in consonance with the provisions governing the application for certified copies of the order in civil matters. The intention of the legislature is, therefore, when once the pronouncement of the award is notified and served on the parties and the award is pronounced, it is for the subscriber to either apply for certified copy of the award and the Registrar or his nominee is obligated to make the copy available on payment of the prescribed fee in Appendix-II of the Rules. The learned senior counsel would draw our attention to item 19 of Appendix-II relating to the prescription of fee of Rs.1.00 for every 100 words or fraction thereof subject to a minimum of Rs.35 for a certified copy of any order or judgment or award made by the Registrar or his nominee under section 69. Hence the directions would amount to legislating something which are not at all found in the rules. He would submit that when the rules are so clear, the three directions issued by this Court would run contra to the very rules themselves. Hence the learned senior counsel submitted that the impugned directions should be set aside. 9. Mr. R.Thirugnanam, learned Special Government Pleader appearing for the respondents 1 and 2 would submit that pursuant to the directions of this Court, impugned in this appeal, the Government had issued a circular on 20.1.2003 and the copies of the circular were communicated to all the chit fund companies. The appellant, being not a party to the writ proceedings, if aggrieved, should have questioned the said circular and instead, it has chosen to file this appeal. He would also submit that this Court had to issue the directions in view of the fact that number of identical petitions are being filed and the copies of the award are not communicated to the parties to enable them to work out their remedy by filing appeal in time and in most of the cases, the appeals are not entertained on the ground that they are not filed in time. 10. Mrs. A. L. Ganthimathi, learned counsel appearing for the writ petitioner has submitted that pursuant to the order of the learned single Judge in directing the first respondent to consider and pass orders on the appeal, the Secretary to Government, Commercial Taxes Department having considered and disposed of the appeal, the writ petitioner has nothing to contest in the matter. 11. We have carefully considered the above submissions. The issue before the learned single Judge was in respect of a claim made by Suriya Chit Funds, the third respondent against one S.M. Bakir Mohammed. As against the order of the Deputy Registrar of Chits, Tiruppur accepting the claim of Suriya Chit Funds, an appeal was preferred and the appeal was also dismissed. On facts, the lis between the

Suriya Chit Funds and S.M. Bakir Mohammed does not survive as on today, leaving only the directions of the learned single Judge issued in paragraph-28 of the order, which we have extracted in the earlier portion of this order. As the arguments were advanced on Rule 49 of the Chit Funds Rules, we propose to extract the relevant rules as under : 49. Procedure for hearing and decision of disputes. - (1) The Registrar or his nominee shall record in the official language in vogue in the State, the evidence of the parties to the dispute and the witnesses who attend. Upon the evidence so recorded and upon consideration of any documentary evidence produced by the parties, a decision shall be given by him in writing. Such decision shall be pronounced in the open court, either at once or as soon as may be practicable on some future day, of which due notice shall be given to the parties. (2).... (3).... (4).... (5).... (6) Any party to a dispute may apply for and obtain a certified copy of any order, judgment or award made by the Registrar or his nominee on payment of copying fees, at the rate prescribed in Appendix II." 12. A perusal of sub-rule (1) of rule 49 shows that while the proceedings are taken up and the parties are heard, the Registrar or his nominee shall record in the official language in vogue in the State, the evidence @page-Mad71 of the parties to the dispute and the witnesses who attend. After recording the evidence, he should consider any documentary evidence produced by the parties and thereafter he should give a decision in writing. Such decision should be pronounced in the open court, either at once or as soon as may be practicable on some future day. By that rule, the Registrar or his nominee is entitled to pronounce the decision in the open court immediately. In case if such a decision could not be pronounced immediately, he may give a date for pronouncement of such decision. In such event, it is mandatory for the Registrar or his nominee to intimate the parties the date on which the award would be passed or pronounced. By virtue of the said rule, it is clear that the award shall be pronounced either in the presence of the parties to the application or on a date fixed by the Registrar or his nominee to pronounce the award and such date had been intimated to the parties in advance. In the event the Registrar or his nominee could not pronounce the award immediately, namely, at once, and in the event no notice is served on the parties as to the date on which the award would be pronounced, certainly, the parties would be put to great hardship as to the pronouncement of the award, necessarily meaning that the issue of notice to the parties intimating the date is mandatory.

13. A perusal of sub-rule (6) of Rule 49 shows that when once an award is pronounced in the open court or is pronounced on the date so notified and served on the parties, the parties to the dispute may apply for and obtain a certified copy of the order, judgment or award made by the Registrar or his nominee, of course, on payment of copying fee as prescribed in item 19 of Appendix-II of the Rules. As the pronouncement of the award is made known to the parties, it is for the parties either to file application by paying the prescribed fee. A conjoined reading of sub-rules (1) and (6) of Rule 49 of the Rules would show that it is for the party who has become aware as to the pronouncement of the award to file an application for copy of the order, judgment or award by paying the prescribed fee. Therefore, the question of forwarding the copy of the award by the Registrar or his nominee without there being a proper application does not arise. 14. The question as to whether this Court could issue directions which would in effect amount to legislating something that are not found in the Act or the Rules, more particularly, by way of interpreting the statute, which is otherwise clear and unambiguous, came up for consideration before the Supreme Court in more than one case. In Smt. Hira Devi and others v. District Board, Shahjahanpur, AIR 1952 SC 362, the Supreme Court has observed as follows :"14.....No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act." In The Commissioner of Sales Tax, Uttar Pradesh v. M/s Parson Tools and Plants, Kanpur, AIR 1975 SC 1039, the Supreme Court has observed as follows :"12. If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity." 15. In Commissioner of Income Tax, Central Calcutta v. National Taj Traders, AIR 1980 SC 485, the Supreme Court has observed as follows :"10. A casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every item of a section should be construed with reference to the context and other items thereof so that the construction to be put on a particular provisions makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature." In M/s Unique Butyle Tube Industries Pvt. Ltd. v. U.P.Financial Corporation and others, AIR 2003 SC 2103, the Supreme Court has observed as follows:-

@page-Mad72 "11. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. 13. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process." The same view has been taken in Union of India v. Rajiv Kumar, AIR 2003 SC 2917. 16. The Supreme Court in Commissioner of Income Tax, Kerala v. Tara Agencies, (2007) 6 SCC 429 : (2007 AIR SCW 5143), has observed as follows :"57. The intention of the legislature has to be gathered from the language used in the statute which means that attention should be paid to what has been said as also to what has not been said. 58. In Union of India v. Deoki Nandan Aggarwal. 1992 Supp (1) SCC 323 : (AIR 1992 SC 96), a three-Judge Bench of this Court held that it is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there. 59. In State of Kerala v. Mathai Verghese, (1986) 4 SCC 746 : (AIR 1983 SC 33), this Court has reiterated the well-settled position that the court can merely interpret the section; it cannot rewrite, recast or redesign the section. In interpreting the provision the exercise undertaken by the court is to make explicit the intention of the legislature which enacted the legislation. It is not for the court to reframe the legislation for the very good reason that the powers to "legislate" have not been conferred on the court. 60. In Gwalior Rayons Silk Mfg. (Wvg.) Co.Ltd. v. Custodian of Vested Forests, 1990 Supp SCC 785 : (AIR 1990 SC 1747), the Court rightly observed that in seeking legislative intention judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say. 61. The House of Lords in Pinner v. Everett, (1969) 1 WLR 1266, aptly observed that we have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute.

62. Therefore, the legal position seems to be clear and consistent that it is the bounden duty and obligation of the court to interpret the statute as it is. It is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated." 17. A survey of the above judgments would make it clear that this Court cannot by its order direct the Government to issue orders which would rather amount to legislating something into the Chit Funds Rules without there being an amendment to the very rules themselves, framed in exercise of the powers conferred under Section 89 of the Chit Funds Act. So far as the direction contained in (i) of paragraph-28 of the order is concerned, as observed by us, in terms of rule 49(1) of the Chit Funds Rules, it is mandatory for the Registrar or his nominee to pronounce the award in the open court either at once i.e., immediately after consideration of the evidence, both oral and documentary, and such pronouncement of the award should be in writing, or on some future date which is notified and intimated to the parties so as to enable the parties to be present on the date when the award is to be pronounced. In fact rule 50 relates to the issuance of summonses, notices and fixing of dates, places, etc., in connection with the disputes, which reads as under :"50. Summonses, notices and fixing of dates, places, etc., in connection with the disputes. - (1) The Registrar, or, as the case may be, his nominee, may issue summonses or notices at least fifteen days before the date fixed for the hearing of the dispute requiring : @page-Mad73 (i) the attendance of the parties to the dispute and of witnesses, if any; and (ii) the production of all books and documents relating to the matter in dispute. (2) Summonses or notices issued by the Registrar or his nominee may be served through a Tahsildar or any employee of the Chit Department or by registered post with acknowledgment due. (3) The Officer serving a summons or notice shall, in all cases in which summons or notice has been served, endorse or annex or cause to be endorsed on or annexed to, the original summons or notice, a return stating the time when, and the manner in which, the summons or, as the case may be notice was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons or the notice. (4) The Official issuing the summons or notice may examine the serving officer on oath or cause him to be so examined by the Officer through whom it is served and may make such further inquiry in the matter as he thinks fit; and shall either declare that the summons or, as the case may be, notice has been duly served or order it to be served in such manner as he thinks fit. (5) The mode of serving summonses and notices as laid down in sub-rules (1) to (4) shall mutatis mutandis apply to the service of summonses or notices issued by the Registrar or the person authorised by him when acting under section 46."

The rules framed in exercise of the powers conferred under Section 89 of the Chit Funds Act should be strictly followed by the Registrar or his nominee not only to record the evidence or to consider the evidence, both oral and documentary, but also to pronounce the award in writing on the date which is notified and intimated to the parties. While the rule is so clear and unambiguous, in our considered view, the question of issuing directions to the Government to further direct all the Registrar of Chits to intimate the date of award is unnecessary. 18. So far as the directions contained in (ii) and (iii) of paragraph-28 of the order are concerned, in the wake of sub-rule (1) of rule 49, it is the discretion of the parties either to apply or not to apply for certified copies by paying the fee as prescribed in item 19 of Appendix-II of the Rules. The Registrar or his nominee is obligated to furnish the certified copy of such award only in the event an application is made as per sub-rule (6) of Rule 49. While the rule is so specific, issuing of directions to the Government in order to direct all the Registrar of Chits to communicate the copy of the award with necessary endorsements as to date of award, date of despatch by registered post acknowledgment due would in effect amount to inserting something into the rules, which is impermissible. For the same reason, when the rule contemplates a specific fee to be paid for furnishing the certified copy, it will be importing something into the rules if such directions are issued by compelling the claimants before the Registrar of Chits to provide the cost in advance for forwarding the copy of the award by registered post acknowledgment due. Neither the provisions of the Act nor the rules made thereunder envisage such a contingency mandating the claimant for making such advance payment of cost to forward the copy of the award. The said directions would run contra to the provisions of the fee prescribed in item 19 of Appendix-II of the rules. Hence, in our considered view, the directions contained in (ii) and (iii) of paragraph-28 of the order would be contrary to the rules, and they amounted to inserting something into the rules, which the legislature did not intend. For the said reason, we are not inclined to accept the reasoning of the learned single Judge to issue such directions, namely, as number of identical petitions are being filed since there is no rule to communicate the award nor there is a rule. (Emphasis supplied) 19. For the foregoing reasons, the impugned directions contained in paragraph-28 of the order of the learned single Judge cannot be sustained. Accordingly, the directions contained in paragraph-28 of the order in W.P.No.2049 of 2002 are set aside and the writ appeal is allowed. Consequently, W.A.M.P.No.785 of 2006 is closed. No costs. Appeal allowed. @page-Mad74 AIR 2009 MADRAS 74 "Cambridge Solutions Ltd., Bangalore v. Global Software Ltd." MADRAS HIGH COURT Coram : 1 M. JEYAPAUL, J. ( Single Bench ) M/s. Cambridge Solutions Ltd., Bangalore v. Global Software Ltd. and Ors.

Appln. No. 339 of 2008, D/- 30 -9 -2008. (A) Civil P.C. (5 of 1908), O.7, R.11 - PLAINT - Rejection of plaint - Ground of collusion between respondents so as to file plaint - Facts of collusion to be found out only during course of trial - Plaint cannot be rejected. (Para 9) (B) Civil P.C. (5 of 1908), S.9 - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), S.34 - CIVIL COURT - SECURITY TRANSACTION - DEBT RECOVERY TRIBUNAL - INTEREST - Bar of jurisdiction of Civil Court - Plaintiff seeking relief of entitlement over certain debentures on ground that order for attachment of same has been obtained fraudulently Contention that such a relief has already been sought from Debt Recovery Tribunal (DRT) hence cannot be granted by Civil Court, not tenable - Allegation of fraud having been played for obtaining certain orders can be gone into only by Civil Court and not by DRT or appellate Tribunal. (Paras 11, 16) (C) Civil P.C. (5 of 1908), O.6, R.4 - PLEADINGS - Pleading to specify particulars of averments - Averment of fraud in obtaining certain orders from Recovery Officers - Furnishing of particulars with respect to order of attachment and directions issued by Recovery Officer, sufficient. (Para 12) Cases Referred : Chronological Paras

2008 (1) CTC 471 (Mad) 14 AIR 1998 SC 634 : 1998 AIR SCW 237 AIR 1956 Mad 301 11 13

M. Kabir for R. Sasidharan, for Applicant; A. Somayaji, Sr. Counsel for Satish Parasaran, R. Krishnamoorthy, Sr. Counsel for M/s. T.S. Gopalan and Co. for Respondents. Judgement ORDER :- The first defendant M/s. Cambridge Solutions Limited formerly known as M/s. Scandent Solutions Corporation Limited filed this application seeking rejection of the plaint invoking the provision under Order VII, Rule 11 of the Code of Civil Procedure. 2. The applicant/first defendant would contend that the applicant was to pay Rupees 15 crores to the third respondent M/s. DSQ Software Limited on account of the terms of certain assignment. The said consideration was by way of issuing 15 lakh debentures at Rs. 100/- each. The applicant and the third respondent also entered into an agreement on 1-8-2008. It transpires that the second respondent instituted O.A. No. 505 of 2002 on the file of the fourth respondent for the recovery of Rs. 6,65,75,390/A joint compromise memo dated 21st March 2003 was filed before the fourth respondent. The liability of the third respondent was fixed at Rs. 5,31,55,000/-. The second respondent agreed to receive the same in full and final settlement of its claim. In terms of the said compromise, the third respondent was to deliver 2,75,000/- debentures of the applicant to the second respondent. The third respondent defaulted in complying with the terms of the joint compromise memo. A demand notice was issued by

the fifth respondent. By order dated 13th October 2004, the debentures were attached. But, by order dated 12.7.2005, the fifth respondent directed the applicant to issue duplicate debentures. It did not come to light that the first respondent/plaintiff viz., Global Software Limited has purchased the said debentures. The applicant came to know of the proceedings of the Debts Recovery Tribunal only on 13th October 2004 when the order of attachment was passed. The first respondent filed a Miscellaneous Application seeking to implead itself as third respondent in the appeal preferred by the applicant. The said application has been reserved for orders. The order dated 13th October 2004 relates to attachment of debentures and the order dated 12th July 2005 relates to issuance of duplicate debentures. An appeal would lie as against the aforesaid orders before the Debts Recovery Tribunal. The first respondent cannot invoke the jurisdiction of this court having chosen an alternative forum to agitate its rights. If any valuable consideration has been passed between the first and third respondent, it is always open to the first respondent to institute recovery proceedings of the amount paid as against the third respondent. The third respondent cannot, through its associate company viz., the first respondent herein, dislodge a legal decision on the ground of fraud. The first respondent has no locus standi to institute the present suit representing the interest of @page-Mad75 the third respondent. There is no cause of action available to the first respondent to institute a suit. The suit is not maintainable in law inasmuch as the first respondent cannot invoke the jurisdiction of this court to set aside a lawful order passed by the Debts Recovery Tribunal. Hence, the applicant has sought for rejection of the plaint. 3. Except the first respondent, no other respondent chose to file counter. The first respondent, in its counter, has contended that there is a specific allegation in the plaint that the orders were obtained from the fifth respondent by committing fraud and collusion. A bar of jurisdiction of any court found either in the Recovery of Debts due to Banks and Financial Institutions Act, 1996 (RDB Act) or the SARFAESI Act, 2002 would not apply to a suit where the actions of the banks and other parties are assailed as fraudulent. The claim of collusion is obviously made only to escape the liability in the suit. The first respondent is entitled to the claim on debentures even without registration. The orders passed by the fifth respondent is a nullity having been tainted by fraud. No case has been made out for rejection of the plaint under Order VII, Rule 11 of the Code of Civil Procedure. Therefore, the first respondent would submit that the application is liable to be rejected. 4. Learned Senior Counsel appearing for the applicant/first defendant would submit that the compromise decree passed by the Debts Recovery Tribunal was not under challenge. The first respondent/plaintiff has chosen to attack only the implementation of the order of attachment and the direction to issue duplicate debentures. The first respondent Company is a related Company of the third respondent. Therefore, we cannot easily presume that the entire transaction that transpired before the Debts Recovery Tribunal was known to the third respondent Company. The third respondent never disclosed the transfer of debentures to the applicant. Therefore, collusive suit has been laid to blackmail the applicant. The applicant cannot be penalised for the compliance of the directions of the Tribunal. The first respondent has already approached the Debts Recovery Tribunal seeking the very same relief.

Parallel proceedings initiated by the applicant before this court is a sheer misuse of process of Court. The particulars of fraud have not been thoroughly pleaded as mandated under Order VI, Rule 4 of the Code of Civil Procedure. As per Order XXIII, Rule 3A of the Code of Civil Procedure, no suit will lie on the ground of unlawful compromise. Order 35 of the SARFAESI Act debars the Civil Court from entertaining suit of this nature. No appeal also will lie to the Appellate Tribunal as against the order passed with the consent of the parties as per section 20(2) of the Recovery of Debts Due to Banks and Financial Institutions (RDB) Act, 1993. The third respondent is instrumental to the initiation of present proceedings by the applicant. As per section 30(1) of the RDB Act, any aggrieved person by the order of the Recovery Officer may prefer an appeal to the Tribunal. Therefore, it is not as if the first and third respondents are remediless under the RDB Act. Neither the applicant nor the second respondent was aware of the alleged transfer of debentures by the third respondent to the first respondent. There is no cause of action for laying the suit on the ground of fraudulent transaction which culminated in a decree by consent. 5. Learned counsel appearing for the second respondent Bank would submit that the debentures were found registered only in the name of the third respondent. The first respondent being the related Concern of the third respondent has been projected as though there was a real transaction of transfer of debentures by the third respondent to the first respondent. Therefore, the collusive suit is liable to be dismissed, he would submit. 6. Learned Senior Counsel appearing for the first respondent would vehemently submit that the attachment has been made only with respect to exact debentures transferred by the third respondent to the first respondent. The Recovery Officer has no authority to give such a direction to issue duplicate debentures when it is nobody's case that the debentures were lost. It is to be noted that the first respondent is a stranger and the balance sheet produced by the first respondent would go to show that the first respondent has got transfer of debentures from the third respondent. Without any application of mind, the debentures belonging to a third party was attached by the fifth respondent. If at all, the third respondent had refused to part with the original debenture certificates as per the direction and also as per the undertaking given by the third respondent, coercive ! @page-Mad76 steps should have been taken by the fifth respondent. When fraud is alleged in obtaining a consent decree, the Civil Court has got jurisdiction to decide such an allegation. The question whether there was any collusion between the third respondent and the first respondent can be gone into only during the course of trial. But, such a plea taken by the applicant cannot be entertained while deciding an application under Order VII, Rule 11 of the Code of Civil Procedure. 7. It is found that on 1.8.2002, an agreement was entered into between the applicant and the third respondent whereby debentures for a value of Rs.15 crores were issued to the third respondent. On 21.3.2003, the second respondent and the third respondent have entered into a joint compromise before the Debts Recovery Tribunal in the proceedings initiated by the second respondent for recovery of dues from the third respondent. The first respondent has produced bank statements evidencing the

advances made by the first respondent to the third respondent in the month of April 2003. The resolution passed by the first respondent on 23.4.2003 would go to show that it decided to acquire Rs.6,25,000/- debentures from the third respondent at a discounted rate of Rs.90/- per debenture out of the total of 15,00,000 debentures purchased by the third respondent from the applicant. On 13.10.2004, the third respondent made a (sic) in compliance with the terms of the compromise it entered into with the second respondent before the Debts Recovery Tribunal and as a result of which as per the request of the second respondent, the very same 6,25,000 debentures bearing distinctive numbers transferred by the third respondent to the first respondent were attached by the fifth respondent. On 11.7.2005, it appears that the second respondent filed a memo before the Recovery Officer, the fifth respondent seeking a direction to the third respondent to surrender the attached debentures. It has also prayed for a direction to the applicant to issue duplicate debentures within 15 days on failure of the third respondent to surrender the attached debentures. The fifth respondent has passed an order on the next day viz., 12.7.2005 for issuance of duplicate debentures without any notice to the third respondent. Only on being informed by the Company called Mercury Fund Management Company Limited which clinched a deal with the first respondent to purchase the debentures available with it the first respondent has come to know that the Debts Recovery Tribunal had already attached the debentures. 8. It is to be noted that though fifteen days time was granted to the third respondent to surrender the attached debentures, quite unfortunately, the Recovery Officer has chosen to pass yet another order the next day itself directing the applicant to issue duplicate debentures. As rightly pointed out by the learned counsel appearing for the first respondent, it is nobody's case that the debentures were lost. It is also found that the third respondent was not given any notice while an order of issuance of duplicate debentures was passed by the Recovery Officer. If at all the third defendant has not obliged by surrendering the attached debentures, coercive steps should have been taken by the Recovery Officer. Prima facie it has been shown by the first respondent that an order has been passed hurriedly by the Recovery Officer without issuing notice to the third respondent and also without waiting for completion of the 15 days time he has already given to the third respondent. 9. The statement of account and the balance sheet produced by the first respondent would go to show that the first respondent has acquired 6,25,000 debentures from the third respondent for the consideration of the loan amount it had advanced to the third respondent. It is also found that the first respondent has been shown as the related Company of the third respondent. Whether there was actually any collusion between the third respondent and the first respondent can be found out only during the course of trial of the case. But, definitely, that is not a ground for rejecting the plaint invoking the provision under Order VII, Rule 11 of the Code of Civil Procedure. 10. The first respondent was not a party before the Debts Recovery Tribunal. It is not concerned with the compromise decree passed by the Debts Recovery Tribunal. It has rightly challenged the implementation of the order of attachment and the direction issued by the Recovery Officer to issue duplicate debentures as such proceedings affect its interest. It is true that only as per the directions of the Recovery Officer, duplicate debenture certificates were issued by the applicant. It is not the scrupulous compliance of the direction by the applicant that

@page-Mad77 is under challenge before the court. That there had been a collusive action and fraud has been played upon to knock away the rights of the third respondent is the gravamen of charge of the first respondent. 11. It is true that the first respondent has approached the Debts Recovery Tribunal seeking almost similar relief. It has been held in the authority in R.S.VIJAYAM v. SRINIVASA (AIR 1956 Madras 301) that where a man is entitled to one or two consistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one he cannot afterwards pursue the other which after the first choice is, by reason of the inconsistency, no longer open to him. In the present case, it is found that the first respondent has alleged that fraud has been played in implementation of the order of attachment and issuance of a duplicate debentures. Such an allegation can be gone into only by a Civil Court and not by the Debts Recovery Tribunal. Therefore, the proceedings pending before the Debts Recovery Tribunal seeking the very same relief cannot be a ground for rejection of the plaint which has been laid before the competent court to adjudicate upon the allegation of fraud. 12. Order VI, Rule 4 of the Code of Civil Procedure provides that in a case where a party pleads fraud, particulars with regard to which shall be stated in the pleading. It is not as if a bald allegation has been made in the plaint as regards the charge of fraud. There is an averment as to the fraud alleged to have been committed by the parties. Further, the particulars with respect to the order of attachment and the direction to issue duplicate debentures are furnished with details by the first respondent in the plaint. 13. The Supreme Court in I.T.C. LTD. v. Debts Recovery Appellate Tribunal (AIR 1998 Supreme Court 634) has held that when there is no sufficient allegation of forged or fraudulent documents made in the plaint, the plaint can be rejected invoking Order VII, Rule 11 of the Code of Civil Procedure. That was a case where an allegation of non-supply of goods by the sellers to the buyers was classified as fraud by the plaintiff in that suit. In other words, a breach of contract was projected before the civil court as a classical fraud. In such circumstances, in the aforesaid case, the Supreme Court was pleased to hold that the plaint can be rejected invoking Order VII, Rule 11 of the Code of Civil Procedure. Therefore, the above ratio does not apply to the facts and circumstances of the instant case. 14. With respect to the debentures, there is no prescribed mode of transfer under the Transfer of Property Act. The first respondent has shown prima facie that the debentures stood transferred to it. A Division Bench of this court in Subramaniam, S.V. v. Cypress Semiconductor Technology India Private Limited (DB) (2008 (1) CTC 471) has held that no appeal would lie as against the order passed by the Debts Recovery Tribunal with the consent of the parties, but, suit can be laid on the Original Side of the High Court to declare the order passed by the Debts Recovery Tribunal as null and void on the ground that fraud has been played by the parties to obtain orders from the Debts Recovery Tribunal. 15. As per Order XXIII, Rule 3A of the Code of Civil Procedure, no suit shall lie to set aside a decree on the ground that the compromise, on which the decree is based, was not lawful. Firstly, the decree of compromise was not sought to be set aside by the first respondent. Secondly, the relief has been sought on the ground that a decree has been obtained unlawfully. There is no bar for laying a suit on the ground that a fraud has been committed to deprive a person of his valuable civil right.

16. Section 34 of the SARFAESI Act debars the civil court from entertaining any suit in respect of any matter which falls within the jurisdiction of the Debts Recovery Tribunal or the Appellate Tribunal as the case may be. As already pointed out by this court, as regards the allegation of fraud in obtaining certain orders depriving the valuable right of a third party, it is only the civil court which has got jurisdiction to deal with it. Such an issue falls outside the purview of the Debts Recovery Tribunal or the Appellate Tribunal. 17. Section 20(2) of the RDB Act debars preference of any appeal before the Appellate Tribunal from an order made by a Debts Recovery Tribunal with the consent of the parties. As already pointed out, this is not a suit to set aside the order passed by the Tribunal. The first respondent challenges only the implementation of the order of attachment and the direction passed by the fifth respondent to issue duplicate debentures. Therefore, the aforesaid provision does not apply to the facts of this case. @page-Mad78 18 True it is that any person aggrieved by an order of the Recovery Officer made under the RDB Act may prefer an appeal to the Debts Recovery Tribunal within thirty days from the date on which a copy of the order was issued to him. The first respondent is an aggrieved party to the aforesaid order. But, its grievance is not against a compromise decree passed by the Tribunal, but, as against the implementation of the order of attachment and the direction to issue duplicate debentures on the ground that fraud has been played to knock away his valuable civil rights. Appeal before the Tribunal as against the order of the Recovery Officer on the aforesaid set of facts does not arise. The first respondent has rightly approached this court seeking the prayer as detailed above. Further, only during the course of trial, the court can determine whether any fraud has been committed in obtaining orders from the Tribunal as well as from the Recovery Officer. 19. In the above facts and circumstances, this court holds that sufficient cause of action has been pleaded in the cause of action paragraph in the plaint and that the suit is not barred by law. The application, therefore, deserves dismissal and accordingly, it stands dismissed. Petition dismissed. AIR 2009 MADRAS 78 "Bharat Matrimony. Com. P. Ltd. v. People Interactive (I) Pvt. Ltd." MADRAS HIGH COURT Coram : 1 M. JEYAPAUL, J. ( Single Bench ) Bharat Matrimony. Com. P., Ltd., Chennai v. People Interactive (I) Pvt. Ltd., Chennai O.A. Nos. 418 of 419 of 2007, D/- 5 -9 -2008. (A) Copyright Act (14 of 1957), S.51 - COPYRIGHT - INJUNCTION - Infringement of copyright - Injunction Computer system created by applicant by using IVR (Interactive Voice Responses) to cater needs of matrimonial alliance seekers - Same services provided by respondent matrimonial commatrimonial with

identical feature - IVR being a very common system broadly used by Corporative Sectors and Banking Industries - Cannot be monopolized - Creating a new computer system by using IVR is only an idea Cannot be said to be a unique innovation and idea or concept of such computer programmes cannot be copyrighted - Respondent matrimonial com being a website bound to use such a common system like other corporate sectors - No originality was established - Non injunction can be granted. 2003 (47) SCL 445 (Cal), Relied, on. 2007 Vol. 109 (2) Bom LR 981, AIR 2002 Delhi 379 Distinguished. (Para 20) (B) Copyright Act (14 of 1957), S.17 - COPYRIGHT - First owner of copyright - Employer is said to be the proprietor of copyright of work created by his employee during employment - Employer shall prove that his employee made said literary work - No affidavit was filed by employee to prima facie show the alleged computer programe was created by him - No authorship was proved - Employer cannot be said to be first owner of said computer programme. (Para 6) (C) Copyright Act (14 of 1957), S.2(o) - COPYRIGHT - WORDS AND PHRASES - "Literary work" - Includes computer programme and compilation including Computer Data Bases. (Para 7) Cases Referred : Chronological Paras 12

2007 (109) 2 Bom LR 981 (Disiting) 2007 (109) 3 Bom LR 2072 2003 (26) PTC 140 (Del) 13 2003 (47) SCL 445 (Cal) (Rel. on) 17 AIR 2002 Del 379 (Disting) (1890) LR 25 QBD 99 18 11 14

Judgement ORDER :- These applications are filed seeking ad interim injunction restraining the respondents from infringing of copyrights and from passing off their "Phone Validation Services" as that of the plaintiffs service. 2. The applicants/plaintiffs have contended in their applications that the applicant, who is a pioneer for matrimonial alliance, created a system "Assured Contact-Phone Verification Service" through its employees during the course of employment. The applicant/plaintiff has become the owner and proprietor of the copyright in the system which is inbuilt in the applicant's website. The applicant spent several lakhs of rupees in developing and implementing the unique feature. "Assured Contact-Phone

Verification Services". The unique feature has become synonymous with the applicant's website Bharat Matrimony com. The respondent's website is a direct competitor of the applicant's website under the @page-Mad79 name "My Contact Details". The respondent is offering the very same identical feature to the customers. The same step by step procedure is adopted by the respondent in its website, slavishly imitating the applicant's unique feature. The respondent cannot lavishly copy the features of the applicant which was invented and conceptualised by it. The respondent is misleading the members of the public utilising the aforesaid unique feature in the course of its trade. The applicant has suffered irreparable loss and damage to its business on account of the wrongful activity of the respondent. The applicant is the first owner of the copyright in the Computer Programme for their unique service. Therefore, the applicant has sought for the aforesaid reliefs. 3. The respondent has contended that the applicant's "Assured Contact-Phone Verification Services" does not fall within the defined category of protected work under the Copyright Act. The copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, invention of discovery, regardless of the form in which it is described, illustrated or embodied. The applicant failed to identify the particular employee who purportedly created the "Assured ContractPhone Verification Service". No affidavit was filed by the employee, who allegedly invented, to show prima facie the authorship of the system service. Interactive Voice Response (IVR) system is nothing but a system where a user hears a recorded voice after dialing a particular number and presses an appropriate button in accordance with the instructions provided by the recorded voice. Many Corporates are broadly using the IVR system. The collection of personal information of person seeking to become a member of a website is not either innovative or an improvement of customer friendliness. This is just a matter of common sense and is a standard practice of all website and online service providers. Therefore, the respondent has sought for dismissal of the aforesaid applications. 4. Learned Senior Counsel appearing for the appellants would submit that the respondent, who has hijacked the core idea of the system development using the Interactive Voice Response, has set up an identical platform causing huge loss to the business of the applicant. The copyrights of the mark illustrated has been utilised by the respondent having given a go-by to their outmoded system with some cosmetic changes to the "Assured Contact-Phone Verification System". Therefore, the learned counsel appearing for the applicant would submit that the slavish imitation of the system invented by the applicant is an infringement of the copyright acquired by the applicant investing so much of money on its employees. Therefore, he would submit that the applicant is entitled to the relief as sought for. 5. Mrs. Nalini Chidambaram, learned Senior Counsel appearing for the respondents would submit that no idea or concept can be copyrighted. There is no uniqueness in the procedure adopted by the applicant. The Corporate Sectors and Banking Industries are lavishly using the IVR system. If the applicant is permitted to monopolize such a common system, there will not be any invention in the future Computer Programmes. Such a procedure will have to be necessarily adhered to cater to the needs of the public who seek matrimonial alliance. Further, the procedure being followed by the

respondent is not the photocopy of the system followed by the applicant. Therefore, she would submit that the applications are liable to be dismissed. 6. The Copyright like Patent Right is a monopoly restraining the public from lavish imitation of the invention of an individual. The right to monopolize a particular innovation of an individual preventing others from unfairly availing themselves of the scientific, literary or an artistic work by an individual is recognized under the Copyrights Act. "Though Shall Not Steal" is the basic intention of the principles of copyright. Misappropriation of the original, literary or artistic work created out of the labour skill and copyright of another is prohibited under the law of Copyrights. Proviso (a) to Section 17 of the Copyrights Act recognizes the ownership of copyright of the employer of an employee who, during the course of his employment created an original, literary, dramatic or artistic work. The employer, who is recognized under Section 17 of the Copyrights Act, 1957 as the rightful owner by the proprietor of the Copyright of a work created by his employee shall prove that this employee made the said literary, dramatic or artistic work. In this case, we find that not even an affidavit was filed by the employee of the applicant to show prima facie that a system called "Assured Contract-Phone @page-Mad80 Verification System" was created by the employee of the applicant. 7. Of course, as per section 2(o) of the said Act, Computer Programmes and compilation including Computer Data Bases fall under the category of literary work. 8. The applicant would contend that making use of the security system, IVR and a software, a new system called "Assured Contract-Phone Verification Service" was made by its employees which has become the property of the applicant. 9. As rightly pointed out by the learned Senior Counsel appearing for the respondent, a security system employed by the applicant cannot be held as the unique innovation of the applicant through its employees. Likewise, the IVR system which is lavishly used by the Corporates, Banking Industries, Railways, etc. cannot be monopolized by the applicant on the ground that the IVR system was used to create a novel system called "Assured Contract-Phone Verification System" by the applicant. IVR system is a standardized one which can be obtained by any person from software vendors in the country on payment of necessary fee. 10. It appears that there is nothing unique in the system called "Assured Contact-Phone Verification System" alleged to have been created by the employees of the applicant. If such a common system which is in vogue is permitted to be monopolized by one individual, the growth of such systems will be jeopardized. Further, the idea or concept of such Computer Programmes cannot be copyrighted. 11. The learned Senior Counsel appearing for the applicant referred to an authority in Anil Gupta v. Kunal Dasgupta (AIR 2002 Delhi 379). That was a case where the concept developed and evolved by the plaintiff on circulation to the defendant was appropriated by the defendant violating the confidentiality as recognized under section 16 of the Copyrights Act, 1957. A concept evolved for a TV reality show

which was registered under the Copyrights Act will have to be protected from public domain, it has been held therein. In the instant case, a concept in a Computer Programmes is sought to be copyrighted. Further, it is not a case where the concept was exchanged by the copyright owner with the respondent. Therefore, the aforesaid authority does not apply to the facts and circumstances of the case. 12. On a perusal of the other authority in Urmi Juvekar Chian v. Global Broadcast News Ltd. and another (2007 Vol. 109(2) Bom LR 981) it is found that in a similar case, the Bombay High Court has taken an identical view. That was also a case where there was breach of confidentiality in relation to a concept which was handed over to the defendants. 13. In yet another case in Celador productions Ltd. v. Gaurav Mehrotra (2003 (26) PTC 140) a form of telephone quiz programme called Kaun Banega Crorepati was hijacked by the defendant. The Court, having found that the logos, names and identical photographs of the presenter of the defendant was deceptively found similar to that of the plaintiff, granted an order of injunction. In the instant case, a common concept which is in vogue in the Corparate Sector is sought to be copyrighted. 14. In Zee Entertainment Enterprises Ltd. v. Gajendra Singh and others (2007 Vol. 109(3) Bom LR 2072), the Bombay High Court negatived the plaintiff's claim for copyright over a cinematograph film embodying television game show as it was found that the plaintiff could not establish that the film of the game was prepared by the first defendant during his employment under the plaintiff. But, the facts and circumstances of the aforesaid case is totally different from the fact situation arisen in this case. 15. The U. S. Court of Appeals, Third Circuit, in its judgment in Whelan Associates Inc. v. Jaslow Dental Laboratory, Inc., ETAL delivered on August 4, 1986, has held that the mere idea or concept of a Computerized Programme for operating a dental laboratory would not in and of itself be subject to copyright. Copyright law protects the manner in which the author expresses an idea or concept, but not the idea itself. 16. Therefore, the applicant herein cannot claim copyright for his idea or concept. Further, it is found that the applicant's idea or concept does not have uniqueness or originality. 17. The Calcutta High Court in Barbara Taylor Bradford v. Sahara Media Entertainment Ltd. (2003) 47 SCL 445 (Cal) has held that the law protects only the originality of expression. But, such original of artistic works shall not be overprotected curbing @page-Mad81 down the future artistic works. There is a caveat that if plots and characters are allowed to be protected by copyright, original artist could not write anything 'original' at all. 18. The Court finds in the instant case that there appears to be no originality of expression in the system alleged to have been adopted by the applicant. 19. In 99 Kenrick and Co. v. Lawrence and Co. ((1890), L. R. 25 Q. B. D. 99), it has been categorically held as follo - a

"The first question which arises is, what is and what is not the nature of the right conferred under the Act upon the 102 author by the registration of the drawing of which he is the author. It is perhaps easier to say what it is not than to give a satisfactory definition of what it is, and I think that I am upon very safe ground in saying that the mere choice of subject can rarely, if ever, confer upon the author of the drawing an exclusive right to represent the subject, and certainly where the subject chosen is merely the representation to the eye of a simple operation which must be performed by every person who records a vote there cannot possibly be an exclusive right to represent in a picture that operation." A simple operation which could be performed by another person for that matter cannot be copyrighted. Every matrimonial website has to adheres to this sort of simple operation which cannot be monopolized. 20. The applicant has failed to establish prima facie that an identical platform using Interactive Voice Response, a unique one developed by its employee was imitated by the respondent. After all, it is only an idea or concept which cannot be copyrighted. Further, the matrimonial.com is bound to use such a common system to cater to the needs of the matrimonial alliance seekers. A very Common IVR system which is in vogue in the other Corporate Sectors and Banking Industries has been used in the "Assured Contract-Phone Verification System" adopted by the applicant. 21. In view of the above, the Court finds that the applicant has failed to establish a prima facie case for grant of temporary injunction as sought for. If temporary injunction is granted in favour of the applicant during the pendency of the suit, much hardship will be caused to the business of the respondent. The balance of convenience is found only in favour of the respondent. Therefore, both the applications stand dismissed. Petition dismissed. AIR 2009 MADRAS 81 "D. D. M. and E. Trust v. Housing and Urban Development Corpn. Ltd." MADRAS HIGH COURT Coram : 1 K. K. SASIDHARAN, J. ( Single Bench ) Deen Dayal Medical and Educational Trust v. Housing and Urban Development Corpn. Ltd., New Delhi and Ors. W.P. No. 27677 of 2007, D/- 22 -7 -2008. Constitution of India, Art.226, Art.12 - WRITS - STATE - JUDICIAL REVIEW - WORDS AND PHRASES Judicial review - Banking transactions - Application for loan - Rejected by Bank on ground of lack of financial viability and improper project revenue stream - Detailed reasons assigned - Merely because process fee has been paid does not bound bank to grant loan - Also unfair treatment by bank not demonstrated - Decision of bank cannot be interfered - Sufficiency of reasons for rejecting loan application cannot be considered by High Court - Courts cannot substitute its decision in place of

decision of bank either for grant or refusal of loan even if a wrong decision taken by bank - Bank though 'State' within meaning of Art.12 - All transactions of Bank are not liable for judicial scrutiny. 2005 (3) Scale 414 Relied on. Cases Referred : (Paras 6, 7, 8, 9, 11)

Chronological Paras 12

2005 (3) Scale 414 (Rel. on) AIR 1978 SC 851 10

K. Selvaraj, for Petitioner; K.S. Sundar, for Respondents. Judgement ORDER :- This Writ Petition has been preferred by an Educational Trust praying for a Writ of Certiorarified Mandamus to call for the records relating to the order of the 2nd respondent dated 24-22007 proceedings No. HUDCO/DDMET/2007/33360 and the consequential order of the third respondent dated 15-6-2007 in proceedings No. HUDCO/OW/DDMET/2007, quash the same and consequently direct the respondents to process the application of the petitioner for loan dated 20-7-2006. 2. Factual details as culled out from the affidavit filed in support of the Writ Petition are as under :(a) The petitioner is an Educational Trust functioning at Chennai and they have submitted @page-Mad82 an application on 17-7-2006 to the fourth respondent for availing loan for construction of building and purchase of equipments for the proposed medical college. The fourth respondent called upon the petitioner to pay the process fee and to apply in the prescribed format and accordingly, the petitioner made an application along with the required documents and the same were acknowledged by the respondents. Subsequently, the Inspection Team of the respondents visited the college on 20-8-2006 and verified the existing buildings, lands, hospital etc. and submitted its report to the respondents. However, the petitioner did not receive any communication from the respondents and as such, the petitioner made a series of representations to the respondents and ultimately the second respondent as per proceedings dated 29-1-2007 informed them that they are unable to consider the request of the petitioner for grant of loan. Since no reasons were found mentioned in the said proceedings, the petitioner submitted a letter dated 14-2-2007 requesting the respondents to give reasons for such a rejection. The second respondent thereafter as per letter dated 24-2-2007 informed the petitioner about material discrepancy observed by the Inspection Team and their opinion that the proposal did not merit acceptance. Subsequently, the third respondent as per communication dated 15-6-2007 informed the petitioner that they are not in a position to consider the application of the plaintiff and as such, requested them to treat the matter as closed. Aggrieved by those two orders dated 24-2-2007 and 15-62007, the petitioner has filed the Writ Petition.

(b) The fourth respondent has filed a counter-affidavit for and on behalf of all the respondents and in the said counter-affidavit, the fourth respondent has detailed the reasons which made them to reject the loan application submitted by the petitioner. The main reason for rejection of the loan application was the lack of financial viability as well as the improper project revenue stream. There were other reasons also as mentioned in the counter-affidavit to justify their stand that the petitioner was not entitled for loan from the respondents as a matter of right. 3. In the above factual background, I have heard Thiru. Selvaraj, the learned Counsel appearing for the petitioner and Thiru K. Sounder, the learned Counsel appearing for the respondents. 4. The grievance of the petitioner pertains to the rejection of their application for loan. The application submitted by the petitioner was originally rejected as per order dated 29-1-2007 without any reason and subsequently, as per proceedings dated 24-2-2007, the respondents intimated the petitioner that due to certain material discrepancy observed during the inspection made by the Regional Office Officers and the report submitted thereafter, it was felt that the proposal did not merit consideration and accordingly, the same was rejected. Subsequently, as per proceedings dated 15-6-2007 the respondents have given detailed reasons for rejection of the loan application. 5. The learned Counsel appearing for the petitioner contended that the reason that there were material discrepancies found in the inspection made by the RO members were no more valid on account of the subsequent report made by the Mission Member on 10-10-2006, wherein he had withdrawn his earlier supplementary note dated 5-10-2006. 6. It is found from the materials available on record that the proposal given by the petitioner was scrutinized by the Inspection Team and the respondents, and in the said report, there were certain adverse remarks against the petitioner. It is not for this Court to assess the merits or otherwise of the observation made in the Inspection Report as the entire matter pertains to the realm of contract. The petitioner is admittedly an applicant for financial assistance arid the first Respondent is a Bank. The matter in question is a commercial transaction between the Bank and a customer. It is for the Bank to decide as to whether it has to extend financial assistance to a particular customer and in that process, the Bank has to consider so many aspects, including the past transactions of the customer as well as his financial background. The matters which weighed with the Bank in rejecting the proposal cannot be subjected to judicial review like an Appellate authority. In financial matters, especially in banking transactions, review by this Court is very limited and merely because the first Respondent Bank is a State within the meaning of Article 12 of the Constitution of India, it cannot be said that all the transactions of the Bank are liable for judicial scrutiny. 7. In the counter-affidavit filed by the fourth respondent, there were clear indications @page-Mad83 that the project revenue stream was not proper and financial viability was lacking and all these prompted the respondents to reject the application for financial assistance submitted by the petitioner. Sufficiency of those reasons for rejecting the application is not a matter to be considered by this Court

as if this Court has got appellate jurisdiction in respect of the banking transactions of the first Respondent. 8. The learned counsel appearing for the petitioner vehemently contended that the petitioner has paid a sum of Rs. 5,00,000/- as process fee and as such, the respondents should have taken the matter with little seriousness and in the alternative, prayed for remitting the matter to the respondents for reconsideration. Merely because the petitioner has paid Process Fee, it cannot be said that the respondents are bound to sanction financial assistance. There was no promise made by the respondents that the application submitted by the respondents would be considered favourably and as such, there is no question of promissory estoppel. 9. It is true that the first Respondent is a State and they should act in a non-arbitrary manner. The respondents are also expected to act in a fair manner. The petitioner was not able to demonstrate any such unfair treatment by the respondents. 10. The learned Counsel appearing for the petitioner relied on the Judgment of the Apex Court in Mohinder Singh Gill and another v. Chief Election Commissioner reported in AIR 1978 SC 851 and submitted that altogether different reasons are found mentioned in the counter and none of those reasons were found in the impugned Order. I do not find any merit in the said contention in view of the fact that even in the impugned Order issued by the respondents, they have demonstrated that the petitioner was not entitled to the loan as requested by them. 11. It is trite that the jurisdiction of the High Court under Article 226 of the Constitution of India is very limited in respect of banking transactions as well as of financial institutions. Each Bank have got their own guidelines and norms for grant of loans and other financial assistance. Such norms often would vary from Bank to Bank. Many factors do weigh with the banks either for grant or for refusal of loans. The reasons given by the Bank, in case demonstrated to be incorrect, still judicial review is very limited in respect of those decisions, as the Courts cannot substitute its decision in the place of the decision so taken by the banks. 12. The Apex Court in Karnataka State Industrial Investment and Development Corporation Ltd. v. M/s. Cavalet India Ltd. and Ors., reported in 2005 (3) Scale 414, considered the extent of judicial review in respect of transactions of financial institutions and summarized the legal position thus : (i) The High Court while exercising its jurisdiction under Art. 226 of the Constitution does not sit as an appellate authority over the acts and deeds of the financial Corporation and seek to correct them. The Doctrine of fairness does not convert the writ Courts into appellate authorities over administrative authorities. (ii) In a matter between the Corporation and its debtor, a writ Court has no say except in two situations; (a) There is a statutory violation on the part of the Corporation or (b) where the Corporation acts unfairly i.e. unreasonably.

(iii) In commercial matters, the Courts should not risk their judgments for the judgments of the bodies to which that task is assigned. (iv) Unless the action of the financial Corporation is mala fide, even a wrong decision taken by it is not open to challenge. It is not for the Courts or a third party to substitute its decision, however more prudent, commercial or business like it may be, for the decision of the financial Corporation. Hence, whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed for making the Corporation liable." In view of the aforesaid reasons, I am of the view that no interference is called for in the proceedings impugned in the writ Petition. Accordingly, the Writ Petition is dismissed. No costs. Consequently M. P. No. 2/2007 is also dismissed. Petition dismissed. @page-Mad84 AIR 2009 MADRAS 84 "Balmer Lawrie and Co. Ltd. v. A. Jayachandra Reddy" MADRAS HIGH COURT Coram : 1 G. RAJASURIA, J. ( Single Bench ) Balmer Lawrie and Co. Ltd. v. A. Jayachandra Reddy. C.R.P. (PD) 1862 of 2008, D/- 12 -1 -2009. Stamp Act (2 of 1899), S.35 - STAMP DUTY - INJUNCTION - DEED - Insufficient stamp duty - Suit for permanent injunction - Deed of declaration marked on plaintiff's side - Said deed is unilateral document relating to certain rights - Does not require stamp duty - Document marked without paying adequate stamp duty - Not improper. AIR 2001 SC 1158, (2001) 1 MLJ 1, Relied on. Cases Referred : Chronological Paras 4 (Paras 5, 7)

AIR 2001 SC 1158 : 2001 AIR SCW 841 : 2001 Cri LJ 1254 (Rel. on) 2001 (1) Mad LJ 1 (Rel. on) 4

V. Sounder Raj for M/s. V.S. Rajan Associates; for Petitioner; G. Govindarajan, for Respondents. Judgement ORDER:- Animadverting upon the order dated 04.02.2008 passed by the learned XI Assistant Judge, City Civil Court, Chennai in O.S.No.294 of 1998, this civil revision petition is focussed. 2. Heard both sides.

3. A "resume" of facts, which are absolutely necessary and germane for the disposal of this revision would run thus : The respondent filed the suit in O.S.No.294 of 1988 seeking the following relief :for a permanent injunction restraining the defendant herein their agents or servants or officers or men or any one from erecting a gate or in any way interfering with the plaintiff's ingress and egress to the Anna Salai through the declared common passage measuring about 17 feet width and 88 feet depth, more fully described in the plaint schedule "B". The petitioner, being the defendant filed the written statement. During the trial, one document Ex.A4 nomenclatured as deed of declaration was marked on plaintiff's side. However the petitioner/defendant objected for marking. But the trial Court by its order dated 04.02.2008 rejected the contention of the petitioner and marked the documents. Being aggrieved by and dissatisfied with the same, the present civil revision petition has been filed on various grounds. 4. The learned counsel for the revision petitioner, placing reliance on the grounds of revision, would develop his argument to the effect that Ex.A4, despite nomenclatured as deed of declaration, bears only a stamp duty of Rs.10/- and it has not been adequately stamped. But the trial Court ignoring the plea and without even recording the objection of the petitioner, allowed to mark the said document. At this juncture, I recollect and call up the following decisions : (i) AIR 2001 Supreme Court 1158 (Bipin Shantilal Panchal vs. State of Gujarat and another). Certain excerpts from it would run thus : "13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the filial stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."

@page-Mad85 (ii) (2001) 1 MLJ 1 - (A.C.Lakshmipathy and another vs. A.M.Chakrapani Reddiar and others). An excerpt from it would run thus : "42. To sum up the legal position :(I) A family arrangement can be made orally. (II) If made orally, there being no document, no question of registration arises. (III) If the family arrangement is reduced to writing and it purports to create declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act. (IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written. (V) However, a document in the nature of a memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered. (VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. (VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes. (VIII) Whether the purpose is a collateral purpose, is a question of fact depending upon facts and circumstances of each case. A person cannot claim a right or title, to a property under the said document, which is being looked into only for collateral purposes. (IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Sec.35 of the Indian Stamp Act." 5. A bare perusal of the impugned order of the lower court would demonstrate that the lower court in this case, applied its mind relating to stamp duty and held that no stamp duty was payable on Ex.A4. Ex.A4 would demonstrate and exemplify that it is a unilateral document relating to certain rights. In my opinion, such unilateral document does not require any stamp duty as correctly pointed out by the lower Court, however it is found written on an embossed stamp paper of Rs. 10/-. Hence, no interference with the order of the lower Court on that count is required.

6. The learned counsel for the revision petitioner would also submit that the objection of the petitioner has not been recorded and as per the well settled proposition of law, the objection of the petitioner after being recorded, should be decided only along with the suit. 7. I could see considerable force in the submission made by the learned counsel for the revision petitioner and accordingly, while disposing of this civil revision petition, with the finding that the order of the lower court was right in allowing the document to be marked without paying additional stamp duty, I would like to direct the lower Court is directed to make an endorsement in the deposition in brackets that such document has been marked subject to deciding on the relevancy and the admissibility of the same and the actual adjudication on Ex.A4 should be made at the time of the disposal of the suit. 8. With the above observation, this revision is disposed of. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. Order accordingly. AIR 2009 MADRAS 85 "A. Venkatesan v. S. Kalpana" MADRAS HIGH COURT Coram : 1 G. RAJASURIA, J. ( Single Bench ) A. Venkatesan v. S. Kalpana. C.R.P. (PD) No. 3382 of 2008, D/- 27 -1 -2009. Hindu Marriage Act (25 of 1955), S.24 - MAINTENANCE - Interim maintenance - Case of husband that wife is earning much more than him - Onus lies on husband to prove and establish same by placing salary particulars of wife - Simply by invoking the concept burden of proof, the husband cannot try to wriggle out of his liability, to pay interim maintenance. (Para 6) @page-Mad86

T.S. Rajmohan, for Petitioner; S. Pandima, for Respondents. Judgement ORDER :- Animadverting upon the order dated 06.08.2008 passed by the learned I Addl. Family Court, Chennai, in I.A.No.225 of 2008 in O.P.No.2602 of 2005, this civil revision petition is focussed. 2. Heard both sides.

3. The facts giving rise to filing of this revision as stood exposited from the records as well as from the submission made by the learned counsel for the petitioner would run thus : The revision petitioner is the husband of the respondent. He filed the O.P.No.2602 of 2005 seeking nullity of marriage. During the pendency of the same, the wife filed I.A.No.225 of 2008 seeking interim maintenance and for costs. Whereupon, the Court after hearing both sides ordered the husband to pay interim maintenance of Rs. 1,500/- per month and also litigation expense of Rs.4,000/- to the wife. Being aggrieved by and dissatisfied with the order of the lower Court, this revision is focussed on various grounds. 4. The learned counsel for the revision petitioner would develop his argument to the effect that this is a peculiar case in which the wife is earning much more than the husband and before the lower Court, due opportunity was not given to adduce evidence to prove the financial status of the wife. Accordingly, he prays for setting aside the order of the lower Court. 5. A bare perusal of the lower Court's order would reveal that it gave a finding to the effect that the monthly income of the husband was Rs.7,500/- to Rs.8,000/- as he is working as Machine Operator in India Pistons and that his gross salary is Rs.9,300/- p.m. and accordingly, awarded such interim maintenance and expenses in favour of the wife. 6. I would like to point out that there is no indication in the order that the plaintiff/ husband took any steps to secure the salary particulars of the wife from her employer. It is the duty of the husband to prove that the wife is earning sufficiently and thereby she is not entitled to interim maintenance, if he wants himself to wriggle out of the payment of interim maintenance. The law is well settled that in such an application, elaborate enquiry is not contemplated. However, if the husband wants the Court to believe that the wife is having sufficient financial wherewithal to maintain her self, then it is for him to establish the same and simply by invoking the concept burden of proof, the husband cannot try to wriggle out his liability. Now the learned counsel for the petitioner would submit that had opportunity been given to the husband, he would have certainly placed relevant materials before the Court and convinced the Court. In this factual matrix, I would like to confirm the order of the lower Court dismissing this revision with liberty to the petitioner to gather salary particulars of the wife and file an application before the lower Court for recalling the order, if at all he could do so. In the peculiar circumstances, the wife has not chosen to appear before this Court so as to enable the Court to gather particulars from her regarding salary. Hence in this singularly singular circumstances, the aforesaid liberty is given to the husband to get processed the matter before the lower Court, till the order in I.A.No.225 of 2008 is recalled by the Family Court, it shall hold good and the husband shall honour it. 7. The learned counsel for the revision petitioner/husband would submit that a time frame may be fixed for the disposal of the O.P.2602 of 2005 itself. I find considerable force in the submission made by the learned counsel for the revision petitioner. Accordingly, the lower Court is directed to dispose the O.P.No.2602 of 2005 within a period of two months from the date of receipt of a copy of this order and report compliance.

Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Petition dismissed. AIR 2009 MADRAS 86 "M. Revathi v. R. Alamelu" MADRAS HIGH COURT Coram : 1 G. RAJASURIA, J. ( Single Bench ) M. Revathi v. R. Alamelu and Ors. A.S. No. 92 of 1999 and C.M.P. No. 872 of 1999, D/- 28 -1 -2009. Hindu Succession Act (30 of 1956), S.23 (as deleted by Act 39 of 2005) - SUCCESSION - PARTITION AMENDMENT - Partition of dwelling house - S.23 deleted by amendment Act of 2005 - Amendment coming into force during pendency of appeal - Amendment though prospective appeal is deemed to be continuation of suit - Driving female heir/plaintiff @page-Mad87 to file fresh suit invoking Amendment Act is mere hyper technicality - Partition can be ordered in respect of dwelling house in occupation of male heir to extent of 1/8th share of plaintiff/female heir. (Para 6)

R. Sunil Kumar, for Appellant. Judgement JUDGMENT :- This appeal is focussed as against the judgment and decree dated 26.06.1997, passed by the learned V Addl. City Civil Judge, Madras in O.S.No. 11886 of 1996. For the sake of convenience, the parties are referred to hereunder according to their litigative status before the trial Court. 2. Niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus : One R.Rajagopal had seven children, so to say, the plaintiff and defendants 2 to 7. D1 is the widow of deceased Rajagopal who died in the year 1992 leaving behind the plaintiff and the defendants as his legal heirs. The defendants 1 to 3 entered appearance and filed their written statement. Others remained ex parte. The trial Court framed the relevant issues. 3. On the side of the plaintiff P.W. 1 was examined and Exs.A1 was marked. On the side of the defendants D.W. 1 was examined and no exhibit was marked. 4. Ultimately the trial Court dismissed the suit for partition on the sole ground that the plaintiff being a female member cannot ask for partition of a dwelling house in the occupation of a male heir as per

Section 23 of the Hindu Succession Act. However, the lower Court ordered accounts to be furnished to the plaintiff relating to the income derived from the house, as a portion of the house was rented out to tenants. Being aggrieved by and dissatisfied with the judgment of the lower Court, this appeal has been filed on various grounds, the gist and kernel of them would be to the effect that the trial Court should have ordered partition as the true purport of Section 23 of the Hindu Succession Act would not be a bar for seeking partition in the facts and circumstances of the case, as part of the property was already let out to the tenants and it is not in the exclusive possession of the male members. 5. Despite notice to the respondents, no one appeared. 6. At the hearing, the learned counsel for the appellant appropriately and appositely, correctly and convincingly drew the attention of this Court to the recent amendment to the Hindu Succession (Amendment) Act, 2005 (39 of 2005) deleting Section 23 of the Act. No doubt the amendment Act shall have prospective effect, but practically if the matter is viewed, it is clear that as per the Hindu Succession (Amendment) Act, 2005 the plaintiff is entitled to partition of the dwelling house property also and such an amendment has come into vogue during the pendency of the appeal. The appeal is deemed to be in continuation of the suit proceedings. It would be a mere hyper technicality if the appellant/plaintiff is driven to the extent of filing a fresh suit invoking the said recent Hindu Succession (Amendment) Act 2005 (39 of 2005) and in such a case, I am having no hesitation in construing that in this case the erstwhile Section 23 is having no application and accordingly partition could be ordered in respect of the 1/8th share of the plaintiff. 7. Accordingly, preliminary decree is ordered to be passed and to that effect, that portion of the judgment and decree of the lower Court in dismissing the first prayer of the plaintiff in the suit shall stand set aside. It is quite obvious and apparent that the said Rajagopal died leaving behind his seven children and his widow and as such, each one is entitled to 1/8th share. Accordingly, this appeal is disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. Order accordingly. AIR 2009 MADRAS 87 "R. Mageswari v. A. Sengoda Gounder" MADRAS HIGH COURT Coram : 2 S. J. MUKHOPADHAYA AND V. DHANAPALAN, JJ. ( Division Bench ) R. Mageswari v. A. Sengoda Gounder and Ors. W.A. No. 1954 of 2002, D/- 1 -12 -2008. Motor Vehicles Act (59 of 1988), S.103(2) - T.N. Motor Vehicles (Special Provisions) Act (41 of 1992), S.7, S.6(4) - MOTOR VEHICLES - Application for grant of stage carriage permit - Rejection and abatement Private operators applied for grant of stage carriage permit in respect of a particular route - Route applied for overlapped a notified route covered by an approved scheme - No new or renewed permit

@page-Mad88 to be granted - All pending applications and appeals relating thereto stand abated on enactment of Special Act - Moreover private operators sought for stage carriage permits for general purpose and not for special purpose as envisaged u/S.88(8) of Motor Vehicles Act. AIR 1994 SC 2229; AIR 2005 SC 2663, Disting. Cases Referred : Chronological Paras 6, 18 5, 17 (Paras 10, 12, 16)

AIR 2005 SC 2663 : 2005 AIR SCW 2890 (Disting.) AIR 1994 SC 2229 : 1994 AIR SCW 2037 (Disting.)

T. Padmanabhan, for R. Natesan, V.T. Gopalan, Sr. Counsel, C.R. Krishnamoorthy, M. Palani, for Appellants; D. Sreenivasan, Spl. Govt. Pleader, M. Palani, V.R. Kamalanathan, T. Chandra-sekaran, AR. L. Sundaresan, Sr. Counsel, for M/s. AL. Ganthimathi, T. Mohan for R. Natesan, for Respondents. Judgement V. DHANAPALAN, J. :- While Writ Appeal Nos.1954 to 1961 of 2002 have been preferred by the appellants, who are the applicants for grant of stage carriage permits, against the order of a learned single Judge, dated 21.12.2001, setting aside the order of the State Transport Appellate Tribunal, Madras, dated 08,06.1993, directing for grant of permits in favour of the appellants, W.A.Nos.2771 to 2774 of 2003 are preferred by the objectors/private existing operators against the order of another learned single Judge, dated 03.07.2000, dismissing the writ petitions to set aside the very same order of the State Transport Appellate Tribunal, dated 08.06.1993. 2. Though all these Writ Appeals involve a common question of law, as they are divided and preferred against two contra decisions, it is proper to segregate these appeals into two categories, while giving disposal. 3. In the first category, let us decide W.A.Nos.1954 to 1961 of 2002. Of these cases, W.A.No.1960 of 2003 is taken for reference. In this case, the appellant had applied for grant of a stage carriage permit in respect of the route Kumarapalayani to Edapadi under the Motor Vehicles Act, 1988, in short, "the Act", before the Regional Transport Authority, Salem, at Namakkal. The route falls under the classification of ordinary stage carriage service, as contemplated under the Tamil Nadu Motor Vehicles Rules, 1989, in short, "the Rules". The route applied for overlaps on the approved scheme in respect of the route Edapadi Bus Stand to Kumarapayalam, published in the Tamil Nadu Government Gazette, dated 22.06.1990, which scheme was challenged before this Court along with other approved schemes and all the schemes were struck down by a Division Bench of this Court, aggrieved over which, Anna Transport Corporation, along with its sister transport undertakings, preferred Special Leave Petitions before the Supreme Court. During the pendency of the Special Leave Petitions, the Apex Court, in a case arising from the State of Rajasthan, involving identical question of law, took a contra view to that of this Court and impliedly overruled the said judgment. Thereafter, the Regional Transport Authority, taking into

account the fact that the grant route applied for overlaps on the approved scheme route, rejected the application, by its order, dated 19.05.1992. Anguished over the said order of the authority, the appellant preferred an appeal on the file of the State Transport Appellate Tribunal. Pending the said appeal, the Supreme Court set aside the judgment of the Division Bench of this Court, by an order dated 16.04.1993 and, consequently, the schemes were restored. The State Transport Appellate Tribunal held that the schemes relied upon by the Corporation did not affect the grant route applied for by the appellant, as that being mofussil service, whereas the scheme contemplated town service. On that ground, the Tribunal directed the authority to grant permit in favour of the appellant. The said direction was challenged by the Corporation and also the private operators/objectors in the Writ Petitions. 4. The learned single Judge, after analysing Rule 3 Sub-rules (e) (i) (p) as regards "City and Town Service", "express service" and "ordinary service" and holding that there was no classification of service as mofussil either under the Act or under the Rules and that the permit sought to be granted overlapped on an approved scheme route, allowed the Writ Petitions, setting aside the order of the Tribunal. Hence, these appeals, at the instance of the applicants. 5. Learned counsel for the appellant would contend that the draft and approved schemes and nationalisation have always made a clear distinction between express @page-Mad89 buses, mofussil buses and city or town buses; there cannot be a town service route for more than 30 kms. and one of the termini has to be inside a notified town area; the seating capacity of the vehicles is also hugely different since the town services provide for carrying almost 85 passengers including standing passengers and that the word 'ordinary' does not mean moffusil buses. It is also his contention that there is a difference between mofussil and town services; the scheme is intended only for plying ordinary services as per clause 3 and clause 6 shows that the State Transport Undertaking is intending to run only town services but not mofussil services; Edapadi to Kumarapalayam is an ordinary town service route only and, hence, the findings of the learned single Judge with regard to the interpretation of the scheme are erroneous and against the settled law on the subject. In his last limb of contentions, the learned counsel would submit that the Motor Vehicles Act 1988 has taken away the right of the existing operators to file objections and the purpose of enacting the Act was to liberalise the grant of permits. The learned counsel would cite a decision of the Supreme Court in Mithilesh Rani and others v. RTA, Dehradun, AIR 1994 Supreme Court 2229, wherein it was held as under : "12. A perusal of the said paragraph would show that the expression allied routes referred to the extensions of the route concerned therein. The said expression cannot take in the route concerned herein. No route-map was also filed in the said writ petition from which it can be said that the "allied routes" mentioned in the said writ petition included the route in question herein....In such a situation, there could not have been any objection to the grant of permits to the appellants on the said route...."

6. On the other hand, learned counsel for the respondents would vehemently argue that these appeals were pending on the date of notification of the Special Act and the route applied for overlapped the

notified route; therefore, once the grant route overlapped on such notified route, on the teeth of Section 7 of the State Act viz., Special Act, the appeals automatically stood abated irrespective of the terms of the scheme; the word 'mofussil' had been stated in the format of the old scheme prescribed under the repealed rules and the word 'ordinary' is not found in that scheme and consequently in the absence of mofussil service in the present rule and format prescribed thereunder, it cannot be said that the word 'ordinary' denotes only an ordinary service within the town and it does not exclude mofussil service. The learned counsel has brought to the notice of this Court a decision of the Supreme Court in APSRTC v. Regional Transport Authority, 2005 (4) Supreme Court Cases 391 : (AIR 2005 SC 2663), wherein it was held as follows : "11. The object of the Scheme appears to be to nationalise the entire service. Through nationalisation of the service, effort is to provide better service to the commuters at cheaper cost. One of the exceptions to the Scheme is for existing town services operating on the notified routes. The reason for which appears to be that the existing town services need not be disturbed so that the commuters do not suffer." "21. In our view, under Exception 2 contained in the note appended to the Scheme, subject-matter of the present appeals, permits can be issued only to existing town services operating on the notified routes. This means only existing operators on the notified routes are eligible for permits. Fresh applicants or future applicants are totally ineligible for getting permits for town services operating on notified routes...." 7. We have heard the learned counsel for the parties and also gone through the records. 8. There is no classification of service as "mofussil" either under the Act or under the Rules and the permit sought to be granted overlapped on an approved scheme route. For the scheme Kumarapalayam to Edapadi, the portion of route that overlapped is Kumarapalayama to Annamarkoil. Section 103 (2) of the Act reads as under : "For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the State Transport Authority or as the case may be, the Regional Transport Authority concerned may, by order.(a) refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending. 10. The above provision would clearly indicate that where there is an approved scheme already existing in respect of a notified area or notified route, the Regional @page-Mad90 Transport Authority may refuse to entertain the application for grant of permit or reject any such application. The same has exactly happened in these cases. In other words, as there is an approved scheme already existing in respect of the notified route viz., Kumarapalayam to Edipadi, the Regional

Transport Authority has rejected the application of the appellant for grant of permit, which cannot be found fault with. 11. It is equally relevant to extract Section 7 of the Tamil Nadu Motor Vehicles (Special Provisions) Act, popularly known as Tamil Nadu Act 41 of 1992, in short, "the Special Act", which reads thus : "7. Pending applications and appeals for grant of new permits to abate.-Notwithstanding anything contained in any law for the time being in force, every application for grant of new permit on a notified route and all appeals arising therefrom or relating thereto, made or preferred before the date of publication of this Act in the Tamil Nadu Government Gazette, and pending before any court, with any officer, authority or tribunal constituted under the Motor Vehicles Act, on the said date, shall abate." 12. From the above provision, it is manifest that every application for grant of new permit on a notified route and all appeals, arising therefrom or relating thereto, made or preferred before the date of the publication of this Act in the Tamil Nadu Government Gazette and pending before any Court or with any officer, authority or tribunal, on the said date, shall stand abated. 13. The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992, received the assent of the President on 31.07.1992 and the same was published in the Tamil Nadu Government Gazette on the same day. So, on the date of publication of this Act in the Gazette, the appeal filed by the appellant was pending. In addition, the grant route applied for overlapped on the notified route. As such, on the date of enactment of this Special Act, the appeal filed by the appellant was hit by Section 7. Further, on the date when the appeal was heard by the Tribunal i.e., 08.06.1993, there was no appeal pending in the eye of law, as the same stood abated on the date of notification of the Special Act. This Special Act is, meant for stage carriage service and when it contemplates any route covered by an approved scheme route, whether it is town or ordinary or express, no class of service can be granted on such approved schemes. That being the legal position, the Tribunal committed an error in directing for grant of permit on the notified route, on the strength of classification of services within the stage carriage. 14. It is also quite appropriate to quote sub-section (4) of Section 6 of the Special Act, which runs as follows : "Notwithstanding anything contained in this Act, no new permit shall be granted under this Act to any person on any route covered by an approved scheme." 15. It is needless to mention that the Special Act prevails over the General Act. The above provision also makes evident that no new permit shall be granted under the Special Act to any person on any route covered by an approved scheme, as, admittedly, the route in question is a notified route and covered by the approved scheme. Therefore, there cannot be two permits on one particular notified route, covered by the scheme. 16. The permits sought for by the private operators in the present case cannot be equated with special permits envisaged under Section 88 (8) of the Motor Vehicles Act 1988. The object of granting special permits is totally different. Special permits are meant to cater to special needs of the public on special

occasions like marriage parties, pilgrimage etc. In other words, the permits sought for by the private operators are stage carriage permits for general purpose and not for a particular purpose or occasion. Were the permits sought for special in nature, the situation would have been different. 17. Though the case of Mithilesh Rani was cited by the learned counsel for the appellant to show that the Supreme Court was not inclined to entertain the objections raised by the private operators, it is not applicable to the case on hand, for the reason, that, pursuant to the said decision, the Tamil Nadu Motor Vehicles (Special Provisions) Act was enacted, which prohibited the grant of new permits. 18. Similarly, the decision cited by the learned counsel for the respondents in APSRTC's case to the effect that only existing operators on the notified routes are eligible for permits and fresh applicants or future applicants are totally ineligible for getting permits for town services operating on notified routes does not bind this Court because, in that case, a Constitution Bench of the Supreme Court arrived at such a decision, @page-Mad91 based on Exception 2, contained in the note appended to the scheme, which was categorical that the scheme should not affect the existing town services operating on the notified routes. 19. In view of the above statutory provisions, observations and findings, these Writ Appeals fail and are dismissed, confirming the order of the learned single Judge. No costs. 20. Following the dismissal of the above Writ Appeals, the second category of cases viz., W.A.Nos.2771 to 2774 of 2003 stand allowed, setting aside the order of the learned single Judge. No costs. Order accordingly. AIR 2009 MADRAS 91 "Udhayabhanu v. Ranganayaki" MADRAS HIGH COURT Coram : 1 S. PALANIVELU, J. ( Single Bench ) Udhayabhanu v. Ranganayaki and Anr. C.R.P. NPD. No. 2794 of 2007 and M.P. No. 3 of 2007, D/- 30 -1 -2009. (A) Family Courts Act (66 of 1984), S.7 - FAMILY COURT - ADOPTION - Jurisdiction of family Court - Affairs relating to adoption - Cannot be dealt with by family Court u/S.7 - Concept of adoption cannot be brought within purview of Act. The Family Court shall have the jurisdiction to decide the matters enlisted under the Explanation to S. 7. All of the abovesaid categories of proceedings are relatable to matrimonial affairs and apart from other categories, the Family Court will have no jurisdiction. The area covered by Explanation to S. 7 does not provide for dealing with the matter of adoption. In case, if a Family Court is conferred with any other jurisdiction by the authority concerned under S. 7(2)(b) of the Act, then it may deal with said subject for

which it was duly conferred with powers. But, there is nothing to show that the Family Court has been conferred with powers to take up the matters concerning adoption. The primary object of constitution of the Family Court Act is to bring about cordial and amicable settlement in respect of matrimonial disputes. Those should be adjudicated in a congenial atmosphere in a Court specially constituted for the purpose. While the provisions of the Act are for the purpose of settling the issues with regard to guardianship of a person or access to any minor, that is also for the purpose of declaration as to the legitimacy of any person, there is no indication as regards the adoption. In short, the concept of adoption could not be brought within the purview of the Act. (Para 7) Any disputes with regard to the adoption and the declaration respecting any aspect touching adoption could be settled only by the competent Court of Civil jurisdiction, which is certainly not a Family Court. Hence, it is held that the Family Court has no jurisdiction to deal with the matters pertaining to the provisions under the Hindu Adoptions and Maintenance Act, 1956. (Para 8) (B) Constitution of India, Art.227 - Family Courts Act (66 of 1984), S.7 - HIGH COURT - FAMILY COURT ADOPTION - Supervisory jurisdiction of High Court - Family Court not conferred with any powers to try matters relating to adoption falling under provisions of Hindu Adoption and Maintenance Act - Family Court has no jurisdiction to entertain any claim in this regard and order passed by Family Court without jurisdiction is non-est in eye of law - High Court under Art.227 can interfere and set aside orders passed by Family Court. (Paras 12, 13, 14) Cases Referred : AIR 1991 Kant 6 11 Veerakathiravan, for Petitioner; Rajaraman, for Respondents. Judgement ORDER :- The Civil Revision Petition has been filed to set aside the fair and final order passed in H.A.M.O.P.No.443 of 2005, dated 26.09.2005, on the file of the Family Court, Coimbatore and to allow the above Civil Revision Petition. 2. The following are the allegations in brief found in the petition filed by the 2nd respondent : Both the petitioners are husband and wife. Their marriage was held on 25.08.1952. They had no children. The Respondent is the sister's husband of the 2nd petitioner. His wife is Pushpavalli. Their marriage took place in 1968. They have three daughters. Among them, the first daughter is one Vijaya. She was born on 13.03.1970. The 2nd and 3rd children Maheswari and Sarada are living with their parents. Pushpavalli died on 27.9.1994. The petitioners decided to adopt the said Vijaya for which the respondent agreed. On 5.7.1970, the adoption took place. It was not for any consideration. The petitioners got the capacity to take Vijaya in @page-Mad92 Chronological Paras

adoption and in turn, she was also capable of being taken to adoption. The parties are Hindus. The custom and usage furnished in the petitioners to take the child in adoption. The adoptive parents do not have any progenies. As per the Hindu Customs, rites and rituals, a 'Homam' was performed for taking Vijaya in adoption. On 2.6.1997, the adoption deed was registered in Gandhipuram Sub-Registrar Office at Coimbatore. Since the adoption of Vijaya by this petitioners has to be regularised, this petition has been filed. 3. The respondent remained ex-parte before the Family Court. Both the petitioners were examined as P.W.1 and P.W.2. The Adoption Deed, dated 2.6.1997, was also marked. The learned Judge of the Family Court, Coimbatore has adverted to the facts of the case and finally concluded that the petitioners are entitled for the relief of regularisation of the adoption as pleaded in the petition. 4. The learned counsel for the petitioner would submit that the petitioner being one among the legal heirs of the propositus Ramasamy Naicker, she is entitled to question the adoption allegedly undertaken place by the petitioners, even though, she is not a party to the proceedings before the Family Court. It is his further contention that suppressing the material facts projecting false claims and in order to gain wrongfully, the petitioners approached the wrong forum, namely, the Family Court, instead of putting forth their request for relief before the competent civil court. 5. Conversely, Mr.T.R.Rajaram, learned, counsel for the respondents 1 and 2 would submit that the present petitioner has no locus standi to file this application and she is in no way prejudiced by the adoption and the relief accorded by the Family Court, is legally sustainable. 6. It is the bottom-line contention of the petitioner that the Family Court is not competent to deal with the issue. It is also argued that Rangasamy was no more on .the date of passing the order of the Family Court on 26.09.2005, since he breathed his last on 10.09.2005 itself. Hence, it is stated that .the order passed by the Family Court is a nullity, having no legal force. In order to find out whether the Family Court has got jurisdiction to deal with the affairs relating to adoption, Section 7 of the Family Courts Act, 1984, (in short Act).has to be gone through, which reads as follows : Section 7: Jurisdiction 1)1) Subject to the other provisions of this Act, a Family Court shall (a) have and exercise all the jurisdiction execrable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and (b) be deemed, for the purpose of exercising such jurisdiction under such law, to be a District Court or, as the case may be such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. Explanation :- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature namely :-

(a) a suit or proceedings between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage. (b) a suit or proceedings for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceedings between the parties to a marriage with respect to the property of the parties of either of them; (d) a suit or proceedings for an order or injunction in circumstances arising out a marital relationship. (e) a suit or proceedings for a declaration as to the legitimacy of any person; (f) a suit or proceedings for maintenance; (g) a suit or proceedings in relation to the guardianship of the person or the custody of, or access to any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise :(a) a jurisdiction execrable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973; (2 of 1974) and (b) such other jurisdiction may be conferred on it by any other enactment. 7. When the abovesaid provisions are scrutinised, it comes light that the Family Court shall have the jurisdiction to decide the matters enlisted under the Explanation @page-Mad93 to Section 7. All of the above said categories of proceedings are relatable to matrimonial affairs and apart from other categories, the Family Court will have no jurisdiction. The area covered by explanation to Section 7 does not provide for dealing with the matter of adoption. In case, if a Family Court is conferred with any other jurisdiction by the authority concerned under Section 7(2)(b) of the Act, then it may deal with said subject for which it was duly conferred with powers. But, there is nothing to show that the Family Court has been conferred with powers to take up the matters concerning adoption. The primary object of constitution of the Family Court Act is to bring about cordial and amicable settlement in respect of matrimonial disputes. Those should be adjudicated in a congenial atmosphere in a court specially constituted for the purpose. While the provisions of the Act are for the purpose of settling the issues with regard to guardianship of a person or access to any minor, that is also for the purpose of declaration as to the legitimacy of any person, there is no indication as regards the adoption. In short, the concept of adoption could not be brought within the purview of the Act. 8. Any disputes with regard to the adoption and the declaration respecting any aspect touching adoption could be settled only by the competent court of civil jurisdiction, which is certainly not a Family

Court. Hence, it is held that the Family Court has no jurisdiction to deal with the matters pertaining to the provisions under the Hindu Adoptions and Maintenance Act, 1956. 9. The family properties originally belonged to one Ramasamy Naicker, who had two sons by name Rangasamy Naicker and Gopal. Ranganayaki is the wife of Rangasamy Naicker. He died on 19.09.2005. Saradha was wife of Gopal and both of them are no more. Their daughter is Udaya Banu and son is one Devarajulu. Devarajulu died. The remaining heirs to Ramasamy Naicker are Ranganayaki and Udaya Banu alone, each represents their respective branch,' Hence, only one heir available in each of the branch. They have, staged that both the petitioners took Vijaya in adoption and even though in case, if the adoption is valid, by means of which the petitioner would not get prejudiced. Whatever share she is legally eligible will come her and the share available to the other branch will come to Ranganayaki. In this circumstances, a question arises in what way the petitioner is prejudiced with the adoption. 10. The learned counsel appearing for the petitioner would answer this question by stating that by exercising power under Article 227 of the Constitution of India, this Court can interfere with the jurisdiction wrongly exercised by the court below in the interest of justice. It is his further contention that a person aggrieved need not have been affected directly by the proceedings of the court and if anybody else is felt prejudiced by the wrong exercise of the jurisdiction by a court, he may approach this Court. 11. He cites decision of a Division Bench of Karnataka High Court in AIR 1991 Karnataka 6; In the matter of Canara Bank Relief and Welfare Society and others in which it is observed that the Family Court has no jurisdiction to deal with the matters coming under the Hindu Adoption and Maintenance Act. The operative portion of the said judgment goes thus : "As none of the matters categorised in clauses (a) to (g) of the Explanation to subsection (1) of S.7 of the Family Courts Act or in clauses (a) and (b) of sub-s.(2) thereof can be regarded as a matter relating to grant of previous permission to give a child in adoption by its guardian envisaged in sub-s.(4) of S.9 of the Act, it has to be inevitably held that the manner respecting which applications were made in the Miscellaneous Cases before the Court of City Civil Judge under sub-s.(4) of S.9 of the Act, is not a matter falling within the jurisdiction of the Family Court, respecting which it can exercise jurisdiction under S.7 of the Family Courts Act." 12. The Court is of the opinion that it can interfere with an order passed by a Court, which has patently usurped the jurisdiction exercisable by any other court and there is no impediment to interfere with the same, if the courts, subordinate to the High Court are allowed to transgress their powers by touching the subjects, which are not ear marked for them, the justice will not be rendered to the needy persons. Under supervisory jurisdiction, the High Court has got every power to correct the orders and decisions of the courts below, which are passed without jurisdiction, particularly when they are not specifically conferred with power to try a particular subject. 13. A report was called for from the Principal @page-Mad94

District Judge, Coimbatore, as to whether the Family Court in Coimbatore has been conferred with any powers to try the matters failing under the provisions of the Hindu Adoption and Maintenance Act, for which he has replied that no such powers have been conferred on the Family Court, Coimbatore, to try such matters. When there is no specific powers conferred on the Family Court, Coimbatore to try the matters relating to adoption, it has no jurisdiction to entertain any claim in this regard and the order passed by the said Court without jurisdiction is non-est in the eye of law. 14. In these circumstances, this Court is of the considered view that the powers exercised by the Family Court, Coimbatore in the matter of adoption is not in accordance with law and this Court has to set aside the orders passed by it and the order impugned is set aside. The petition deserves to be allowed. 15. In fine, the Civil Revision Petition is allowed, setting aside the order passed by the learned Judge, Family Court, Coimbatore in HAMOP.No.443/2005 dated 26.09.2005. Consequently, connected Miscellaneous Petition is closed. No costs. Petition allowed. AIR 2009 MADRAS 94 "Malini Srinivasan v. Canara Bank, Chennai" MADRAS HIGH COURT Coram : 2 S. J. MUKHOPADHAYA AND V. DHANAPALAN, JJ. ( Division Bench ) Malini Srinivasan v. Canara Bank, Chennai and Anr. W.P. Nos. 22120 and 25047 of 2008, D/- 12 -12 -2008. Recovery of Debts Due to Banks and Financial Institutions Act (51 of 1993), S.21 - RECOVERY OF DEBT APPEAL - WAIVER - APPELLATE TRIBUNAL - Pre-deposit of debt due, on filing appeal - Waiver of - Bank sanctioned certain loans to borrower - Security provided by a partnership firm - Loan not repaid by borrower - Tribunal directed repayment to be made by partners of firm - Appeal against, filed by partner/petitioner without any pre-deposit u/S.21 with application for waiver of 75% of debt due Appellate Tribunal directed deposit at a reduced rate of 25% - Petitioner having signed resolution for providing security, cannot avoid her liability - She dragged on proceedings deliberately - Further, her financial status also does not entitle her to claim waiver of pre-deposit - 15 days time given to petitioner to make deposit with Appellate Tribunal. (Paras 8, 14, 16) Cases Referred : Chronological Paras

2006 (12) Scale 303 (SC) 13 AIR 1994 SC 923 : 1994 AIR SCW 344 13

C. Ramakrishna, Sr. Counsel for K. Viswanathah, for Petitioner; L. Jayakumar, for Respondent No. 1. Judgement

V. DHANAPALAN, J. :- While W. P. No. 22120 of 2008 has been preferred by the petitioner to quash the interim order of the Debt Recovery Appellate Tribunal, Chennai, dated 01.08.2008, passed in I.A.No.754 of 2007 in U.R.A.No.30 of 2007, W.P.No. 25047 of 2008 is to quash the final order of the said Tribunal, dated 25.09.2008, passed in U.R.A.No.30 of 2007. 2. First respondent bank (in short, "the bank") sanctioned certain loan facilities to M/s.Concise Technologies Pvt.Limited, based upon the security given by a partnership firm, namely, M/s.Venyl General Industries, in which the writ petitioner was one of the partners. Since the said loan was not paid by Concise Technologies Pvt.Ltd., the bank filed a suit on the file of this High Court vide C.S.No.33 of 1996, against the writ petitioner and the others, claiming a sum of Rs.43,42,180/-. Subsequent to the constitution of the Tribunals, the suit was transferred to Debt Recovery Tribunal, Chennai, and renumbered as T.A.No.513 of 1997. After regular trial, the Debt Recovery Tribunal (in short, "DRT") decreed the suit as prayed for by the bank. Thereafter, the writ petitioner preferred an appeal vide U.R.A.No.30 of 2007 on the file of Debt Recovery Appellate Tribunal (in short, "DRAT") without complying with the mandatory provision of Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, with an interlocutory application vide I.A.No.754 of 2007, for waiver of 75% of the debt due. The said interlocutory application was disposed 6f, directing the writ petitioner to deposit about 25% of the certificate amount of Rs.43,42,180/-, rounded off to Rs.10.00 lakhs in two equal instalments of Rs.5.00 lakhs to the bank, the first of which should be payable on or before 08.09.2008 and the second one payable on or before 08.10.2008. However, the writ petitioner failed to comply with the said order. In view of such non-compliance, the @page-Mad95 appeal itself was dismissed by DRAT, which order is under challenge in one of these writ petitions. 3. Learned Senior Counsel for the petitioner would submit that the petitioner is neither a borrower nor a guarantor; no valid mortgage is created concerning the property in favour of the bank; the entries in the Equitable Mortgage Register alone are not sufficient to give legal validity to the alleged claim of the bank of an existence of an equitable mortgage; an unregistered mortgage deed cannot be called in evidence; the dates in the Equitable Mortgage Register have been mala fidely altered by the bank and they are incompatible; the petitioner is not an earning member and, therefore, she is not in a position to deposit the amount, as a condition precedent for hearing the appeal by DRAT. 4. On the other hand, learned counsel for the respondent bank would contend, that, as on date, the liability of Concise Technologies Pvt.Limited is more than Rs.1.00 crore; the petitioner, without complying with the mandatory provision of Section 21 of the Act, is attempting to put forward certain issues, which are already decided by DRT; the requirement of pre-deposit under Section 21 does not militate against the maintainability of the appeal; the petitioner, after complying with the mandatory provisions of Section 21, can very well place her defence in the appeal and, therefore, the writ petitions are liable to be dismissed. 5. We have heard the learned counsel for the parties; given our thoughtful consideration to the rival submissions and also gone through the records.

6. It is not debated that first respondent bank sanctioned certain loan to M/s.Concise Technologies Pvt.Limited, based upon the security given by a partnership firm, namely, M/s.Venyl General Industries, in which the writ petitioner was one of the partners. Since the said loan was not paid by Concise Technologies, the bank filed a suit on the file of this High Court vide C.S.No.33 of 1996, against the writ petitioner and others, claiming a sum of Rs.43,42,180/-, which suit was transferred to DRT, Chennai, and decreed as prayed for, against which the petitioner preferred an appeal on the file of DRAT, Chennai, without depositing 75% of the debt due, as mandated under Section 21 of the Act. However, DRAT, on an application filed by the petitioner, reduced the pre-deposit to 25% and, in spite of that, she failed to deposit the same, which resulted in dismissal of the appeal and filing of these Writ Petitions. 7. Ex.A-32, Resolution, dated 24.10.1991, passed by the partners of M/s.Vinyl General Industries, assumes much significance for deciding the issue in question. The said resolution reads as under : "1. Resolved that the Industrial Shed bearing No.A.14 Thiru Vi. Ka Industrial Estate, Madras-32, belonging to the firm to be offered as collateral security to Canara Bank, Nungambakkam Branch for the loan to be availed by M/s.Concise Technologies (P) Ltd., in which Thiru T.M.Kasthuri Rangan is one of the Directors. 2. It is resolved to authorise Thiru T.M.Kasthuri Rangan to sign and execute any document in favour of the said Bank for and on behalf of the firm. It is further resolved that all the partners should join the execution of the document if so insisted upon by the Bank." 8. On the strength of the above resolution, the title deeds relating to the schedule mentioned property were deposited with the bank, as a security for the liabilities of Concise Technologies P.Ltd. and an equitable mortgage was also created. In this context, it is pertinent to state that the above resolution was signed by the writ petitioner as one of the partners. The petitioner, in her evidence as D.W.1, categorically admitted that she had signed in the documents, namely, Ex.A-32, resolution, dated 24.10.1991, and also Exs.A-33 (a) and A-33(b), letter, dated 24.10.1991, evidencing deposit of title deeds. She, having signed and admitted her signatures in the resolution and the documents, cannot gainsay the liability cast on her. It is also not her case that she was compelled to sign the resolution. She, being a partner of the firm, signed the documents of her volition. 9. Much light also can be, thrown to Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, which runs thus : "21. Deposit of amount of debt due, on filing appeal.- Where an appeal is preferred by any person from whom the amount of debt is due to a bank or a financial institution or a consortium of banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless @page-Mad96 such person has deposited with the Appellate Tribunal seventy-five per cent of the amount of debt so due from him as determined by the Tribunal under section 19. :

Provided that the Appellate Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section." 10. The above Section would make it clear that if an appeal is preferred by any person from whom the amount of debt is due to a bank, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal seventy-five per cent of the amount of debt so due from him or her, as determined by the Tribunal. Therefore, the deposit of seventy-five per cent of the amount of debt due from the petitioner is a statutory requirement to entertain the appeal filed before DRAT. It is true that there is a proviso clause that the Appellate Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section. Debt Recovery Appellate Tribunal, satisfying with the order of Debt Recovery Tribunal, which was passed on merits and after analysing the records available and upon perusing the evidence adduced by both sides, held that the said order had to be construed to be a valid one till the correctness of the same was decided by the Appellate Tribunal, which, in our considered opinion, cannot be found fault with. The writ petitioner, in the said proceedings, was equally bound by the order passed by DRT and, hence, her contentions, how raised in these writ petitions, would have to be considered on merits, only at the time of final disposal of the appeal. Therefore, as a precondition to entertain the appeal, it was mandatory that the said provision of law had to be complied with by the writ petitioner in letter and spirit. It is also important to note that DRAT, instead of directing the writ petitioner to deposit seventy-five per cent of the amount of debt so due from her as determined by the Tribunal, directed for deposit of about twenty-five per cent only and the said amount was also ordered to be paid in two equal monthly instalments of Rs.5.00 lakhs to the respondent bank. Even then, the petitioner had not chosen to deposit the said amount. Hence, the Appellate Tribunal dismissed the appeal for non-compliance of its earlier direction, which was mandatory in nature. 11. It is also seen from the records that during the pendency of appeal before DRAT, one M/s.Balan BioSciences Pvt.Ltd. filed an application, praying to implead them as a necessary party, on the ground that the property referred to in the proceeding was purchased by them under a registered sale deed, dated 21.08.2006, from Vinyl General Industries, from which it is evident that the petitioner, with an intention to drag on the proceeding, deliberately caused much hardship to the bank. If at all the rights of the petitioner were infringed, she could very well place the same before DRAT, after complying with the statutory provision of Section 21 of the Act. This Court is at a loss to understand as to how the petitioner could sell the property, given as security, to a third party, when the issue is sub-judice. Such an attitude on the part of the petitioner shall not be appreciated. 12. It is true that at page No.70 of Equitable Mortgage Register, there is a material alteration of date from 23.10.1991 to 24.10.1991. But, in the same page, the date of deposit is clearly stated as 23.10.1991 and the manager also certified that mortgagor was present on 23.10.1991 and deposited the title deeds. When the date of deposit was clear, the said material alteration, which was probably due to a clerical mistake, cannot be given much importance. 13. With regard to the grievance of the petitioner that because of the hardship she filed a petition for waiver of pre-deposit, the point is to be decided as to whether there is any undue hardship, based on

which the petitioner is entitled for waiver. As regards undue hardship, a proposition has been laid down by the Supreme Court in a number of decisions. A Division Bench of this Court, on an earlier occasion, considered two of the decisions of the Supreme Court, namely, (i) S.Vasudeva v. State of Karnataka and Ors., AIR 1994 SC 923, and (ii) M/s.Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr. 2006 (12) SCALE 303, in an unreported judgment, dated 08.01.2008, passed in W.A.Nos. 1138 to 1144 of 2007. In S.Vasudeva's case, the Supreme Court held that the expression "undue hardship" is normally related to economic hardship. "Undue" Means something, which is not merited by conduct of the claimant or is very much disproportionate to it. Undue hardship is excessive hardship, that is not warranted by circumstances. In M/s.Benara Valves Ltd.'s case, the Apex Court observed as follows : @page-Mad97 "13. For a hardship to be 'undue', it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it." " 14. The word "undue" adds something more than just hardship. It means, an excessive hardship or a hardship greater than the circumstances warrant." 14. In this case, the capacity of the petitioner to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the petitioner to resort to claim waiver of pre-deposit. 15. The other aspect relates to imposition of condition to safeguard the interest of revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interest of revenue. Therefore, the Appellate Tribunal, while dealing with the application filed by the petitioner for waiver of pre-deposit, has considered the materials available on record and stipulated a condition, as required, to safeguard the interest of revenue. 16. In such circumstances and also following ratio laid down by the Supreme Court in the cases referred to above, we are of the considered opinion that the claim of the petitioner for waiver of pre-deposit cannot be granted. However, with a view to give the petitioner an opportunity, we allow a further time of 15 days to deposit the amount, if not already deposited. In the event of such deposit, the Debt Recovery Appellate Tribunal is directed to take up the appeal for hearing and decide the matter on merit and in accordance with law. 17. With the above observation, these Writ Petitions are dismissed. No costs. Consequently, the connected M.P. Nos. 1 of 2008 are also dismissed. Petition dismissed. AIR 2009 MADRAS 97 "Deccan Finance Ltd. v. Regional Transport Officer, Salem" MADRAS HIGH COURT

Coram : 1 S. MANIKUMAR, J. ( Single Bench ) M/s. Deccan Finance Ltd. v. Regional Transport Officer, Salem. W.P. No. 36523 of 2002, W.P.M.P. No. 44381 of 2003, D/- 28 -3 -2008. T.N. Motor Vehicles Taxation Act (13 of 1974), S.88 - Motor Vehicles Act (59 of 1988), S.2(30) - MOTOR VEHICLES - HIRE-PURCHASE AGREEMENT - POSSESSION - Levy of tax - Calling up to financer who is not in possession of vehicle which is subject-matter of higher purchase agreement, to pay tax - Is illegal. When Section 2(30) of the Motor Vehicles Act, clearly defines the word "owner" to mean the person in possession of the vehicle, pursuant to the hire purchase agreement, tax cannot be demanded from the financier, who was neither the permit holder nor the user of the vehicle. There is nothing on record to indicate that the financier had re-possessed the vehicle, either from hirer or person who become the subsequent hirer of the vehicle and used the vehicle during the validity of the permit. In the absence of any verification as to the possession of the vehicle and recording a finding to that effect, mulcting the liability on the financier to pay Motor Vehicle tax and penalty for the period stated in the impugned order, is contrary to the statutory provisions. (Para 17) Cases Referred : 1993 Writ LR 898 Chronological Paras 7, 17

G.R. Swaminathan, for Petitioner; C. Ramesh, Addl. Govt. Pleader, for Respondents. Judgement JUDGMENT :- Deccan Finance Ltd., represented by its Deputy Managing Director, Financier of the vehicle, bearing Registration No. TN 27 J 5400, has challenged the order, dated 3-1-2003, passed by the Regional Transport Officer, Salem, respondent herein, by which, a sum of Rs. 1,62,050/-has been demanded towards Motor Vehicles Tax for the period between 1-10-2003 and 31-12-2003. 2. The respondent has not filed any counter affidavit and therefore, the Writ Petition is disposed of on the merits of the case. 3. Facts leading to the Writ Petition are as follows : The petitioner is the financier of the vehicle bearing Registration No. TN 27 J 5400, which is an omni bus, having All India Permit. They entered into a hire purchase agreement with Thiru S. Sukumar of Salem. He was operating the said vehicle under a permit obtained in his name. A show cause notice, dated 6-112003 was served on the petitioner, calling upon them to explain as to why tax due for the period 1-72003 to 30-9-2003 together with penalty thereon should not be collected. In response to the said notice, the petitioner submitted an @page-Mad98

explanation, pointing out that they are only Financiers and not the owner of the vehicle, as per the Motor Vehicles Act. In spite of the valid explanation offered by the petitioner, the respondent has chosen to pass the impugned order, stating that revenue recovery proceedings would be initiated against him to recover tax dues amounting to Rs. 1,62,050/-. 4. Assailing the impugned order, learned counsel for the petitioner submitted that the respondent has failed to note that as per Section 2(30) of the Motor Vehicles Act, 'owner' means, a person in whose name a motor vehicle stands registered and in relation to a motor vehicle, which is the subject-matter of a hire-purchase agreement, the person in possession of the vehicle under the agreement. Referring to the show cause notice, dated 6-11-2003, he submitted that the All India Permit for the said vehicle in the name of Thiru S. Sukumar, valid up to 12-12-2005 and it was operated by him during its period of validity and therefore, the impugned order, calling upon the financier, who was not in possession of the vehicle, to pay tax is illegal and contrary to Section 2(30) of the Motor Vehicles Act. 5. Learned counsel for the petitioner further submitted that when the possession of the vehicle was specifically denied by the petitioner, the respondent ought to have conducted an enquiry and giving a finding with regard to the possession of the vehicle and as per Section 2(30) of the Act, tax can be collected only from the person in possession of the vehicle under the hire-purchase agreement. 6. Referring to the joint application submitted under Section 82 of the Act to the Regional Transport Authority, Chennai, for transfer of permit in respect of the abovesaid vehicle, from the name of Thiru. S. Sukumar, Proprietor, N. S. Road Lines in favour of Thiru. P. Sekar, Chennai and the affidavit of undertaking filed by Thiru. P. Sekar, in the year 2001, learned counsel for the petitioner submitted that the vehicle in question was in possession of the latter and therefore, as per the provisions of the Motor Vehicles Taxation Act, tax can be levied only from the owner of the vehicle and not from the Financier. He also submitted that as between the petitioner and Thiru. P. Sekar, transferor of the permit, Thiru. Sekar is liable to pay the tax and other dues to the government and not the Financier. 7. Pointing out the entries in the Certificate of Registration; showing Thiru. S. Sukumar as the Registered owner of the vehicle, learned counsel for the petitioner submitted that the demand raised, on the basis of the hire-purchase agreement, is liable to be set aside. In this context, he also relied on a decision of this Court in Sundaram Finance Limited, M/s. v. The R. T. O. Madurai reported in 1993 Writ LR 898. 8. Per contra, referring to the hire-purchase agreement and the entries in the records, Mr. C. Ramesh, learned Additional Government Pleader submitted that the financier would remain as the owner of the vehicle, until the amounts due under the hire-purchase agreement are paid by the hirer and therefore, the petitioner is liable to pay the tax for the period in dispute. He further submitted that the explanation of the petitioner has been duly considered, while passing the impugned order and for nonpayment of the Motor Vehicle Tax, the authorities are empowered to initiate proceedings under the provisions of the Revenue Recovery Act. Hence, prayed for dismissal of the Writ Petition. 9. Heard the learned counsel for the parties and perused the materials available on record. 10. The show cause notice, dated 6-11-2003, issued to the petitioner reads as follows :

"The All India Tourist Omni Bus TN 27 J 5400 belonging to Thiru. S. Sukumar/Salem, have valid permit up to 12-12-2005. Tax has been paid up to 30-6-2003 and the tax for the period from 1-7-2003 to 30-9-2003 was not paid till date. As per this office records, it is found that the vehicle TN 27 J 5400 was covered by valid hire-purchase agreement with you. As per Section 2(30) of the Motor Vehicles Act, 1988 "owner" means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or any agreement of hypothecation, the person in possession of the vehicle under the agreement. You are liable to pay the tax due with penalty of Rs. 2,16,000/- as stated below : @page-Mad99

Vehicle No. TN 27 J 5400 to 30-9-2003 1,08,000/-

Period Tax due Rs. 01-07-2003

Penalty Total Rs.

1,08,000/2,16,000/-

100%

Therefore, you are requested to explain as to why the tax due with penalty of Rs. 2,16,000/- as detailed above for the period from 1-7-2003 to 30-9-2003 shall not be collected under Section 8 of the T. N. M. V. Taxation Act, 1978 read with Section 88 of the T. N. M. V. Taxation Act, 1974, within a period of 10 days from the date of receipt of this memo, failing which, action will be taken to collect the arrears under the R. R. Act." 11. In response to the above, the petitioner in his explanation has stated that he is only a financier of the vehicle and not owner. The petitioner has further submitted that the vehicle was not in his custody and therefore, they are not liable to pay tax as per the demand. 12. Section 2(30) of the Motor Vehicles Act, defines the word "owner" and it reads as follows : "(30) "owner" means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hirepurchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement."

13. Though the name of the registered owner is shown as Thiru. S. Sukumar, Salem in the certificate of Registration in Form 23 of Rule 48 of the Tamil Nadu Motor Vehicles Rules and a joint application has been filed by Thiru. S. Sukumar, Proprietor, N. S. Roadlines, Salem and Thiru. P. Sekar, Madras for transfer of permit in respect of vehicle in question to the latter, the Regional Transport Authority, Salem has issued a show cause notice only to the Financier, viz., the petitioner. 14. Perusal of the show cause notice, does not indicate as to whether any steps were taken by the department to recover the tax and penalty from the hirer. When the vehicle was stated to have been used by the hirer, pursuant to an agreement, the respondent ought to have conducted an enquiry, as regards to the possession and taken steps to recover tax and penalty from the person, said to have used the vehicle on road. Even as per the definition of owner under the Motor Vehicles Act. In relation to a motor vehicle, which is the subject-matter of an hire-purchase agreement or an agreement of lease or an agreement of Hypothecation, the person in possession of the vehicle under that agreement is the owner of the vehicle. Though the petitioner has claimed to have submitted an explanation, denying their liability, the impugned order does not reflect examination of the same. 15. Let me now consider the judgment relied on by the learned counsel for the petitioner in Sundaram Finance Limited, M/s. v. The R. T. O., Madurai reported in 1993 Writ LR 898. The facts of the above reported case are that the petitioner, a hire-purchase financing company filed the Writ Petition seeking for a direction to the Regional Transport Officer therein, the 1st respondent, to issue a fresh Registration Certificate under S. 51(S) of the Motor Vehicles Act in relation to the vehicle, which the petitioner repossessed in exercise of his paramount right conferred under the hire purchase agreement. In order to claim exemption of motor vehicles tax and the permit tax, the petitioner therein had intimated the 1st respondent the fact of re-possession and also the stoppage of the vehicle. He had sent stoppage reports to the 1st respondent. The petitioner had filed Form No. 36, dated 19-3-1992 for cancellation of the Registration Certificate and for issue of a fresh Registration Certificate in the name of the petitioner company under S. 51(5) of the Act. It was further stated that the first respondent returned Form No. 36 to the petitioner and refused to accept the application for issue of fresh Registration Certificate on the ground that the petitioner had to pay composite tax. 16. It was contended on behalf of the 1st respondent that under Ss. 3, 4 and 8 of the Tamil Nadu Motor Vehicles Taxation Act, 1974, the permit holder was liable to pay tax for the vehicles used actually or kept for use factually, and in the case of non-use of the vehicles, it should be properly intimated in time and permission has to be obtained for the entire period of stoppage or otherwise, the liability to pay the tax rests with the permit holders/the possessor of the vehicle, as the case may be. It was also submitted by the State that the financier, being the successor of the vehicle, had not obtained @page-Mad100 any permission after submitting the prescribed applications with the payment of prescribed fee but only intimated the fact of re-possession of the vehicle and therefore, the financier had failed to fulfill the requirements of the law. After analysing the provisions of the Motor Vehicles Taxation Act, this Court at Paragraphs 22 and 23, held as follows :

"22. Though the petitioner is the owner of the vehicle under the hire-purchase transaction for the purpose of the Act, the hirer who has registered himself as registered owner under the Act is liable for all taxes payable with reference to the vehicle. He is the person who is in control and possession of the vehicle. The financier's rights are recognised under the Act. Prior to the present Act, the Motor Vehicles Act, 1939, was in force and S. 31-A of the old Act provides for the endorsement of the transaction of hire-purchase in the Registration Certificate and also entitlement of the financier to seek for a fresh Registration Certificate in the event of the registered owner (hirer) not surrendering his Registration for issue of a fresh Registration Certificate. The Act also recognises the right of repossession with reference to the vehicle which has the permit. Section 66(3)(o) of the Act provides that the financier is not necessarily to hold the permit to take the vehicle from place of repossession from the hirer to the place of garage. Therefore, the financier cannot be considered as a permit holder under the Act. The permit holder is a distinct expression used under the Act and the person in whose name the permit is given with reference to the vehicle is the permit holder. Whenever certain compliances are to be made by the permit holder, it is the person in whose name the permit was granted, who alone can comply with it. The said provision cannot be insisted upon the persons other than a permit holder. In the counteraffidavit, one of the contentions of the 1st respondent was, that no stoppage intimation is given under R. 172(6) of the Rules. From a perusal of the said Rule, it would be noticed that the said Rule is intended to be complied by the permit holder. There is no provision under the Act by which the financier could intimate to the Registering Authority of non use of the vehicle. Therefore, the manner of intimation in writing cannot be insisted upon in any particular for in the absence of such form not having been prescribed under the rules or under the Motor Vehicles Taxation Act or Rules framed thereunder. Therefore, the intimation made by the petitioner as the financier by writing letters to the Registering Authority about stoppage of the vehicle and complying with the requirement of non-use of the vehicle on the road, the petitioner is not liable to pay. tax when the vehicle is not used or put on road. 23. Section 2(30) of the Act defines 'owner' as a person in whose name a motor vehicle stands registered, and where such a person is a minor, the guardian of such and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement. Section 2(31) of the Act defines 'permit' means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle is a transport vehicle. Section 51(1) of the Act provides that where an application for registration of a motor vehicle which is held under a hire-purchase, lease or hypothecation agreement (hereafter in this Section referred to as the said agreement) is made, the registering authority shall make an entry in the certificate of registration regarding the existence of the said agreement." Ultimately, this Court in the above reported case held that the order of the Regional Transport Officer, Madurai, rejecting the application of the Financier, to issue a fresh Registration Certificate, as illegal and consequently, directed the respondents therein to issue fresh Registration Certificate to the Financier. 17. Though the above reported judgment is with reference to non-issuance of a fresh Registration Certificate to the Financier, who re-possessed the vehicle in terms of the hire-purchase agreement, having regard to the fact that the permit stood in the name of the hirer, this Court held that whenever

certain compliances have to be made by the permit holder, it is the person in whose name the permit was granted, alone can comply with it and that the provision cannot be insisted upon the persons other than a permit holder. Further, when Section 2(30) of the Motor Vehicles Act, clearly defines the word "owner" to mean the person in possession of the vehicle, pursuant to the hire-purchase agreement, tax cannot be demanded @page-Mad101 from the financier, who was neither the permit holder nor the user of the vehicle. There is nothing on record to indicate that the petitioner had re-possessed the vehicle, either from Thiru. S. Sukumar, Proprietor of N. S. Roadlines, or Thiru. S. Sekar, who become the subsequent hirer of the vehicle and used the vehicle during the validity of the permit. In the absence of any verification as to the possession of the vehicle and recording a finding to that effect, mulcting the liability on the financier to pay Motor Vehicles Tax and penalty for the period stated in the impugned order, is contrary to the statutory provisions and the judgment of this Court in Sundaram Finance Limited's case. 18. Therefore, in the light of the above decision and having regard to the facts of this case, the demand made to the petitioner to pay a sum of Rs. 1,62,050/- towards tax and penalty is liable to be set aside. Accordingly, the impugned order is set aside. The Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed. Petition allowed. AIR 2009 MADRAS 101 "RDS Project Ltd. v. Mariyu Abdul Azeez" MADRAS HIGH COURT Coram : 1 G. RAJASURIA, J. ( Single Bench ) M/s. RDS Project Ltd. v. Mariyu Abdul Azeez. C.R.P. (PD) Nos. 3282 and 3911 of 2008 and M.P. No. 1 of 2008, D/- 22 -1 -2009. Civil P.C. (5 of 1908), O.3, R.2 - CIVIL PROCEDURE - POWER OF ATTORNEY - WITNESS - Examination of power of attorney holder as witness - Suit for recovery of money - Power of attorney holder - Manager entered into transaction of supply of goods on behalf of plaintiff - Plaintiff residing abroad issued a power of attorney in favour of Manager to be examined as witness on her behalf - Also an authorisation letter given for identification purpose - As examination of plaintiff in person was not required, holder of power of attorney could be treated as witness examined on plaintiff's side. (Paras 9, 10, 11, 12) Cases Referred : Chronological Paras

2009 (2) AIR Bom R 296 9 AIR 2005 SC 439 : 2004 AIR SCW 7064 8

AIR 2001 SC 1158 : 2001 AIR SCW 841 : 2001 Cri LJ 1254 13

2000 AIHC 1572 (Bom) 8 2000 (1) Bom LR 908 AIR 1998 Raj 185 8 8

1986 (2) WLN 713 (Raj) 8 P. Arivudainambi, for Petitioner; S.R. Rajagopal, for Respondents. Judgement ORDER :- Animadverting upon the order dated 4-9-2007 made in I. A. No. 9434 of 2007 in O. S. No. 4928 of 2005 and the docket order dated 26-4-2007 made in O. S. No. 4928 of 2005 passed by the learned Assistant Judge, City Civil Court, Chennai. These civil revision petitions are focused. 2. Heard both sides. 3. Niggard and bereft of details, the relevant facts, which are absolutely necessary and germane for the disposal of these civil revision petitions would run thus : The respondent filed the suit O. S. No. 4928 of 2005 before the learned Assistant Judge, City Civil Court, Madras for recovery of money in connection with the supply of goods to the revision petitioner/defendant herein. During trial, on the side of the plaintiff, P. W. 1 by name B. Mohammeed Sameer filed Chief Examination affidavit; whereupon the defendant/revision petitioner objected for the said witness being examined, on the ground that the said witness had nothing to do with the case and he cannot be treated as a person being examined on behalf of the plaintiff. It was also the contention of the revision petitioner before the trial Court that the alleged Power of Attorney of the plaintiff and the alleged letter purported to have been executed by the Power of Attorney in favour of PW 1 cannot be taken as legal document or having any legal effect and by no stretch of imagination, PW 1 could be taken as a witness examined on behalf of the plaintiff. 4. I. A. No. 9434 of 2007 was filed by the revision petitioner/defendant under Section 151 of the Code of Civil Procedure to reject the proof affidavit filed by the said witness and also the marking of Exs. A2 to A10. The fact remains that earlier to the filing of I. A. No. 9434 of 2007, the trial Court passed the docket order dated 26-4-2007 rejecting the objection raised by the counsel for the defendant relating to the same issue. As such these two revisions have been focused animadverting upon the order passed by the trial Judge. 5. Whereas the learned counsel for the respondent/plaintiff would develop his argument to the effect that the plaintiff in this @page-Mad102 case, being a lady, filed the suit for recovery of money based on the supply of goods to the defendant and she executed the Power of Attorney in favour of her relative as she was abroad. The said Power of

Attorney executed the authorisation letter, which is referred to in the Chief Examination affidavit of PW 1, who happened to be the Manager of the plaintiffs firm; as such, absolutely there was no embargo for such PW 1 to be examined on the side of the plaintiff so as to prove the case of the plaintiff and that too, when as per the plaintiff, PW 1 had knowledge of the transaction with the defendant and that it was he who transacted with the defendant. 6. When all said and done, considering the pro et contra, in this factual matrix, I am of the opinion that certain legal points have to be clarified and that would solve the problem. 7. Before that I would like to cite the decisions cited on both the sides. 8. Learned counsel for the revision petitioner cited the decision of the Hon'ble Apex Court reported in 2005 (2) SCC 217 : (AIR 2005 SC 439) (Janki Vashdeo Bhojwani and another v. Indus Ind Bank Ltd. and others). Certain excerpts from it would run thus : 17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different Act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. 18. The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Narain (AIR 1998 Raj 185). It was held that the word "acts" used in Rule 2 of Order 3, C. P. C. does not include the act of power of attorney holder appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the Court, a commission for recording his evidence may be issued under the relevant provisions of C. P. C. 19. In the case of Pradeep Mohanbay (Dr.) v. Minguel Carlos Dias the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness. 20. However, in the case of Humberto Luis v. Floriano Armando, Luis (2000 AIHC 1572) (Bom) on which reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in Order 3, Rule 2, C. P. C. cannot be construed to disentitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word "act" appearing in Order 3, Rule 2, C. P. C. takes within its sweep "depose". We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (2000 AIHC 1572)." Placing reliance on the said precedent, he would develop his argument that on behalf of the plaintiff, even the Power of Attorney cannot be examined and for that matter the Power of Attorney cannot further delegate his power in favour of another, as it has been done in this case.

9. Whereas the learned counsel for the respondent/plaintiff placing reliance on the Full Bench decision of the Hon'ble Bombay High Court reported in 2008 (5) CTC 577 : (2009 (2) AIR Bom R 296) (Hemendra Rasiklal Ghia, etc. v. Subodh Mody, etc.) would develop his argument to the effect that a Chief Examination affidavit filed on the side of the party cannot be ordered to be eschewed. Certain excerpts from it. would run thus : "74. In the second category of the case, the objection should be taken when the evidence is tendered. Once the document has been admitted in evidence and marked as an exhibit, the objection that it should not be admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. This proposition is rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would enable the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The @page-Mad103 omission to object become fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly it enables the Court to apply its mind and pronounce its decision on the question of admissibility there and then; and secondly; in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence." and accordingly, he would further submit that in this case, the plaintiff thought it fit that the Manager of the firm PW 1 could be examined and for identification purpose, the authorisation letter was given in favour of PW 1 by the plaintiff's Power Agent and the same was also marked, overruling the objection of the defendant's side. Whereas the learned counsel for the revision petitioner/defendant would submit that such authorisation letter has not been marked yet and that it is not in record. 10. This Court being the revisional Court would like to observe that it is for the lower Court to consider as to whether, actually before it, the said authorisation letter is available or not and whether it has already been marked or not. Be that as it may, I would like to clarify that the said authorisation letter would have the effect of identifying the witness and it cannot be taken as one, which empowered PW 1 to depose on behalf of the plaintiff. The question arises as to whether, in this case, non-examining of the plaintiff in person is fatal. In fact, this is a larger issue, which the defendant is at liberty to raise even during trial and while cross-examining the witnesses on the plaintiffs side and also during arguments. It is for the Court to decide while disposing of the suit, the objection relating to the non-examination of the plaintiff in person.

11. Whereas the learned counsel for the respondent/plaintiff would highlight and spotlight the law point that the plaintiff being the dominus litis is bound to prove her case and it is not for the defendant to dictate terms; so far this case is concerned, examination of the plaintiff in person is not required and she would be able to face the argument as well as the objection of the defendant before the lower Court at the appropriate stage. 12. I would like to highlight, the gist and kernel of the proposition relating to examination of the plaintiff as a witness, when certain facts are exclusively within the knowledge of the plaintiff or a party to the lis and if such a party shuns the witness box, then only considering the fatality of the case of the person who shuns the box would arise and there are catena of decisions are also on that point. 13. As of now, the lower Court is concerned only with the evidence marshalled before it and it has to simply record it. The parties may raise various pleas both tenable and untenable at every stage and these pleas need not be adjudicated at once in view of the judgment reported in AIR 2001 SC 1158 (Bipin Shantilal Panchal v. State of Gujarat and another). An excerpt from it would run thus' : "13. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence-taking stage, would not be wasted on account of @page-Mad104 raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses." Both sides adhering to the decision cited supra, could very well put forth their case/ objections and the Court could record the respective objections reserving its power to adjudicate at the time of the disposal of the entire case. So far this case is concerned, I make it clear that irrespective of the claim of PW 1, PW 1 could only be treated as a witness examined on the plaintiffs side.

14. With the above finding, both the civil revision petitions are disposed of. No costs. Consequently, the connected miscellaneous petition is closed. 15. Learned counsel for the respondent/ plaintiff would make an extempore submission that certain time frame may be fixed for the disposal of the suit. Inasmuch as, it is only a suit for recovery of money, the lower Court is directed to dispose of the suit when a period of three months from the date of receipt of a copy of this order. Order accordingly. AIR 2009 MADRAS 104 "C. D. Varadarajan v. S. Mohan" MADRAS HIGH COURT Coram : 1 S. PALANIVELU, J. ( Single Bench ) C. D. Varadarajan v. S. Mohan and Anr. C.R.P. (PD) No. 4019 of 2007 and M. P. No. 1 of 2007, D/- 3 -2 -2009. (A) Civil P.C. (5 of 1908), O.6, R.17 - Limitation Act (36 of 1963), Art.59 - AMENDMENT - PLEADINGS LIMITATION - INJUNCTION - Amendment of plaint - Suit for injunction - Plaint not in accordance with provisions of O.7, R.3 as survey number and boundaries of suit property was not mentioned Amendment sought so as to adduce necessary particulars to clarify exact description of suit property Amendment sought after commencement of trial after a decade - Question of limitation would not arise - As no new cause of action has arisen also such amendment would not prejudice petitioner Amendment can be allowed. 2005 (4) CTC 664 : AIR 2005 (NOC) 627 (Mad); AIR 2008 SC 1960; AIR 1957 SC 357 and AIR 2003 SC 2284, Relied on. (Paras 24, 25) (B) Civil P.C. (5 of 1908), O.6, R.17 - AMENDMENT - PLEADINGS - INJUNCTION - Proviso - Amendment of plaint - Suit for injunction filed in year 1999 - Amendment sought after commencement of trial - Proviso to O.6, R.7 introduced in year 2002 - Since it has no retrospective effect - Shall not apply to suit filed in year 1999 - Amendment should be allowed. 2007(1) SCC 765; 2006 (1) Mad. LW 797, Rel. on. Cases Referred : Chronological Paras (Para 9)

AIR 2008 SC 1960 : 2008 AIR SCW 2265 (Rel. on) 18 AIR 2007 SC 1663 : 2007 AIR SCW 2545 : 2007 (2) AIR Jhar R 920 : 2007 (3) AIR Bom R 721 (2007) 1 SCC 765 (Rel. on) 11 17

AIR 2007 SC 2577 : 2007 AIR SCW 4583 : 2007 (5) AIR Bom R 183 22

2006 (1) Mad LW 797 (Rel. on) 11 2006 (5) CTC 475 (Mad) 14 2006 (5) CTC 580 (Mad) 15 AIR 2005 (NOC) 627 (Mad) : 2005 (4) CTC 664 (Rel. on) 13 2005 (5) CTC 619 (Mad) 19 AIR 2004 SC 4102 : 2004 AIR SCW 4522 23 AIR 2003 SC 2284 : 2003 AIR SCW 2250 (Rel. on) 20 AIR 2001 SC 699 : 2001 AIR SCW 342 AIR 1957 SC 357 (Rel. on) 19, 23 21, 23

R. Thiagarajan, for Petitioner; M.S. Subramaniam, for Respondents. Judgement ORDER :- The petitioner is defendant in O.S. No. 338 of 1999 on the file of the District Munsif Court, Chengalpattu. The respondent filed the suit for permanent injunction restraining the defendant from in any manner putting up construction in the specified area and for a mandatory direction to the defendant to demolish the already constructed wall and pillars in the suit property. After the commencement of trial i.e., while the suit was at part heard stage, the respondents/plaintiffs filed an application under Order 6, Rule 17 and under Section 151 of C.P.C to amend the plaint to introduce @page-Mad105 certain particulars in the Schedule as regards Survey Numbers. 2. (i) In the affidavit filed by these respondents it is alleged that while the first respondent was in the box, he was cross examined by the defendant's Counsel to the effect that the Survey Numbers of the house property purchased by him and his wife were not furnished in the plaint. If the Survey Numbers are given in the Schedule, it would be easy for determination. Hence, the amendment application may be allowed. 2. (ii) Particulars of Amendment : In the suit schedule of property add the following after the words "Gandhi Street (Old Mettu Street) Town Survey Number 772/2, 772/1 and 772/1A, 772/1E, and also in the plaint sketch attached in the Eastern side T.S. No. 772/2, on the West of that T.S. No. 772/1, now subdivided as 772/1B and on the Western side of the Sketch T.S. No. 772/ 1A, respectively, and in all I.As. wherever it is necessary. 3. In the Counter filed by this petitioner it is alleged that in the written statement the defendant has clearly mentioned in para 18, that the plaint schedule is not accordance with Order 7, Rule 3 of C.P.C.

and that the petitioner have not chosen to amend the plaint at that time and after P.W. 1 was fully cross examined, this petition has been filed. He himself had admitted during the course of cross examination that plaint schedule does not contain any Survey Number and boundaries. If the amendment petition is allowed, the admission aspects in the cross examination could be nullified and irreparable loss would be caused to the defendant. As per Order 6, Rule 17, C.P.C., the petitioner should show that he could not bring the amendment before the commencement of trial. The proposed amendment would change the nature of the suit. A new cause of action would arise. The petition is a belated one. Only to drag on the proceedings the petition is filed and the same is barred by limitation, as per Article 59 of the Limitation Act. Hence the petition has to be dismissed. 4. The learned District Munsif, allowed the application by observing that except the plea of "delay" there is no serious objection found in the Counter; the counter is not sustainable as the allegation in the counter is not acceptable as regards limitation, cause of action and nature of suit and that allowing application will not do any harm to the respondent/defendant. 5. In the plaint, the Schedule property has been described as, in Kancheepuram District, Chengalpattu Taluk, Firka, Town Gandhi Street (Old Mettu Street) Door No. 131, the Southern wall of the Plaintiff as shown in the Sketch (forming part of the plaint) as 'ABCDEF'. The suit property is not furnished with reference to Survey Numbers. Now the Survey Numbers in which the suit property is situated are sought to be introduced in the plaint schedule. 6. It is the contention of Mr. R. Thiagarajan, learned counsel for the petitioner that the amendment application has been filed after a long time that too in the part heard stage, after about a decade and the allowing of which would certainly prejudice the rights of the petitioners and hence it is not sustainable. 7. Conversely, Mr. M.S. Subramanian, learned counsel for the respondents would submit that the proposed amendment would not alter the nature and character of the suit that no new cause of action is introduced, that no fresh relief has been prayed for and only to clarify the description of the Schedule property, it is sought to be introduced and so it could be allowed. 8. Order 6, Rule 17 of the amended C.P.C. reads as follows : 17. Amendment of pleadings :- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties : Provided that no application for amendment shall be allowed after the trial has commenced unless the Court has come to the conclusion that in spite of the due diligence the party could not raise the matter before the commencement of trial." 9. As for the first part of the provision, the law permits a party to amend his pleadings which are essential for determining the real question in controversy between the parties and as far as this part is

concerned the Courts are to liberally approach the matter. In so far as the second part viz., the proviso to section is concerned, the trial Court shall not automatically or mechanically allow the amendment application when @page-Mad106 it is sought to be introduced after the commencement of trial and if the Court feels that it can be allowed, then it has to satisfy itself and furnish reasons as to the fact that the party, in spite of his due diligence, could not raise the matter anterior to the commencement of the trial. It is mandatory on the part of the Court while allowing the post-trial amendments to record the reasons as regards its satisfaction to the said aspect. 10. Another feature available in this case is that the proposed amendment is prayed to be included in a suit which filed in the year 1999 earlier to the passing of the amendment Act i.e., Act 22 of 2002 viz., Code of Civil Procedure (Amendment) Act, 2002, that came to effect on 01.07.2002 in which Section 16 (i)(b) specifically provides for non-application of the amending Act to the pending proceedings and it has been categorically provided that the amended Act shall not apply in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of the present Act. In other words, it can be stated that the amended provision, containing proviso to Order 6, Rule 17, has no retrospective effect and it would take effect from 01.07.2002, for the suits or proceedings which were instituted after 01.07.2002. In case if the case was pending prior to amending Act, request for amendment to the pleadings would not be permitted forbidden, the strict rule contained in the proviso to Rule 17, Order 6 C.P.C., could not be made applicable. 11. The Supreme Court in 2007 (1) SCC 765 [State Bank of Hyderabad v. Town Municipal Council] has held that in view of the abovesaid provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998 proviso to Order 6, Rule 17 shall not apply. This Court has also taken an identical view in 2006 (1) L.W. 797 [Ellen v. P.L. Chockalingam ]. 12. As the present suit was filed in the year 1999, the proviso annexed to Rule 17 of Order 6, C.P.C. is not applicable to the present prayer for amendment and no duty is cast upon the Court to record the reasons as to the aspect that the plaintiff in spite of his due diligence could not make the amendment prior to the commencement of the trial. 13. Learned counsel for the Petitioners draws attention of this Court to a decision of this Court in 2005 (4) CTC 664 : (AIR 2005 (NOC) 627) [Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam v. Udumalpet Samayapuram Ayira Vaisya Sangam] in which certain principles have been formulated on the strength of the decisions on this subject. Neither a new case nor a new cause of action should be set up, that the parties not entitled to rely on the statute of limitation, if the amendment is subject to law of limitation, if the cause of action is not going to be changed and that no amendment shall be allowed to introduce new set of ideas to the prejudice of any right by any party accrued to him by lapse of time.

14. In 2006 (5) CTC 475 [Kodiammal v. Sarangapani] it is held that when the proposed amendment does not alter nature and character of suit to bring in new cause of action, Courts ought to be liberal in granting amendment for effective adjudication. 15. In the case of Kaliathal v. Murugathal and other reported in 2006 (5) CTC 580 this Court has observed that the amendment may be allowed which would avoid multiplicity of proceedings by filing another suit for such relief. 16. A Full Bench of this Court has elaborately discussed the issue on allowing of amendment applications under Order 6, Rule 17, on the strength of various Judgment of this Court and Supreme Court and formulated the following principles :12.00. Result : In the result, the reference is answered holding : (1) that the delay in filing the Application for amendment of the pleadings is not fatal when no serious prejudice is shown to have caused to the opposite party so as to take away any accrued right and the court should take notice of the subsequent events in order to shorten the litigation to preserve and safeguard the rights of both the parties and to subserve the ends of justice and while doing so, the Court was not justified in allowing or disallowing the amendments so as to defeat the valuable rights of the parties and amendments of pleadings should be allowed which are necessary for determination of the real controversy in the suit and while doing so, the Court should not go into the correctness or falsity of the main case and it should not record the finding on the merits of the amendment as it should be done only during the trial of the Suit. @page-Mad107 (2) According to the 'proviso to sub-section (2) of the Section 40 of the Specific Relief Act, the Court has no option except to allow the amendment' for adding a prayer for damages. This being the provision of law, the same should be allowed. (3) the Proviso to Order 6, Rule 17 of Act 22 of 2002 is applicable to the pleadings instituted with effect from 1.7.2002 and not to the pleadings instituted prior to 1.7.2002 and while considering the proviso to Order 6, Rule 17, the Court has to examine in detail and commencement of trial must be understood as final hearing of the suit i.e., examination of witnesses, filing of documents , addressing of arguments, etc., and the Court should not forget its unfettered discretion to allow the amendment after applying itself the judicial discretion, if there is no negligence on the part of the party." 17. In 2007 (3) CTC 400 : (AIR 2007 SC 1663) [Usha Balashaheb Swami and others v. Kiran Apparao Swami and Others] the Apex Court has held that the Courts should be liberal in granting prayer for amendment of pleadings unless serious injustice or irreparable loss caused to the other side or on the ground that the prayer for amendment was not a bona fide one.

18. In 2008 (2) CTC 224 : (AIR 2008 SC 1960) [Puran Ram v. Bhaguram and Another] the Supreme Court has laid down a principle that no question of limitation shall arise when mis-description of the name of original plaintiff or mis-description of the suit property arose in a particular case. As per the Supreme Court if there is mis-description in the pleadings and if it is to be amended by the parties concerned, no question of limitation would arise in this regard. 19. Learned counsel for the petitioner also placed reliance upon the decision of this Court in 2005 (5) CTC 619 [Rameeza Beevi and others v. S. Mohammed Ibrahim] in which it is held that on the strength of the Supreme Court decision in AIR 1957 SC 357 [L.J. Leach and Co. Ltd., and another v. Messrs. Jardine Skinner and Co.,] the Courts should decline to allow amendments, if fresh suit on the amended claim would be barred by limitation, that the amendment could be ordinarily permitted, if the same is not barred by limitation on the date of amendment application, or the amendment could be allowed, if there is any doubt, regarding the question of limitation, postponing the same, to be canvassed, at the final stage. 20. The Supreme Court in 2003 (2) CTC 437 : 2003 (6) SCC 79 : (AIR 2003 SC 2284) [Punjab National Bank v. Indian Bank and another] has decided that even though the amendment application was filed in a belated stage, despite the proposed claim was barred by limitation, the same should be allowed subject to the question of limitation and it is to be decided at a later point of time. 21. Identical view was taken in AIR 2001 SC 699 [Ragu Thilak D. John v. S. Rayappan and others] in which it is held that the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayer for. 22. Learned counsel for the respondents would garner support from a decision of the Supreme Court 2007 (6) SCC 737 : (AIR 2007 SC 2577) [Ramachandra Sakharam Mahajan v. Damodar Trimbak Tanksale (dead) and others] the appellate Court ought to have seen that the trial Court was in error in refusing the amendment of the plaint which would have enabled the Court to render a decision in a more satisfactory manner. It is also held therein that since the proposed amendment would enable the Court to pinpointedly consider the real issue between the parties and to render a decision more satisfactorily to its conscience, the amendment ought to have been allowed. 23. In 2004 (6) SCC 415 : (AIR 2004 SC 4102) [Pankaja and another v. Yellappa (dead) by LRs. and others] the Supreme Court has followed the Judgment in Ragu Thilak D. John's case (supra) directing the trial Court to frame necessary issue on the points of limitation to decide the same in accordance with law bearing in mind the law laid down by the Apex Court in L.J. Leach and Co. Ltd., (supra) 24. Adverting to the facts of the present case, it is clear that the amendment is for exact identification of the property with reference to Survey Numbers. It is worth mentioning that the identity of the property is not at all disputed in the written statement. It has been pleaded therein that as per Order 7, Rule 3 of C.P.C. necessary particulars are significantly absent in the Schedule with 'reference to town survey number and hence the suit is liable to be dismissed. Even though the amendment is being brought @page-Mad108

after the commencement of the trial, it is to the effect of clarifying the description of property and making the particulars in the schedule in an explaining manner properly, this Court is of the considered opinion that no question of limitation would arise. Allowing of the application would in no way prejudice the rights of the petitioner. It is also added that it could not be stated that the petitioner has accrued any right with the mis-description of the property and by means of incorporation of the amendment their rights would be affected. 25. It is obvious that there could be no change in the nature of the suit, no alteration in the nature, character and the cause of action of the suit. There could also be no possibility for different cause of action to creep in. Following the principles laid down by the Apex Court and this Court on this issue, it is held that the amendment sought for in the present case by the respondent deserves to be allowed by means of which no hardship would be caused to the petitioners and they have got every opportunity to file additional written statement containing objections to the amendments. In such view of this matter, this Court does not find any illegality of infirmity in the order passed by the Court below which deserves to be confirmed and accordingly, confirmed. In fine the Civil Revision Petition is dismissed. No costs. Consequently, Connected Miscellaneous Petition is also dismissed. Petition dismissed. AIR 2009 MADRAS 108 "Arya Vysys Samajam v. R. Murali" MADRAS HIGH COURT Coram : 1 G. RAJASURIA, J. ( Single Bench ) Arya Vysys Samajam and Ors. v. R. Murali and Anr. C.R.P. (PD) 3193 of 2008 and M.P. No. 1 of 2008, D/- 20 -1 -2009. Civil P.C. (5 of 1908), O.18, R.3A - WITNESS - AFFIDAVIT - Plaintiff to appear as his own witness Application for at stage when matter was posted for arguments - No permission sought under O.18, R.3A - Affidavit of plaintiff bereft of any detail - No ground made out by plaintiff to get himself examined at such a belated stage - His attempt would ex-facie and prima facie prejudice defendants - Application cannot be allowed. (Paras 5, 6, 7)

P. Mani, for Petitioners. Judgement ORDER :- Anim-adverting upon the order dated 19.6.2008 passed in I.A. No. 392 of 2008 in O.S. No. 251 of 2005 by the District Munsif Court, Krishnagiri.

2. The epitome and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of the revision petition, would run thus : The respondent, as plaintiff, filed the suit O.S. No. 251 of 2005 on the file of the District Munsif, Krishnagiri, seeking the following reliefs : "a. to declare the title of the plaintiff into the suit property b. to grant permanent injunction restraining the defendants 1 to 4 and their men from in any manner trespassing into the suit property or occupying the same or putting up any construction thereon or creating any documents in respect of the same; c. to grant permanent injunction restraining the 5th defendant from registering any document that be presented by defendants 1 to 4 or others, other than plaintiff, for registration; d. to direct the defendants 1 to 4 to pay costs of suit; and e. to grant such other relief or reliefs as this Honourable Court may deem fit and proper in the circumstances of the case. Whereupon the petitioners/defendants herein filed written statement. Full-fledged trial was conducted and both sides adduced evidence also and the matter was posted for arguments, admittedly. At that stage, the respondent/plaintiff filed application LA. No. 392 of 2008 seeking permission of the Court to permit him to be examined as witness on his side, as only his Power of Attorney was examined earlier as P.W. 1 and at the relevant time, the plaintiff was in Muscat. Despite objection filed by the revision petitioners/defendants, the lower Court allowed it. Being aggrieved by and dissatisfied with the said order, the present revision petition is focussed on various grounds. 3. The learned counsel for the revision petitioners/defendants would appropriately and appositely, correctly and convincingly put forth his argument to the effect that absolutely there is no reason found set out or exemplified in the affidavit for getting the respondent/plaintiff examined as one of the witnesses on his side and that too, at the belated stage of the case; purely for the purpose @page-Mad109 pose of filling up the lacuna, such an application was filed and the trial Court simply allowed it. 4. Perused the records. 5. Indubitably and incontrovertibly, unassailably and apparently it is clear that the matter was posted for arguments. The said suit itself was filed by the respondent/ plaintiff through his Power of Attorney who examined himself as a, witness. No permission was sought for from the Court for getting the respondent/plaintiff examined at a later stage, as per Order 18, Rule 3-A of C.P.C. However, the lower Court simply remarking that Order 18, Rule 3-A is not mandatory and it is only recommendatory, allowed the application. The said approach of the lower Court is far from satisfactory for the reason that

the affidavit is vague as vagueness could be and it is bereft of details. It is just and necessary to extract here under the relevant portion of the affidavit for ready reference: "2. I further submit that the above case is posted for arguments. The petitioner was in Muscat and that he could be examined as a witness on the side of the plaintiff. He wants to depose as a witness, with regard to some important aspects, and that the evidence on the side of the plaintiff is to be reopened. Otherwise the petitioner will be seriously prejudiced." 6. A bare perusal of it would reveal that the aforesaid averments are bald as baldness could be and that can by no stretch of imagination could be taken as proper ground, much less sufficient ground for the purpose of the respondent/plaintiff getting himself examined at such a belated stage of the case. It is a common or garden principle of law that after the closing of evidence on the defendants' side, if the plaintiff's side is opened and that too for examining certain important witness like the party to the case, certainly, the Court should look for sound reasons. But, in this case, absolutely there is no morsel or iota, shard or shred of reason found set out, justifying the prayer of the respondent/plaintiff. 7. In these circumstances, I am of the view that the lower Court exercised its discretion erroneously and improperly, causing prejudice to the petitioners/defendants. The remark of the lower Court that no prejudice would be caused to the petitioners/defendants is neither here nor there. The very attempt on the part of the respondent/plaintiff to examine himself when the matter has been posted for argument itself would ex facie and prima facie prejudice the petitioners/defendants and separately, the petitioners/defendants are not expected to detail and delineate as to what are all the prejudice that have been caused to them. Hence, in these circumstances, the order of the lower Court, dated 19.6.2006 passed in I.A. No. 392 of 2008 is set aside and the C.R.P. is allowed. 8. In the result, the revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed. Petition allowed. AIR 2009 MADRAS 109 "C. Krishnamoorthy v. B. Jamuna Rani" MADRAS HIGH COURT Coram : 1 G. RAJASURIA, J. ( Single Bench ) C. Krishnamoorthy v. B. Jamuna Rani. C. R. P. PD 2651 of 2008 and M.P. No. 1 of 2008, D/- 19 -1 -2009. Hindu Marriage Act (25 of 1955), S.24 - MAINTENANCE - Interim maintenance - Disposable income of husband assessed to be Rs. 10,739/- - Inclusive of Rs. 2405/- as take home salary and Rs. 3562/contributed by husband towards repayment of loan - Amount by which loan is repaid not liable to be deducted - Only statutory deductions permissible - Maintenance of Rs. 1500/- p.m. as awarded to wife, not excessive. (Para 6)

S. Natana Rajan, for Petitioner. Judgement ORDER :- Anim-adverting upon the order dated 3.6.2008 passed in I.A. No. 1996 of 2006 in O.P.No.2680 of 2005 by the I Additional Judge, Family Court, Chennai, this revision petition is filed. 2. The nutshell facts, which are absolutely necessary and germane for the disposal of this revision petition would run thus : The revision petitioner is the husband and the respondent is his wife. The former filed FCOP No. 2680 of 2005 before the First Additional Judge, Family Court, Chennai, for divorce. During the pendency of the said O.P., the wife filed I.A. No. 1996 of 2006 seeking interim maintenance, by invoking Section 24 of the Hindu Marriage Act. The trial Court awarded interim maintenance of Rs. 1500/- per month from the date of I.A. @page-Mad110 Being aggrieved by and dissatisfied with the said order, this revision petition is focussed by the husband on various grounds : 3. The learned counsel for the revision petitioner would develop his argument to the effect that the lower Court was not justified in awarding a sum of Rs. 1500/- per month by ignoring the deductions effected from the salary of the petitioner/husband. 4. A bare perusal of the order of the lower Court would indicate and exemplify that the petitioner/husband, as on the date of filing of the I.A. for interim maintenance by the wife, was receiving a monthly salary of Rs. 10,739/-. The contention of the petitioner/husband was that his take home salary was only Rs. 2,405/- and he could not pay maintenance as claimed by his wife. Whereas, the Court felt that a sum of Rs. 3,562/- which the petitioner/husband was contributing towards Thrift Society should not be excluded from calculating his disposable income. 5. The learned counsel for the revision petitioner/husband would try to torpedo such a view by pointing out that when the petitioner/husband was not in receipt of such a sum of Rs. 3,562/-, the lower Court was not justified in including the said amount in his disposable income. 6. I could see no infirmity in the order of the lower Court. Simply because the husband had incurred some loans from certain societies and repaying the same it cannot be held that those amounts should not be treated as earnings for the purpose of awarding maintenance. Only statutory deductions could be excluded from assessing the disposable income of the husband. In this case the lower Court correctly has taken into account the sum of Rs. 3,562/- along with the take home salary of Rs. 2,405/- and ultimately assessed the disposable income of the husband and awarded the maintenance of Rs. 1,500/per month, which by any standard, cannot be stated to be exorbitant and excessive; in fact, it comes to,

only awarding a sum of Rs. 50/- per day to a lady, who is entitled to live incommensurate with the status of her husband, who at that time was a clerk in the Civil Supplies Department. Hence, no interference with the order of the lower Court is warranted. 7. The learned counsel for the revision petitioner/husband would make an extempore submission that there is a criminal revision pending against the order of maintenance award, under Section 125 of Cr.P.C. by the Magistrate concerned and this Court, in the interim order directed the revision petitioner herein to pay a sum of Rs. 750/-per month to the respondent/wife and there should not be double payment. 8. In view of the above, it is made clear that the sum of Rs. 1,500/- per month awarded by the Family Court shall be inclusive of the sum of Rs. 750/-per month as directed to be paid by the husband to the wife. Accordingly, the arrears should be calculated and payment should be made. 9. The learned counsel for the revision petitioner would highlight that the lower Court was not justified in awarding cost of Rs. 3000/- payable by the husband to the wife to meet the litigation expenses and by any standard it is excessive. 10. I am of the view that taking into account the present day cost of litigation, such awarding of Rs. 3000/- payable by the husband to the wife cannot be termed as an excessive one and no interference under that count also is warranted. In the result, the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed. Petition dismissed. AIR 2009 MADRAS 110 "R. Palanisubramanian v. Trans Medica (India) Ltd." MADRAS HIGH COURT Coram : 1 M. JEYAPAUL, J. ( Single Bench ) R. Palanisubramanian v. M/s. Trans Medica (India) Ltd. and Anr. O.A. Nos. 936 and 937 of 2008 in C.S. No. 811 of 2008, D/- 6 -2 -2009. (A) Registration Act (16 of 1908), S.17(1-A) - Civil P.C. (5 of 1908), O.39, R.1, R.2 - Transfer of Property Act (4 of 1882), S.53A - DOCUMENTS - INJUNCTION - CONTRACT - AGREEMENT - Registration of sale agreement - Whether mandatory for seeking injunction - Applicant sought injunction on ground that he had purchased suit property and paid part consideration - Unregistered sale deed showing delivery of possession to applicant on payment of 85% sale consideration - Reliability - Had the applicant sought benefit of part performance u/S.53-A of Transfer of Property Act registration of sale deed would have been mandatory - Since no such benefit is claimed, unregistered sale deed can be relied upon by Court in an injunction application. (Paras 10, 11)

@page-Mad111 (B) Civil P.C. (5 of 1908), O.39, R.1, R.2 - INJUNCTION - SALE DEED - DEED - Interim injunction Restraining respondent from interfering with possession and alienating suit property - Entitlement to Sale deed impugned by respondent speaks about handing over of title deed to applicant along with memorandum of articles of association and other connected documents of respondent - No explanation by respondent as to how these documents landed in custody of applicant - Moreover signature of respondent on sale agreement is almost similar to his signature on vakalatnama - Slight difference therein may be deliberate attempt of respondent - Voluminous evidence of applicant prima facie establish purchase of suit property by him on payment of part consideration - Balance of convenience lies only in favour of applicant who is entitled to injunction. (Paras 15, 18, 19)

P. Shivakumar, for Applicant; C. Uma Shankar, for Opposite parties. Judgement ORDER :- These applications are filed seeking interim injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the suit property by the applicant/tenant of the applicant and also from alienating the suit property to third parties. 2. The applicant would contend that he had entered into an agreement of sale dated 29.9.2005 with the first respondent who was the owner of the flat bearing door No. 20, Vasan Street, T. Nagar, Chennai. The sale consideration was fixed at Rs. 12,00,000/-. A sum of Rs. 10,00,000/- was paid as sale advance by the applicant to the first respondent so as to enable the first respondent to obtain the original title deeds of the suit property from Indian Overseas Bank by clearing the equitable mortgage by them. The first respondent also put the applicant in possession of the property. The agreement also permits the applicant either to use the property for his own purpose or to lease out the same to any third party. In July 2007, the applicant leased out the suit property to one Dr. V. Ramakrishnan. He has been in possession and enjoyment of the same as a tenant. There was an attempt on 7.5.2008 to dispossess the tenant from the suit property. The applicant made enquiries and came to know that the first respondent had sold the suit property to the second respondent on 11.4.2008, completely suppressing the subsistence of the sale agreement with the applicant. The applicant has already paid 85% of the sale consideration and he has always been ready and willing to pay the balance sale consideration. After the sale of the suit property by the first respondent to the second respondent, the respondents are making attempts to dispossess the tenant inducted by the applicant in the suit property. They are also planning to alienate the suit property in favour of third party with a view to create further third party interest in the suit property. Hence, the reliefs as sought for. 3. In the common counter filed by the first respondent on behalf of both the respondents, it is contended that the first respondent, who is a Public Limited Company was the owner of the suit property. The first respondent was in absolute possession and enjoyment of the property till 11.4.2008. When the same was sold to the second respondent, the first respondent Company delivered vacant

possession of the suit property to the second respondent on the date of sale. No agreement for sale was entered into between the applicant and the first respondent Company on 29.9.2005. The advance sale consideration of Rs. 10,00,000/- was not received by the first respondent from the applicant. The question of dispossessing the alleged tenant through rowdy elements on 7.5.2008 did not arise as the possession of the property was given by the first respondent to the second respondent on 11.4.2008 itself. The applicant is making attempts to obtain an order from this court by creating fabricated documents. The suit in O.S. No. 3332 of 2008 on the file of the XI Assistant Judge, City Civil Court, Chennai was filed by Dr. V. Ramakrishnan claiming to be the tenant of the applicant. I.A. No. 8107 of 2008 seeking ad interim injunction was dismissed on 16.6.2008 after hearing both the parties. Therefore, the respondents pray that the present applications may be dismissed. 4. Learned counsel appearing for the applicant would vehemently submit that the first respondent, who received a hefty advance of sale consideration and delivered vacant possession to the applicant has now backed out and executed sale deed in favour of the second respondent. As the possession was already delivered to the applicant by the first respondent and the applicant @page-Mad112 has produced documents to show that he is in possession of the suit property through his tenant, the respondent will have to be restrained from interfering with the peaceful possession and enjoyment of the suit property and they shall also be restrained from alienating the suit property to any third party. Referring to various documents produced on the side of the applicant, the learned counsel appearing for the applicant would further submit that the execution of the agreement for sale, delivery of possession to the applicant by the first respondent and the possession of the suit property in the hands of the tenant of the applicant stood established before this court. Therefore, he would submit that the applicants are entitled to the relief sought for. 5. Learned counsel appearing for the respondents would contend that the tenant set up by the applicant failed to convince the City Civil Court in an application moved by him seeking interim order of injunction restraining the respondents from interfering with his possession. Of course, the order passed by the learned XI Assistant Judge, City Civil Court, Chennai is under challenge before the appellate forum. The agreement for sale has been fabricated. Further, the agreement for sale which contemplates delivery of possession shall be registered under section 17(1-A) of the Registration Act. The unregistered agreement which contemplates delivery of possession cannot be looked into by this court. A Public Limited Company is not supposed to receive cash from a third party. Therefore, he would submit that the applications deserve dismissal. 6. The applicant has produced the agreement for sale dated 29.9.2005 entered into between the applicant and the first respondent. Of course, the execution of the said agreement is under serious challenge by the first respondent. On a perusal of the aforesaid document, it is found that there is a specific clause which refers to the equitable mortgage already created by the first respondent company. It also speaks about the handing over of certified copies of the title deeds along with Memorandum of Articles of Association and other connected documents of the first respondent. Creation of equitable

mortgage of the suit property by the first respondent Company would be in its exclusive knowledge. It is found that the agreement for sale refers specifically the equitable mortgage created by the first respondent on the subject property. 7. The applicant cannot have possession of the certified copies of the title deeds relating to the suit property and the Memorandum and Articles of Association of the first respondent unless those documents were handed over by the first respondent. Those documents specifically referred to in the agreement for sale have been produced for perusal before this court by the applicant. No explanation has been given by the first respondent as to how those documents landed in the custody of the applicant. 8. Of course, there is a clause found in the agreement for sale that the possession of the subject property was delivered to the applicant and the same can be used by the applicant or the same can be leased out to any third party. 9. Section 53A of the Transfer of Property Act, 1882 would read that where a person agrees to transfer for consideration any immovable property in writing signed by him, the owner of the property or any person claiming under him is debarred from claiming against the agreement holder any right in respect of the property, in case the latter, in part performance of the contract, has taken possession of the property. Of course, the said provision shall not affect the right of a transferee for consideration who has no notice of the contract or of the part performance thereof. As per section 17(1-A) of the Registration Act, an agreement for sale relating to any immovable property, for reaping the benefits of section 53A of the Transfer of Property Act, 1882, shall be registered. In other words, an intending purchaser, who enters into an agreement for sale with the owner of the property and got delivery of possession of the property, cannot claim the benefits under section 53A of the Transfer of Property Act unless the deed of agreement for sale which contemplates such delivery of possession is registered. 10. The applicant has not even vaguely referred to the statutory right conferred on the prospective purchaser who has been put in possession of the property by virtue of an agreement for sale under section 53A of the Transfer of Property Act, 1882. He simply says that he has been put in possession of the property by virtue of agreement for sale and the said possession, now being enjoyed through his tenant, has to be protected. It is not as if all the agreements for sale referring to the instance of delivery of posses @page-Mad113 shall be compulsorily registered under section 17(1-A) of the Registration Act. Only when an agreement for sale as such speaks about delivery of possession is filed to claim the benefit of the concept of "part performance" as contemplated under section 53A of the Transfer of Property Act, the court will have to find whether the document was registered or not. If such a document was not registered, then, the benefit of section 53A of the Transfer of Property Act cannot be claimed by the prospective purchaser of the property.

11. In the instant case, the applicant has not set up his claim on the ground of part performance as contemplated under section 53A of the Transfer of Property Act. Therefore, there is no legal embargo to rely upon the unregistered agreement for sale which specifically speaks about the delivery of possession of the property to the prospective purchaser. 12. Coming to the forgery alleged against the applicant, the court finds that there is a similarity in the signature found in the agreement for sale and the signature found in the vakalat and counter-affidavit filed by the first respondent. Of course, there is some difference in the later part of the strokes of the signature found in the disputed documents and the admitted signature found in the vakalat and counter-affidavit. Here is a case where the first respondent comes forward with a case that he has not put his signature in the disputed document. The parties are at loggerheads for sometime even prior to the suit laid by the applicant. Therefore, there is every possibility for the first respondent to put his signature in the vakalat and counter-affidavit in a slightly different fashion. The admitted signature of the first respondent found in any other document which came into existence during the regular course of transaction prior to the execution of the disputed agreement for sale will have to be considered for comparing the disputed signature found in the agreement for sale entered into between the applicant and the first respondent. No such document was produced by the first respondent to compare his admitted signature with the disputed signature found in the agreement for sale. On mere oral assertion of the first respondent, the court cannot jump to a conclusion that the signature found in the disputed document is a forged version of the signature of the first respondent. Therefore, at the stage of disposing of these applications, the court is not inclined to accept the plea of the first respondent that the agreement for sale was forged by the applicant. 13. Of course, a Public Limited Company is not supposed to receive a lumpsum in cash from a third party. But, that does not imply that there was no payment made by the applicant to the first respondent at the time of execution of agreement for sale. For very many reasons, a person who represents a Public Limited Company may receive consideration by cash from an innocent intending purchaser. Just because money dealings in lumpsum cash is not encouraged in the transactions clinched by the Public Limited Company, the plea of the applicant that there was money transaction by cash cannot be completely thrown away. 14. It is true that the tenant of the applicant could not convince the learned XI Assistant Judge, City Civil Court, Chennai while seeking an order of interim injunction as against the respondents herein, but, it is to be noted that such an order passed by the XI Assistant Judge, City Civil Court, Madras is now under challenge before the appellate forum. Further, filing of a suit by a tenant to protect his possession does not debar the agreement holder to file a separate suit to protect his interest in the suit property. 15. Coming to the documents produced on the side of the applicant, it is found that the applicant has submitted for perusal the certified copy of the sale deed in favour of the first respondent, the Memorandum of Articles of Association of the first respondent, certificate of change of name of the first respondent-Company and the list of Directors of the first respondent to establish prima facie that those documents were parted with by the first respondent at the time when the agreement for sale was clinched. As already pointed out by this court, these documents would not have landed in the custody of

the applicant unless there was really some deal between the applicant and the first respondent. Further, there is a specific reference as to the handing over of those documents by the first respondent to the applicant in the agreement for sale. 16. The applicant also has produced a deed of lease executed by the applicant in favour of Dr.V.Ramakrishnan. Normally, an agreement holder, though put in possession @page-Mad114 of the property, would not venture to lease out the premises till he completes the sale transaction. But, in the instant case, there is a specific clause found in the agreement for sale that the applicant is at liberty to lease out the property to any third party. In the background of the clause found in the agreement for sale, the lease transaction between the applicant and his tenant will have to be decided by the court. 17. The applicant also has produced rental receipts to show prima facie the payment of rents by the tenant to him. It is also found that the applicant could produce electricity card and the electricity bill paid by him. Telephone bills also have been paid by the tenant in possession of the property. Immediately after the sale by the first respondent to the second respondent, the applicant has complained to the Inspector of Police, Pondy Bazaar Police Station and also the Deputy Commissioner of Police alleging an attempt of forcible dispossession at the hands of the respondent. 18. The aforesaid documents would prima facie establish that the applicant, who entered into an agreement for sale with the first respondent, paid 85% of the sale consideration and was also put in possession of the suit property. It has also been established prima facie that the applicant is in possession of the suit property through his tenant Dr.V.Ramakrishnan. No document was filed to reject the voluminous evidence produced on the side of the applicant to establish delivery of possession and also continuous possession of the property from the date of agreement for sale entered into between the applicant and the first respondent. 19. Triable issues as to whether there was an agreement for sale entered into between the applicant and the first respondent and also whether there was delivery of possession on the date of agreement of sale have been made out by the applicant. If the respondents are not restrained from interfering with the peaceful possession and enjoyment of the property by the applicant through his tenant, the applicant and his tenant would face much hardship. The balance of convenience is, therefore, only in favour of the applicant. Further, any alienation that may be made by the second respondent would invite multiplicity of proceedings and the right claimed by the applicant under the agreement for sale and delivery of possession would be the casualty. Therefore, the respondents and their agents are restrained from interfering with the peaceful possession and enjoyment of the property by the applicant through his tenant Dr.V.Ramakrishnan and they are also restrained from alienating or encumbering the suit schedule property in favour of any third party. 20. In the result, both the applications stand allowed. There is no order as to costs.

Application allowed. AIR 2009 MADRAS 114 "P. Baskaran v. Ayyakannu Chettiar" MADRAS HIGH COURT (MADURAI BENCH) Coram : 1 S. PALANIVELU, J. ( Single Bench ) P. Baskaran v. Ayyakannu Chettiar and Ors. C.R.P. (NPD)(MD) No. 1986 of 2008 and M.P. (MD) 1 of 2008, D/- 22 -12 -2008. Civil P.C. (5 of 1908), O.5, R.20 - SUMMONS - Substituted service - Recording of reasons for satisfaction Not mandatory - No duty is cast upon Court to explicitly express its 'satisfaction' as contemplated in R.20 - Drafting of R.20 does not reveal any such intention of Legislature - Satisfaction under R.20 may be implicit. (Paras 26, 28, 29) Cases Referred : Chronological Paras 20

AIR 2007 (NOC) 1809 (Mad) 2006 CDJ 1025 (Mad) 17

AIR 2005 SC 3460 : 2005 AIR SCW 4603 30 AIR 2005 SC 3575 : 2005 AIR SCW 4593 14 AIR 2004 All 391 : 2004 All LJ 3639 AIR 1999 MP 21 19 AIR 1989 PunjHar 319 20 AIR 1984 Cal 82 18 AIR 1970 Mad 271 (FB) 12 AIR 1967 Pat 280 23 18

S. Ramesh alias Ramaiah, for Petitioner; S. Manohar, for Respondents. Judgement ORDER :- The petitioner is the eighth respondent in E.P.No. 153 of 1982 in O.S.No. 379 of 1954 on the file of the First Additional District Munsif, Madurai Town. On 05.04.2002, he was set ex parte by the executing Court and he filed an application within 30 days from the date of his knowledge on 28.02.2008. On the said date, the 4th respondent, one among the decree-holders came to his house and

informed, him that she obtained an ex parte order against him and she was proceeding with the execution @page-Mad115 proceedings to take delivery of the property and thereafter alone, he came to know that an ex parte order was passed on 05.04.2002. Since the petition has been filed within one month from the date of his knowledge, the petition may be allowed. 2. In the counter filed by the respondents 21 to 25 in E.A.No.153 of 2008 it is alleged that already these respondents have obtained delivery order in the execution proceedings and in order to protract the matter, this petition has been filed with false allegations and that it is incorrect to state that the 4th respondent informed him about the ex parte order passed on 28.02.2008. 3(i). The averments found in the counter of the 12th respondent in E.A.No.153 of 2008 go to the effect that originally, O.S.No. 379 of 1954 was filed for redemption of mortgage. This petitioner and other were in possession of the property in the capacity of mortgagees. Preliminary decree was passed in the suit on 22.03.1956. An Appeal in A.S.No. 53 of 1956 was filed which suffered dismissal and a Second Appeal in S.A.No. 784 of 1957 was filed and the same was also dismissed by the High Court confirming the preliminary decree. 3(ii). This respondent filed A.S.No. 59 of 1966 which was allowed with modifications. Then, the decreeholders filed Second Appeal which was dismissed by this Court. No final decree has been passed afterwards. This respondent filed two applications to receive the mortgage amount and another application. In all the three applications, preliminary decree was passed by the Taluk Munsif Court. The parties who have obtained preliminary decree in the original suit, have no right in the property and the application filed by them for passing final decree has been dismissed. The 19th respondent has filed the counter expressing his consent to allow the application. 4. The learned Additional District Munsif, Madurai Town has dismissed the application by stating that it could not be believed that the petitioner obtained the information as to the passing of the ex parte order only on 28.02.2008, since the siblings of this petitioner already made appearance through their lawyer and the 13th respondent who is the sister of this petitioner received summons in the address which is mentioned in the petition, who filed E.A.No. 251 of 2007 in which she has mentioned her address and it is also accepted that both 13th respondent and this petitioner are residing at the same address, that while the 13th respondent appeared in the execution proceedings, the petitioner could not say that he was unaware of the proceedings and that there is no love lost between this petitioner and his siblings. It is also observed that the petitioner did not examine himself nor anybody else to establish about his ignorance of the Court proceedings and that to elongate the proceedings, the petition has been filed. 5. Before entering into the discussion, it is profitable to bear in mind the order sheet particulars in E.A.No. 153 of 2008. While this Court scrutinises them with reference to dates of events, it comes to light that the Court bailiff on 23.01.2002 has returned the Court notice pertaining to the 8th respondent

in the Execution Petition viz., this petitioner and other respondents by stating that "no residence". On 08.02.2002, the Court ordered for publication in newspaper for this respondent and some other respondents to be made by 21.02.2002. On 21.02.2002 and 08.03.2002, the time was enlarged for making paper publication for the hearing on 05.04.2002. The paper publication was then produced and this petitioner and others were called absent and set ex parte. 6. The learned counsel for the petitioner Mr. S. Ramesh @ Ramaiah would strenuously contend that the executing Court has not followed the procedures contained in Order 5, Rules 19 and 20, CPC and hence, the ex parte order passed against this petitioner gets vitiated. It is his further contention that when the statute mandates the Court to follow and observe the procedures specifically incorporated in the Civil Procedure Code, any deviation in this regard would invalidate the consequent orders also, passed by the Court. 7. He also states that under Order 5, Rule 17, when the Court bailiff returned the notice to the Court in the cases of refusal of accepting the service or the respondent could not be found, then the Court shall proceed to act under Rule 19 of Order 5, CPC and this provision casts a duty on the Court to declare that summons was duly served by recording its reasons and if the Court feels otherwise, it may order by other modes. He further would say that the Court after exhausting the procedure adumbrated under Rule 19, has to proceed to abide by @page-Mad116 the procedure laid down in Rule 20 and before passing the order for substituted service, it ought to record reasons for its satisfaction to the effect that there is reason to believe that the defendant is keeping out of the way of avoiding service, hence substituted service has to be ordered. He stresses a point that in case if the Court fails to record the reasons for such satisfaction, the ex parte order passed against the defendant becomes a nullity. 7A. Conversely, the learned counsel for the respondent Mr. S. Manohar would submit that while the Court acted under Order 19, since the verified affidavit was filed by the Service Officer, there was no necessity for the Court to examine him and even if the declaration as contained in Rule 19 was not expressed explicitly in writing, still the ex parte order is valid, but the Court did not stop with it, it further proceeded under Rule 20 and after satisfaction, it ordered substituted service by paper publication and there is no legal infirmity in any of the stages in the proceedings, that the executing Court as scrupulously followed the procedures laid down in the CPC and hence, the ex parte order is valid in the eye of law. 8. In order to have a thorough glimpse of the subject, it is profitable to extract Rules 19 and 20 of Order 5, CPC, which are as follows : "Rule 19, Order 5. Examination of Serving officer : Where a summons is returned under Rule 17, the Court shall, if the return order under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the

serving officer on oath, or cause him to be so examined by another Court, touching his proceedings and may make such further enquiry in the manner as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit. Rule 20. Substituted service : (i) where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. [1A Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.) 2. Effect of substituted service : Service substituted by order of the Court shall be as effectual as if had been made on the defendant personally. 3. Where substituted service, time for appearance to be fixed : Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require". 9. When Rule 19 is consciously read, it could be discerned that while the Court bailiff returns the notice verified by the affidavit, it is the discretion of the Court to examine him and if such verified affidavit is not produced, it is incumbent upon the Court to examine him. In case, if the Court bailiff was examined, the Court must declare that the summons has been duly served and in case, no such declaration is made, the Court has to proceed to order service by other modes as it deems fit. 10(i). In this context, judicial pronouncements have uniformly declared that the Court shall record its reasons for such a declaration. If the summons was duly served and the Court records such declaration after applying its mind, the service of summons ends with it and it is then open to the Court to set the defendant ex parte. In case, if such declaration could not be made by the Court for the reasons that in case of non-verification of affidavit by the Court bailiff or his examination, after he had filed the verified affidavit, does not establish that summons were not duly served upon the defendant, the Court is not expected to record its reasons, since no scope for it to express such declaration and in this situation alone, the Court could pass on to the next stage, namely, "Or order such service as it deems fit". 10(ii). If there were no circumstances for recording declaration as provided in Rule 19, then the Court shall proceed to invoke Order 20, where the Court is expected to get @page-Mad117 satisfaction to the fact that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding the service or if the service could not be made in the ordinary way, then the

substituted service as suggested in various modes in this Rule shall be ordered. The term "satisfied" Has been carefully employed by the legislature in Rule 20, which has got its wider connotation and its legal implication assumes much importance. 11. There are two different views expressed by various High Courts and this Court is following the principle laid down by the Supreme Court. One view is that while the Court obtains the subjective satisfaction while applying the provision in Rule 20 that it has to record its reasons indicating its satisfaction and in its absence, the further orders passed by the Court become vitiated. The other divergent opinion in this regard is that it is not a statutory requirement anticipated by law that the Court shall record its reasons as to the satisfaction. 12. The learned counsel for the petitioner cites the Full Bench decision of this Court reported in AIR 1970 Madras 271 (V 57 Court 77), Parasurama Odayar v. Appadurai Chetty and others, in which this Court has laid down the principles that what is important is that the endorsement of the Court itself should indicate that the Presiding Officer has applied his mind and considers that the summons has been duly served while proceeding under Rule 19. 13. As far as the facts in the present case are concerned, the executing Court did not get satisfaction on the return of summons by the Court bailiff. A perusal of the verified affidavit by the Court bailiff shows that while he went to the residence of this petitioner, he was informed that he had gone out and his date of return was not known and hence, he affixed the notice on the outer door of his residence. Further, the cover containing the summons sent by the registered post from the Court to this petitioner was returned to the Court by endorsement as "not claimed". Anterior to making such endorsement, an other reference is found as "intimation". Hence, while the postman went to the house of the petitioner, he was not available and he left intimation to the inmates of the house and registered cover was retained in the post office for a period prescribed and since it was not claimed by the addressee, it was returned to the Court. 14. In this juncture, the learned counsel for the decree-holders would say that a presumption has to be drawn under Section 27 of the Post Office Act and Section 114 of the Evidence Act that the summons was duly served on the petitioner. For this proposition, he relied upon a decision of the Supreme Court reported in P.T. Thomas v. Thomas Job,(2005) 4 CTC 30 : AIR 2005 SC 3575. The relevant portion of the said judgment goes thus : "15. The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act, 1898. The requirement of the section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act, 1872 operates apart from that under the Post Office Act, 1898."

15. Even though the presumption as to the service is drawn in favour of this respondent, the fact remains that the Court did not presume that summons was served upon this petitioner and did not make its declaration as ordained by Rule 19, but passed on to act under Rule 20. Hence, it is to be held that there was no recording by the Court as "service sufficient" under Rule 19, since the Court has proceeded to pass orders under Rule 20. 16. When the Court solicits the procedures under Rule 20, the sine qua non is getting satisfaction as to the fact that there is reason to believe that the defendant is keeping out of the way for avoiding service and that the ordinary way summons could not be served. 17. It is quintessence of the learned counsel for the petitioner that before passing the order for substituted service, the Court should record its reasons in writing as to the said satisfaction. He placed reliance upon a decision of this Court reported in CD Law Journal, CDJ 2006 MHC 1025, in which the learned Judge, while making observations under Order 5, Rule 20, CPC has remarked that under this provision, the @page-Mad118 Court should be satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or for any other reasons that the summons cannot be served in an ordinary way and the absence of recording satisfaction, would amount to violation of principles of natural justice. The said case was decided on the order of assessment levying tax by the Income Tax Officer. 18. He also cites a Division Bench decision of the Allahabad High Court reported in AIR 2004 Allahabad 391, Om Prakash v. Prakash Chand and others, in which the learned Judges have held that Order 5, Rule 20, CPC makes it clear that substituted service is permissible, provided, the Court records reasons after being fully satisfied that service cannot be effected in an ordinary manner and it cannot be taken as a matter of right. In the said decision, another ruling of Division Bench of the Calcutta High Court has also been referred to in AIR 1984 Cal 82, Teharoochand v. M/s. Surajmull Nagarmull, in which it is held that before issuing summons under Order 5, Rule 20 of the Code, the Court is to be satisfied that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason summons cannot be served in the ordinary way. 19. In AIR 1999 MP 21, M/s. Satish Construction Company v. Allahabad Bank, the learned single Judge has rendered his observation in a similar way that while passing Order 5, Rule 20 the Court has to record its satisfaction that the defendant was keeping out of the way for the purpose of avoiding service or in the alternative, it is required to record its satisfaction that for any other reasons, the summons could not be served in ordinary way and that absence of such recording would render the ex parte order improper. 20. The decision reported in 2007 (5) CTC 847 : AIR 2007 (NOC) 1809 (Mad), Doss and another v. Vamanan and another, cited by the learned counsel for the petitioner pertains to the service of summons as to the procedures enumerated in Order 5, Rule 19. In AIR 1989 Punjab and Haryana 319,

Kuldip Rai v. Sharan Singh (deceased by L.Rs.) and others, an identical view has been echoed that before resorting to the provisions of Order 5, Rule 20 of the Code of Civil Procedure, it is obligatory for the Court to record its satisfaction as enjoined under the statute and the substituted service cannot be ordered in a routine manner. 21. Even though two views expressed by the Allahabad, Madhya Pradesh, Calcutta and Punjab and Haryana High Courts, and a learned Judge of this Court, are to the effect that before proceeding to pass orders for substituted service under Rule 20(1) and (1-A), the Court has to satisfy and the said satisfaction should be revealed in writing by the Court by recording the same, the view taken by the Supreme Court and a Division Bench of Patna High Court in this regard is on the reverse. While the Supreme Court deals with Order 5, Rule 20, it is held that if the satisfaction of the Court in this context is implicit, it is sufficient. The relevant portion of the judgment containing this observation is as follows :"4. Learned counsel for the appellants contended that the trial court has acted in violation of the procedure prescribed under Order 5 of the Code of Civil Procedure, in issuing summons to the defendants. He further contended that the substituted service can be resorted to only when the court is satisfied that the defendant is avoiding the service or the service cannot be effected in an ordinary way. The trial court having not passed any order about the satisfaction as envisaged under the Code, it was not open to the trial court to order for substituted service. This submission need not detain us any longer. On the facts of the case the court's satisfaction is implicit in the order directing service by publication." 22. While rejecting the contention that the Court having not passed any order about the satisfaction, it was not open to the trial Court to order for substituted service, the Supreme Court has held that the satisfaction was implicit. It is to be noted that the Apex Court has not made any observation that the Court has to express its satisfaction by recording, before ordering substituted service. 23. A Division Bench decision of the Patna High Court is directly on this subject may be profitably referred to which is reported in AIR 1967 Patna 280, Raj Kumar Singh v. Gourishankar Jhunjhunwala and others. "The learned Judge, who disposed of the miscellaneous appeal in this Court, held that there was a justification for step being taken under Order 5, Rule 20 of the Code on the @page-Mad119 facts and circumstances of the case. But learned counsel contended that it was not the satisfaction of the appellate Court but the satisfaction of the trial Court which was a pre-requisite condition before any substituted service could be legally ordered for under Rule 20. This contention is right, but, all the same, it does not appear from the order sheet nor from any other material that the trial Court in this case was not so satisfied before he passed the order on 17th July, 1953 for substituted service. It is not necessary and that has also not been prescribed in any provision of the Code of Civil Procedure that the Court will have to record the reasons for such satisfaction or even the fact that it was so satisfied before he can make a valid order under Rule 20 of Order 5 for substituted service."

24. As per the Patna High Court, Rule 20 has not specifically directed the Court to record its reason for the satisfaction and then pass on to the next stage. The Court further proceeded to observe that from the order sheet it will be clear that several attempts had been made by the plaintiff to have the personal service of summons on defendant No.2 as on other defendants and when such attempts did not materialize, the Court passed order for substituted service. There is therefore sufficient materials to presume that the Court was satisfied as a matter of fact as contemplated under Rule 20 before it directed the substituted service effected by the publication of the summons in the Bengal Gazette. It his further held as follows :'Mere absence in the order sheet to the effect that the Court was satisfied or mere absence of any reference to the reasons for such satisfaction in the order sheet cannot be taken advantage of by the appellant to challenge a valid order as made under Rule 20. Such record is not called for under any provision of law. In absence of any other material to the contrary. We have to presume that the Court had been satisfied before it passed the order on 17th July 1953 for substituted service'. 25. The facts prevailing in the case on hand are also on the same footing. Earlier, as adverted to supra, there had been steps taken by the decree-holder to serve summons upon this petitioner and thereafter only, the Court passed order for substituted service. So, the materials available as seen in the docket sheet orders would go a long way to show that the Court only after having satisfied itself as per Rule 20, Ordered substituted service. 26. In this connection, this Court intends to gather the intention of the legislature while deriving its central idea, in embodying two provisions in Rules 19 and 20 in Order 5. Under Order 19, the Court is expected to declare that the summons have been duly served after fulfilling the legal formalities as contained in Rule 19, whereas the Court is anticipated to get satisfaction that there is reason to believe that the defendant is keeping out of the way of avoiding the service, in Rule 20. 27. The Full Bench of this Court in Parasurama Odayar (cited supra) has held that the declaration under Order 19 shall be in writing by recording reasons so as to infer the application of mind by the Presiding Officer. Hence, the intention of the legislature was gathered by the Full Bench of this Court and it was held that in order to declare the opinion of the Court, it has to record its reasons as to such declaration. It is laid down in unequivocal terms in the said decision that the declaration must be expressly divulged by the Court in any of the form known to it. But, significantly, such obligation of recording reasons was not the intention of the legislature, while it requires the Court to function under Rule 20. Had the intention of the legislature been to mandate the Court to record reasons to reveal its satisfaction, it might have introduced any other term in the place of the word "satisfied" and it might have been the same words as "after declaration". The use of different words in both the Rules 19 and 20 would explicitly make more reasonable premise to the effect that the satisfaction might be an implicit, as held by the Supreme Court (supra) and not in express terms. In other words, opening sentence of Rule 20 might have been as "after the Court having declared that there is reason to believe that the defendant is keeping out of the ways for the purpose of "avoiding service", instead of having placed the words as "whether the Court is satisfied that", if really the legislature was intending to make it salutary, the recording of reasons for satisfaction, on the Court. It is the pointer to the legislative intent.

28. While the intention of the legislature is gathered in such a way, it has to be inevitably held that no duty is cast upon the @page-Mad120 Court under Rule 20 to explicitly express its satisfaction by recording the reasons and same ought to be inferred from other circumstances, namely, the earlier hearings where service of summons was either defeated on behalf of the defendant or made impossible by any other means. (Emphasis supplied) 29. In such view of this matter, the contention that the Court has to furnish reasons for its satisfaction under Rule 20 has to be discountenanced. Following the principle laid down by the Supreme Court, it is observed that the Court is not bound to record reasons for satisfaction. It is also regarded that Rule 20 has not been drafted in such a way, making it obligatory or mandatory on the part of the Court to perform such function. It is not a statutory duty cast on the Court. 30. The learned counsel for the respondents would garner support from a decision of the Supreme Court reported in 2005 (4) CTC 534 : (AIR 2005 SC 3460), Damodaran Pillai and others v. South Indian Bank Ltd, in which Their Lordships have held that the starting point of limitation for filing restoration application would be the date of order and not date of knowledge of order. Date of knowledge of order was held to be wholly irrelevant. That observation made by the Supreme Court while dealing with application of the restoration of the petition which was dismissed for non-prosecution in execution proceedings. In that case, the petitioner had been very much aware of the pendency of the petition and hence, the date of knowledge of the dismissal could not be the relevant factor for the purpose of Order 21, Rule 106(3), CPC. But in the present case on hand, the petitioner is respondent in execution proceedings and he pleads that no summons was served on him and hence, the decree-holders cannot take recourse to this decision. 31. In the light of the decisions of the Supreme Court and the various High Courts, it is held that the Court is not expected to record its reasons as to the satisfaction gained for the purpose mentioned in Rule 20 which is not mandatory and so, the order of substituted service passed by the executing Court is valid in the eye of law and it does not suffer from any illegality. The ex parte order passed against the petitioner need not be set aside under any circumstances and the proceedings are held to be in accordance with law. In such view of this matter, the order challenged is confirmed. The civil revision petition suffers dismissal. 32. In fine, the civil revision petition is dismissed. Consequently, connected M.P. is closed. No costs. Petition dismissed. AIR 2009 MADRAS 120 "S. V. Parthasarathy Battachariar v. S. Rajeswari" MADRAS HIGH COURT Coram : 1 G. RAJASURIA, J. ( Single Bench )

S. V. Parthasarathy Battachariar and Anr. v. S. Rajeswari and Ors. C.R.P. (PD) No. 3767 of 2008, and M.P. No. 1 of 2008, D/- 3 -3 -2009. Hindu Adoptions and Maintenance Act (78 of 1956), S.19 - MAINTENANCE - Interim maintenance Husband not known for more than seven years deemed to have been died - Father-in-law liable to pay maintenance to widowed daughter-in-law - However, there is no provision under said Act for maintenance of grandsons by paternal grandfather - Considering commitment of a widow to maintain her children and minors being sharers in joint family properties not deriving any income - Peternal grand parents being in possession of joint family property liable for maintenance of minor grandsons Maintenance of Rs. 3000/- per month towards daughter-in-law and Rs. 1000/- per month each in favour of minors - Not excessive. (Paras 9, 10) Cases Referred : (2003) 10 SCC 228 Judgement ORDER :- Inveighing the order dated 26.08.2008, passed by the Additional District Judge, Fast Track Court No.I, Chengalpattu, in I.A.No.65 of 2008 in O.S.No.364 of 2005, this civil revision petition is focussed. 2. Pithily and precisely, tersely and briefly, by way of avoiding discursive discussion, the relevant facts which are absolutely necessary and germane for the disposal of this revision petition could be portrayed thus : The respondents/plaintiffs herein filed the suit O.S.No.364 of 2005 seeking the following reliefs : "a) usual preliminary decree for partition of the suit properties into 5 equal shares and for allotment of one such share to plaintiffs by metes and bounds; @page-Mad121 b) for costs of this suit; and c) for such other relief." Written statement was filed in the suit. During the pendency of the suit, I.A.No.65 of 2008 was filed by the plaintiffs seeking interim maintenance from D1 and D2 who are none, but the father-in-law and mother-in-law of first plaintiff and paternal grand parents of the minor plaintiffs 2 and 3. Counter was filed by the respondents/defendants 1 and 2 in the I.A. The trial Court on hearing both sides awarded interim maintenance payable by D1 and D2 in favour of the first plaintiff in a sum of Rs.3,000/- per month and a sum of Rs. 1,000/- per month each in favour of minor plaintiffs 1 and 2. 3. Being disconcerted and aggrieved by the order of the lower Court, this revision has been filed on various grounds, inter alia thus : Chronological Paras 6

There is nothing to indicate and exemplify that the husband of the first plaintiff and father of plaintiffs 2 and 3 died or deemed to have died and only while adjudging the main suit, the Court could decide on that. In such a case, awarding of interim maintenance by the D1 and D2 in favour of the plaintiffs is not tenable. The father-in-law as per Hindu Adoptions and Maintenance Act should maintain only a widowed daughter-in-law having no source of income. In the absence of evidence, the lower Court was not justified in passing such order in the I.A. 4. Despite printing the names of both sides, there is no appearance. 5. A plain poring over and perusal of the typed set of papers including the copy of the order of the lower Court would demonstrate and display, project and convey that according to the plaintiffs, the whereabouts of S.P. Sampath the husband of the first plaintiff and father of minor plaintiffs 1 and 2 was not known for more than seven years and that he is deemed to have died and that the plaintiffs are entitled to partition of the suit properties and allotment of 1 /5th share as Sampath happened to be one of the co-sharers along with, namely D1, D3, D4 and D6. 6. The plaintiff has come forward with a categorical version in her affidavit that her husband disappeared and his whereabouts were not known for about eight years; she has been suffering a lot with her two minor children as she has no source of income. Whereas, D1 admittedly is having enough source of income and hence she prayed for maintenance, pending disposal of the suit. The contention on the part of the respondents/D1 and D2 that the Court has not so far decided as per Section 108 of the Indian Evidence Act the deemed death of Sampath, is not germane for deciding the I.A. At this juncture, my mind is redolent and reminiscent of the following decision of the Hon'ble Apex Court reported in (2003) 10 SCC 228, Amarjit Kaur v. Harbhajan Singh. No doubt, the said precedent emerged out of a case between husband and wife, but the ratio found embedded in the precedent is that the Court cannot call upon the seekers of maintenance to prove the entire case itself before seeking maintenance. As of now, there is no indication from the respondents that the said Sampath is alive or he is very much living in some place. There is also no iota or miniscule, shred or shard of evidence to indicate and demonstrate that the plaintiffs suppressing the very existence of Sampath have chosen to file this I.A. claiming maintenance. Hence, at the time of deciding the I.A. for maintenance, the lower Court was not expected to delve deep into the contentious issues in the suit. 7. Ex facie and prima facie, it has been made out by the plaintiffs that they have no source of income to maintain themselves and the defendants 1 and 2 being the in-laws of first plaintiff and paternal grand parents of P2 and P3, having source of income should maintain them. 8. A plain reading of Section 19 of the Hindu Adoptions and Maintenance Act would exemplify and demonstrate that a widowed daughter-in-law, who is having no source of income, could claim maintenance from her father-in-law. However, there is no express provision contemplated in the Hindu Adoptions and Maintenance Act that a grand-son could claim maintenance directly from the grandfather. Even then, the matter has to be viewed holistically and pragmatically. While assessing the financial wherewithal of the first plaintiff, her commitment to maintain her minor sons should necessarily be taken into account and in isolation the requirement of the daughter-in-law alone to meet

her creature comforts should not be viewed or visualised. There is no embargo under the law that while assessing the financial wherewithal of a widowed lady her commitment to maintain her @page-Mad122 children should not be taken into account. No doubt, if taken into account, indirectly it might impinge upon the first defendant-the father-in-law of the first plaintiff to some extent but not to the fullest extent. Even if there be, to some extent, additional commitment on the part of the father-in-law in paying maintenance to the daughter-in-law, that is well within the principle of natural justice and also the object of the Hindu Adoptions and Maintenance Act. 9. Even though in the Hindu Adoptions and Maintenance Act, there is no indication that grand parents should maintain the grand children, nonetheless in the facts and circumstances of this case, the plaintiffs are also claiming to be the sharers in the suit property and they are not deriving any income from the suit properties. In such a case, the respondents who are in possession and enjoyment of the joint family properties should part with some portion of the income from the joint family properties, pending suit in favour of the minors and in that view of the matter, the lower Court awarding interim maintenance in favour of the minors cannot be found fault with. I also make it clear that in the event of partition decree being passed and directing the sharing of mesne profits by the defendants, the interim maintenance actually stood paid as on the date of such sharing should correspondingly be adjusted. 10. Regarding quantum of maintenance is concerned, the lower Court awarded only a sum of Rs.3,000/per month in favour of the first petitioner. Taking into consideration the present day cost of living, the first plaintiff who happens to be the daughter-in-law of the respondents/defendants 1 and 2 who are having sufficient status of their own as per the facts found set out in the written statement, is entitled to lead a reasonably comfortable life. To meet her creature comforts; to keep her body and soul together; to keep the wolf from the door and to keep the pot boiling, she would require atleast a sum of Rs.100/per day and as such, in a month roughly it comes to Rs. 3,000/- and that amount includes her medical, travel expenses and such like. Similarly awarding a sum of Rs. 1,000/- in favour of each of the minor plaintiffs 2 and 3 by no stretch of imagination could be labelled or dubbed as excessive or exorbitant and it requires no elaboration so as to justify such awarding such maintenance. As such, the lower Court's approach in dealing with the I.A. for interim maintenance warrants no interference. 11. In the result, I could see no merit in this civil revision petition, accordingly the same is dismissed confirming the order of the lower Court. However, I make it clear that in the event of respondents/D1 and D2, actually paying the maintenance, the interim maintenance so paid shall stand adjusted proportionately in the share of the plaintiffs mesne profits. No costs. Consequently, connected miscellaneous petition is closed. Petition dismissed. AIR 2009 MADRAS 122 "Karuppa Gounder v. Kuppuswamy" MADRAS HIGH COURT

Coram : 1 G. RAJASURIA, J. ( Single Bench ) Karuppa Gounder v. Kuppusamy. C.R.P. (PD) No. 3904 of 2008, D/- 5 -3 -2009. Evidence Act (1 of 1872), S.45 - EVIDENCE - CONTRACT - AGREEMENT TO SELL - Opinion of Handwriting Expert - Suit for specific performance - Signature in disputed agreement of sale denied by defendant Since plaintiff took no step to obtain opinion of Handwriting Expert - Defendant sought opinion after a considerable delay - Merely because there was delay in seeking opinion of Expert - Application should not be rejected. (Paras 5, 6) Cases Referred : Chronological Paras 6

1992 Cri LJ 3454 : AIR 1992 SC 2100 : 1992 AIR SCW 2486 Judgement

ORDER :- Inveighing the order dated 24.10.2008, passed by the Subordinate Judge, Bhavani in I.A.No. 293 of 2008 in O.S.No.66 of 2007, this civil revision petition is focussed. 2. A summation and summarisation of the relevant facts which are absolutely necessary! and germane for the disposal of this revision petition would run thus : The respondent filed the suit O.S.No.66 of 2007 for specific performance of the agreement to sell dated 06.10.2006. The defendant also entered appearance and filed written statement. During the pendency of the trial it appears I.A.No. 293 of 2008 was filed by the defendant under Order 6 Rule 10(a) of CPC seeking the following relief : "To appoint a handwriting and finger print expert, whose address is mentioned hereunder @page-Mad123 under as Commissioner to compare the petitioner's signature found in the Registered sale deed, dated 19.03.1984 Doc.No.484/ 1984 with his signature found in the suit agreement of sale marked as Ex.A1 to file a report to pass other suitable orders." After hearing both sides, the lower Court dismissed the LA. 3. Being disconcerted and aggrieved by the order of the lower Court, this revision has been filed on various grounds, inter alia thus : The order of the lower Court is against law, weight of evidence and all probabilities of the case in view of the fact that earlier the revision petitioner/defendant was hoping that the plaintiff would take steps to obtain the handwriting expert's opinion relating to the purported signature of the defendant found in the agreement to sell as the defendant denied his signature; inasmuch as the plaintiff had not taken any

steps, the defendant did choose to file such an application, but the lower Court failed to appreciate the same in proper perspectives. 4. Despite printing the names concerned, none appeared. 5. A plain poring over and perusal of the relevant facts would exemplify and evince that the revision petitioner/ defendant even at the time of replying to the pre-suit notice as well as in the written statement filed in the suit took up the consistent stand that the purported signature in the agreement to sell is not that of his and in such a case, the plaintiff himself could have taken steps to obtain handwriting expert's opinion in that regard, but he did not do so. Hence the defendant had come forward with such an I.A. for taking the assistance of handwriting expert, but the lower Court dismissed it. 6. I am of the considered opinion that obtaining handwriting expert's opinion in the facts and circumstances of this case would certainly help the Court to arrive at a consistent and firm conclusion. A plain reading of the order of the lower Court would convey the idea that the lower Court dismissed the I.A. on the sole ground that there was delay in applying to the Court by the defendant for getting the assistance of the handwriting expert. In such a case, the mere delay should not be taken as material, for the reason that as per the defendant's version, he awaited the plaintiff to take steps to obtain handwriting expert's opinion, but in this case, he did not do so. Hence, when the matter was posted for defence, he chose to invoke the power of the Court under Order 26 Rule 10(a) of CPC and to get assistance of handwriting expert to find out whether the purported signature of the defendant is that of his admitted signature. Even though Section 73 of the Indian Evidence Act might contemplate that the Court itself could compare the disputed signature with that of the admitted signature, nonetheless, the Court should be slow in resorting to such a procedure, to the effect judicial views are found set out in catena of decisions of the Hon'ble Apex Court, reported in 1992 (3) SCC 700 : (1992 Cri LJ 3454) (State of Maharashtra thro. CBI v. Sukhdev Singh alias Sukha and others). 7. It is also a point to be noted that the respondent/ plaintiff has not filed any counter opposing the said I.A. In the result, the impugned order dated is set aside by allowing this civil revision petition and consequently I.A.No. 293 of 2008 shall stand allowed as under : "An Advocate Commissioner shall be appointed : (a) To carry the relevant documents in connection with this case personally in a sealed cover; (b) and produce the same before the Forensic Expert; (c) leave it in his custody under his acknowledgment for as many days as the Forensic Expert may require; (d) collect the record from the Forensic Expert on the day as maybe fixed by him; (e) bring it back and lodge it with the Court.

The Forensic Expert is. directed to complete the examination of the records in any event, within 48 hours after the depositing of the same by the Advocate Commissioner with him. No costs. Consequently, connected miscellaneous petition is closed. Order accordingly. @page-Mad124 AIR 2009 MADRAS 124 "National Insurance Co. Ltd., Attur v. Deivanai" MADRAS HIGH COURT Coram : 1 S. PALANIVELU, J. ( Single Bench ) National Insurance Co. Ltd., Attur v. Deivanai and Ors. C.M.A. No. 1833 of 2002, D/- 17 -3 -2009. Insurance Act (4 of 1938), S.64(V)(B)(2) - Motor Vehicles Act (59 of 1988), S.149 - INSURANCE - MOTOR VEHICLES - Insurance Policy - Effective date - Insurance Company denied liability on ground that insurance policy was obtained after date of accident - Cheque towards premium has been drawn and dispatched by Bank on 2-3-1992 for payment of premium and accident occured on 3-3-92 - Even if policy has been prepared after accident it could be said that valid premium has been paid by owner prior to accident - In view of S.64(V)(B)(2) of Insurance Act, 1938 policy became effective on date when cheque has been drawn and posted - Insurance Company liable to pay compensation to claimants. 2004 (1) TN MAC 174, Distinguished. 2003 (2) CTC 72, Relied on. (Paras 18, 19, 20) Cases Referred : (2007) 5 CTC 892 (SC) Chronological Paras 14 16, 19

(2004) 1 TN MAC 174 (Mad) (Distinguished) (2003) 2 CTC 72 (Mad) (Relied on) (2002) 3 Mad LJ 415 13

17, 19, 20

N. Vijayaraghavan, for Appellant; T. Murugamanickem, Kaithamalai Kumaran, for Respondents. Judgement JUDGMENT :- On 3.3.1992 at about 6.30 p.m. while the deceased Kandasamy was riding his bi-cycle, his father Sengamalai Padayachi was sitting on the back seat. While the cycle was proceeding along Ammamapalayam Road near Bungalow Kadu, a tractor bearing registration No.TN-27-2-2151 was driven by its driver in a rash and negligent manner and dashed against the cycle from the back and hence the accident occurred. Both of them sustained serious injuries and were removed to Government Hospital,

Attur. Kandasamy was referred to M.K.G.M.C. Hospital, Salem, for further treatment, however, on the way, he died. He was aged about 28 years at the time of accident. He was an agriculturist and tapioca broker. Agricultural lands to the extent of 2.49.5 hectare belong to the family of the deceased. He was earning not less than Rs. 2,000/- per month. The first petitioner is wife of the deceased, second and third petitioners are minor sons and fourth and fifth petitioners are parents of the deceased. Hence a sum of Rs. 2,00,000/- is claimed as compensation. 2. In the counter filed by the first respondent, it is stated that the deceased was aged more than 40 years and was not doing any work. He was neither an agriculturist nor a tapioca broker. The accident occurred due to the natural causes. The compensation claimed is excessive. The deceased was responsible for the accident. He lost control over his cycle. He was already sick. This respondent's vehicle was hypothecated to Indian Bank, Attur Branch and the understanding was that the banker should pay the insurance premium at the appropriate date. Hence the petition has to be dismissed. 3. In the additional counter filed by the first respondent, it is stated that on 2.3.1992, the fourth respondent bank debited Rs.1,411/- from this respondent's loan account towards policy amount. On 2.3.1992 itself by way of banker's cheque, the policy amount was paid to the third respondent-Insurance Company. Due to oversight the third respondent had not insured the vehicle in time and to avoid payment of compensation, they insured the vehicle on 4.3.1992 alone. Hence, both the Insurance Company and Bank are responsible to compensate the claimants. 4. In the counter filed by the third respondent-Insurance Company, it is alleged that the driver did not possess valid driving licence on the date of the accident and there was no valid permit and R.C. for the vehicle. The avocation, income as alleged in the petition are denied. This respondent was impleaded on 3.10.1997 alone and hence the rate of interest has to be computed only from the said date. It is not correct to say that the accident took place due to the negligent driving of the driver. The negligence was on the part of the deceased. The claim is excessive. Hence, the petition has to be dismissed. 5. In the additional counter filed by the third respondent-Insurance Company, it is mentioned that only on 4.3.1992 the first respondent's vehicle was insured with this respondent and hence this respondent is not liable to pay compensation. 6. In the counter filed by the fourth respondent, @page-Mad125 it is averred that this respondent is neither a necessary party nor a proper party to the claim petition. This respondent has nothing to do with the case and is not responsible for compensation. 7. After analysing the evidence on record, the learned Tribunal Judge fastened the responsibility on the owner of the vehicle, Insurance company and Indian Bank holding them jointly and severally liable to pay compensation of Rs. 1,75,000/- to the claimants with interest at the rate of 9% p.a. Aggrieved against the said award, the Insurance Company is before this Court.

8. A thorough discussion has been taken up by the Tribunal with reference to the particulars available in the oral evidence on record and it reached a conclusion that under Section 64(b) of the Insurance Act, the Insurance Company has to be held liable since on 2.3.1992 itself the banker's cheque for Rs. 1,411/was despatched by the bank. 9. As far as the anchoring of liability upon the driver for causing the accident is concerned, there was not much quarrel. The parties are at loggerheads with reference to the responsibility to pay compensation. The bank contends that as per the records on 02.03.1992 itself banker's cheque was drawn, which was duly despatched to the Insurance Company and with this, their responsibility was over. But the Insurance Company would contend that only on 4.3.1992 the said banker's cheque was received and the policy was prepared on that day itself giving effect from 04.03.1992 to 03.03.1993. It was in force from 0.00 hours on 4.3.2002. 10. It is an admitted fact that the Insurance Company received the banker's cheque dated 02.03.1992 for Rs.1,411/- but it is stated by the bank that the cheque was despatched along with the covering letter Ex.B.3 to the Insurance Company. But they kept it and put the seal of 4.3.1992 and prepared policy on that date. 11. Conversely, the Insurance Company would submit that inasmuch as Ex.P.3 bears office seal of the Insurance Company of 4.3.1992, the issuance policy dated 4.3.1992 is proper and there is no foul play in it. 12. From the oral evidence, it transpires that both the bank and the Insurance Company are situated in the same building. Even though it is stated that the bank delivered cheque on 2.3.1992 itself to the Insurance Company, it does not produce any document. But Ex.P.3 is a clear evidence to show that only on 4.3.1992 the cheque was received. In this context it is stressed by the learned counsel for the claimants that by virtue of Section 64(V)(B) of the Insurance Act 1938, the date of the cheque has to be taken into consideration for the purpose of payment of premium. The said provision goes thus : (1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner. (2) For the purpose of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which, the premium has been paid in cash or by cheque to the insurer. Explanation : - Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be.

(3) Any refund of premium which may become due to an insured on account of the cancellation of a policy or otherwise shall be paid by the insurer directly to the insured by a crossed or other cheque or by postal money order and a proper receipt shall be obtained by the insurer from the insured and such refund shall in the case be credited to the account of the agent. (4) Where an insurance agent collects a premium on a policy of insurance on behalf of an insurer, he shall deposit with, or despatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty four hours of the collection excluding bank and postal holidays. (5) The Central Government may by rules, relax the requirements of sub-section (1) in respect of particular categories in insurance policies." When the explanation to sub-section (2) of Section 64(V) (B), is read, it is seen if the premium is tendered by means of a cheque @page-Mad126 sent by post, the date on which the cheque is posted has to be considered as the date of premium. 13. In 2002 (3) MLJ 415 [K. Ramalingam v. Parvathi and others] it is held by the Division Bench of this Court that when a bank agreeing to insure the vehicle and renew the same from time to time till the entire loan is cleared, then the bank is responsible to pay the compensation if any lapse on its part is found. 14. Learned counsel for the appellant would place reliance on the decision of the Supreme Court in 2007 (5) CTC 892 [National Insurance Co. Ltd., v. Sobina Lakai] wherein Their Lordships have held that when there is a specific time mentioned in the policy, it would operate from the said time and date indicated therein and it is the obligation of the Court to look into the contract of insurance to discern whether time has been specified for commencement or expiry of policy and the effectiveness of Insurance Policy would start from time and date specifically incorporated in policy and not from an earlier point of time. Their Lordships have also observed as follows : "19. In order to curb this widespread mischief of getting Insurance Policies after the accidents, it is absolutely imperative to clearly hold the effectiveness of the Insurance Policy would start from the time and the date specifically incorporated in the policy and not from an earlier point of time." 15. In the case on hand, the facts are distinguishable. In the present case, the cheque was already drawn on 2.3.1992 itself in the name of the Insurance Company earmarking the payment towards premium for the policy and despatched on the same date. There is no such circumstances in the case before the Supreme Court. 16. Learned counsel for the appellant also garnered support from a Division Bench decision of this Court in 2004 (1) TN MAC 174 (DB) [National Insurance Co. Ltd. v. Geetha and others] wherein the learned

Judges have elaborately dealt with the matter with reference to the date and time of the policy, after referring to various decisions. Finally the Division Bench has held as follows : "11. The Indian Contract Act, 1872 covers the relationship between the parties to an insurance contract generally except in regard to some of its special features. So, unless the Insurance Company accepts and issue policy, the person who paid the premium cannot come forward with the plea that the Insurance Company is having an obligation to pay the compensation, especially when the premium was paid to get a new policy. In the present case, it is not in dispute that in the policy issued on the basis of the premium paid by the owner of the vehicle, it is specifically mentioned that the insurance policy covers for the period from 15.06.1998 10.00 a.m. But the accident took place about 5.30 a.m. on the said date. 15. In view of the above settled principles of law, the appellant-Insurance Company is correct in challenging the award of the Tribunal on the ground that they are not liable as the insurance policy was issued with the specific mention of the time and date of commencement of the insurance and the accident took place before the said time mentioned in the policy. There is, thus, a basic fallacy in the conclusion reached by the Tribunal on this point." 17. Repelling the arguments of the learned counsel for the appellant, learned counsel for the respondents 1 to 4 cited another Division Bench decision of this court reported in 2003 (2) CTC 72 [M/s. United India Insurance Co. Ltd. v. S. Viswanathan and another] wherein similar set of facts are available as those available in this case. The operative portion of the Judgment goes thus : "6....... Therefore, we are of the view that the case of the owner of the vehicle is acceptable and from the evidence of the owner of the vehicle it is clear that the cheque has been handed over on 20.2.1992 itself, and therefore on the date of the accident ie., on 23.2.1992, there was a valid insurance coverage. We uphold the decision of the Tribunal that the vehicle was validly insured on the date of the accident and there is no reason to interfere or alter this finding. Therefore, we find that there was a valid insurance policy on the date of the accident." 18. In the case discussed above, the cheque was handed over on 20.2. 1992 itself and the accident took place on 23.2.1992, however, on 2.3.1992 only the policy was issued. It has been observed that the policy becomes effective on the date when the cheque was issued by the owner to the Insurance Company. 19. As far as the facts of the present case @page-Mad127 are concerned, the time of giving effect to the policy on 4.3.1992 need not be considered for the reason that the accident occurred on the previous date i.e., 3.3.1992 itself. Insofar as the payment of premium is concerned, on 2.3.1992 itself cheque was drawn in the bank and it has been duly established by the bank. However, it was received by the Insurance Company on 4.3.1992 and thereafter the policy was issued on that date. In the case of Geetha and others (supra), the accident took place at about 5.30 a.m. on 15.06.1998 but the insurance policy took effect only from 10.00 a.m. on 15.06.1998 and the Division

Bench of this Court has observed that even though premium was paid by the person, unless the Insurance Company accepts and issued policy it does not have any obligation to pay compensation when the premium was paid to get a new policy. The Division Bench has also referred to the case of S. Viswanathan (supra) distinguished the facts that it was with reference to the renewal of policy and the case of Geetha and others is otherwise, i.e., taking of new policy. 20. When explanation appended to subsection (2) of Section 64(V) (B) of the Insurance Act is concerned, since the banker's cheque was drawn on 2.3.1992 itself, even though it was received by the Insurance Company on 4.3.1992, it has to be treated that valid premium was paid to the Insurance company and following the guidelines in the Division Bench decision of this Court in S. Viswanathan's case, it is held that the Insurance Company is also liable for compensation. 21. As far as the liability of the bank is concerned, there is no appeal and hence the award passed by the Tribunal has to be confirmed and it is accordingly confirmed. The Civil Revision Petition suffers dismissal. . In the result, the Civil Miscellaneous Appeal is dismissed. No costs. Appeal dismissed. AIR 2009 MADRAS 127 "R. I. Jebaraj v. Union of India" MADRAS HIGH COURT Coram : 1 S. NAGAMUTHU, J. ( Single Bench ) R. I. Jebaraj v. Union of India and Ors. W.P. No. 25613 of 2008, D/- 19 -1 -2009. (A) Foreigners Act (31 of 1946), S.3 - Foreigners Order (1948), Cl.3 - Constitution of India, Art.21, Art.14 FOREIGNERS - RIGHT TO LIFE - EQUALITY - Prohibition on entry of foreigner - Being an absolute and unfettered discretionary sovereign power - Govt. need not give opportunity for representation to concerned foreign national - Also Constitution does not provide any right to foreigner to compel Govt. to allow him to enter or affording opportunity of hearing. The sovereign power of the Central Government is absolute only in the matter of expulsion of a foreign national who was already been allowed to be in Indian soil, in view of the International Covenant 1966, a notice and an opportunity should be given to him before expelling him. But in respect of an order banning the entry of national into India, the Central Government need not state any reason as to why such ban order is imposed on him and it need not give any opportunity or notice to the foreign national. The Constitution of India does not contain any provision obliging the Central Government to issue notice affording an opportunity. The right to life guaranteed under Article 21 which is available to any foreign national does not engulf into its ambit a right to a foreign national to compel the Central Government

either to allow him to enter into India or to afford an opportunity to make representation or to state the reasons for such a ban. (Para 28) (B) Foreigners Act (31 of 1946), S.3 - Foreigners Order (1948), Cl.3 - FOREIGNERS - Prohibition on entry of foreigner - Non-speaking Order - Order of prohibition being absolute and unfettered there is no obligation on Govt. to state reasons. (Para 30) Cases Referred : Chronological Paras 24 21, 28

2008 W.P. No. 24647 of 2008, D/-23-10-2008 (Mad)

AIR 2006 SC 1714 : 2006 AIR SCW 1572 : 2006 (2) AIR Jhar R 539 : 2006 Cri LJ 2106 AIR 2005 SC 2920 : 2005 AIR SCW 3393 19, 22 AIR 1991 SC 1886 : 1991 AIR SCW 2113 17 AIR 1955 SC 367 12, 22, 28

V.T. Gopalan, Sr. Counsel, Abudu Kumar, Rajaratnam, for Petitioner; M. Ravindiran, for Respondents. Judgement ORDER :- The petitioner is a citizen of India residing at Madras. His brother by name Mr. Rajiah John Premkumar was born and brought up in India. Later, he acquired @page-Mad128 citizenship of France and admittedly, he is no more a citizen of India. He resides in France. He holds French Passport bearing No.03TF 750 95. Most of his relatives and family members reside in India. He has got a valid multiple entry visa dated 03.11.2003 issued by Indian High Commission in London, which expired on 02.11.2008. 2. Mr. Rajiah John Premkumar came to India by flight No. LH 758 on 19.02.2008. But his landing at Chennai Airport was refused by the second respondent. He was served with an order of the second respondent directing the airport authorities to remove him by the same flight. Accordingly, he was deported to France by the same flight. The petitioner came to know that the first respondent had earlier issued an order restricting the petitioner's brother's entry into India without prior permission from the first respondent. However, the said order of the first respondent was not served on the brother of the petitioner. 3. Thereafter, the petitioner filed Crl.O.P.No. 6511 of 2008 under Section 482, Cr.P.C., before this Court challenging the said order of the second respondent. When the matter was listed for final hearing, the second respondent produced the circular order of the first respondent in Prior Reference Category (S. 1) Circular No. 1/96, dated 03.10.1996 directing that visa or transit visa for India in favour of the brother of the petitioner should not be granted without prior reference to the Government of India. The said circular is under challenge in this writ petition.

4. The following are the main grounds raised in the writ petition : i. The impugned order lacks prudence and the same was passed without application of mind; further, there are no grounds satisfying para 3 of the Foreigners' Order, 1948 impelling the first respondent to issue such an order. ii. The impugned order came to be passed in violation of principles of natural justice and the same further violates Articles 14, 19, 21 and 22 of the Constitution of India. iii. The impugned order is a non-speaking order which does not assign any reason much less a proper reason for restricting the entry of the brother of the petitioner into India. Though the impugned order is stated to have been passed in the year 1996, subsequently, the petitioner's brother visited India on several occasions which had caused no prejudice to the interest of the nation and its security. The impugned order was not implemented for several years which would show that there could be no reason to restrict the petitioner's brother's entry into India. 5. In the counter filed by the second respondent it has been contended as follows : i) It is true that the petitioner's brother was born and brought up in Chennai and later, he became a French National holding a French Passport. On 16.04.1995, under an entry visa, he came down to India along with one Rev. Gunther Bright of German who had a tourist visa. They attended a Christian Conference organized by one Pastor M.Ananda Rao and Sharrow Ministers Union at Tadepalli Mandai, Guntur District, Andhra Pradesh. In the said conference, the petitioner's brother abused Hindu Gods, tore pictures of Hindu Gods, trampled upon them and later burnt them. The others in the conference were also induced to do so. The entire incident was covered in a video film. In respect of the said conference, a case in Crime No. 53 of 1995 was registered on the file of the Tadepalli Police Station under Sections 295 and 503(3), I.P.C., against Paster M.Ananda Rao and others. Charge sheet in the said case was laid by the police on completing investigation on 12.05.1995 before the learned Judicial Magistrate of I Class, Mangalagiri, Guntur District against Pastor Ananda Rao alone. In the mean while, the petitioner's brother rushed back to Chennai. The charge sheet was subsequently returned by the learned Judicial Magistrate directing to clarify as to why the others involved in the offence were not arrayed as accused. Since the petitioners brother and Mr. Gunther Bright left for London on 19.07.1995 and on 31.07 : 1995 respectively, they could not be brought to Court to face the prosecution. Thereafter, the learned Judicial Magistrate took cognizance of the offence in the case against Pastor M.Ananda Rao in C.C.No.77 of 1995. However, the case ended in acquittal. ii) In view of the above occurrence which created unrest and disharmony among two religions, the Bureau of Immigration recommended to the first respondent to issue a ban for future entry of the petitioner's brother and Mr. Rev. Gunther Bright. Based on the said recommendation the first @page-Mad129 respondent issued the impugned circular in the interest of the Nation's security, peace and harmony. The circular stipulates that the petitioners brother and others narrated in the circular should not be

allowed to enter India even on the strength of valid passport without prior clearance of the Government of India. iii) The counter further proceeds to say that the petitioners brother had knowledge of issuance of the impugned circular even in 1996. To circumvent the same, he obtained a new French Passport bearing No.03TE75095 from Senlis, France on 13.10.2003 in the name of Johan Rajiah s/o Rajiah and came to India on several occasions between - 007 by securing multiple entry visa from the High Commission of India at London. Though the petitioners brother claims to be a French citizen, he had obtained visa from the Indian High Commission at London without approaching the Indian Embassy at Paris, for the reasons best known to him. Since the petitioners brother had used the passport in the different name, namely, in the name of John Premkumar Rajiah s/o Rajiah his entry into India could not be noticed and prevented. Thus, he had cheated the Government and entered India on several occasions. Therefore, the contention of the petitioner that the petitioners brother was allowed to enter India during the interregnum period and the impugned circular was not implemented cannot be accepted. iv) In respect of the contention of the petitioner that his brother was never known as Johan Rajiah and he never changed his name, the records of the second respondent would clearly establish that on earlier occasions, the petitioner had entered India on a different passport in a different name whereas the present passport was obtained only in the year 2003. The change of the name of the petitioners brother in the passport and his visits to India in different names came to the knowledge of the second respondent when he received a complaint from one Venkata Prasad, of Andhra Pradesh. On the basis of the said complaint, when records were perused, it came to light that the petitioners brother had tried to circumvent the impugned circular and tried to enter India through Chennai Airport. That is why, he was refused permission to land and enter India and he was sent back by the very same flight. v) It is further contended in the counter that it is the sovereign power of the Government to obstruct a foreigner from entering India in the interest of the national security, peace, harmony etc. and the said power is absolute and not restricted in any manner. vi) It is further contended that the writ petition itself is not maintainable since the same has not been filed by the person allegedly aggrieved by the order. The petitioner cannot be stated to be aggrieved, and so, he has no locus standi to maintain this writ petition. For all these reasons, the respondents pray for dismissal of the writ petition. 6. I have heard the learned senior counsel Mr.V.T.Gopalan appearing for the petitioner and the learned Additional Solicitor General of India appearing for the respondents. I have also perused the records carefully. 7. Admittedly, the petitioner's brother is a foreigner. There is some dispute regarding the name of the petitioner's brother. It is the case of the petitioner that his brother's name is "Rajaiah John Premkumar" whereas according to the respondents, his name was originally "Rev Johan Rajaiah", but subsequently, he changed his name as "John Premkumar Rajaiah". Admittedly, he holds a French Passport and flew to India on the strength of a visa issued by the Indian High Commission in London. It is also the admitted

case that before passing the impugned order, no opportunity was given to him to submit his explanation. 8. The foremost contention of the learned Senior Counsel Mr.V.T.Gopalan, appearing for the petitioner is that, since the impugned circular order came to be passed without following the principles of natural justice, the same is vitiated. 9. Per contra, the learned Additional Solicitor General would contend that the concept of opportunity to satisfy the principles of natural justice is not available to a foreigner as the same is available only to the citizens of this Country. 10. To resolve the above question, it will be useful to refer to various judgments relied on by the learned counsel on either side and also the relevant statutes. 11. Admittedly, the impugned order came to be passed by the Central Government in exercise of the powers conferred under Section 3 of the Foreigners Act. The said provision @page-Mad130 reads as follows :"1. The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into(India) or their departure therefrom or their presence or continued presence therein. 2) In particular and without prejudice to the generality of the foregoing power, orders made under this Section may provide that the foreigner (a) shall not enter (India) or shall enter (India) only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed; b) shall not depart from (India) or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed; c) shall not remain in (India) or in any prescribed area therein; (cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at this disposal the cost of his removal from India and of his maintenance therein pending such removal d) shall remove himself to, and remain in, such area in (India) as may be prescribed; e) shall comply with such conditions as may be prescribed or specified : i) requiring him to reside in a particular place;

ii) imposing any restrictions on his movements; iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified; iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified; v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified; vi) prohibiting him from association with persons of a prescribed or specified description; vii) prohibiting him from engaging in activities of a prescribed or specified description; viii) prohibiting him from using or possessing prescribed or specified articles; ix) otherwise regulating his conduct in any such particular as may be prescribed or specified; f. shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions; g. shall be arrested and detained or confined : and may make provision (for any matter which is to be or may be prescribed) and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to his Act. 12. There is no express provision in the Act which provides for opportunity to a foreigner before any order is passed against him by the Central Government under Section 3 of the said Act. The above position was considered by a Constitution Bench of the Honourable Supreme Court in Hans Muller of Nurenburg v. Superintendent, Presidency Jain, Calcutta and others (AIR 1955 SC 367). In the said case, the Honourable Supreme Court has categorically held that a foreigners right to life is guaranteed in India under Article 21 of the Constitution of India whereas none of the fundamental rights guaranteed under Article 19 of the Constitution of India is available to a foreigner. While dealing with the scope of the Foreigners Act, in the context of Articles 19 and 21 of the Constitution of India, the Honourable Supreme Court in paragraph No. 36 of the said judgment has held as follows : "36. The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains........." ".......A foreigner has no such right and @page-Mad131

he can be expelled without any formality beyond the making of an order by the Central Government...... 40. In the case of expulsion, no idea of punishment is involved, at any rate, in theory and if a man is prepared to leave voluntarily he can ordinarily go as and when he pleases. But the right is not his. Under the Indian Law, the matter is left to the unfettered discretion of the Union Government and that Government can prescribe the route and the port or place of departure and can place him on a particular ship or plane.......... 41.........We have already examined the law making power in this behalf and its scope, and as to the third question, the law on this matter in India is embodied in the Foreigners Act which gives an unfettered right to Union Government to expel......" (Emphasis supplied) 13. Relying heavily on the above, the learned Additional Solicitor General of India would submit that since the power of the Government under Section 3 of the Foreigners Act is unfettered in any manner, there is no need at all to give any opportunity to a foreigner before passing any order against him under Section 3 of the Act. He would emphazise that the Supreme Court has held that no other formality need be followed while making an order under Section 3 of the Act. At the first glimpse there appears to be force in the said argument of the learned Additional Solicitor General of India. 14. But, Mr.V.T.Gopalan, the learned Senior Counsel, would submit that the law laid down by the Hon'ble Constitution Bench of the Supreme Court in Hans Muller of Nurenburg's case has got no application to the facts of the present case. He would submit that subsequent to the above judgment, the United Nations International covenant on Civil and Political rights came into being in the year 1966, and as per Article 13 of the said covenant, a foreigner is entitled to know the reasons for his expulsion and has right of representation before any order is passed. There can be no controversy that under Article 51 of the Indian Constitution, the Central Government has to foster respect for international law and treaty obligations in the dealings of organized people with one another. In view of the said constitutional obligation, there can be hardly any doubt that the Central Government should respect Article 13 of the United Nations International covenant on Civil and Political rights, which reads as follows :"An alien lawfully in the territory of a State Party to the present Covenant may expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before the competent authority or a person or persons especially designated by the competent authority." 15. A conjoint reading of the above provision along with Section 3 of the Foreigners Act, would make it clear that a foreigner is entitled to know the reasons for his proposed expulsion and also he is entitled for an opportunity to represent his case before the competent authority. Of course, where there are compelling reasons involving the national security etc., the said procedure need not be followed.

16. As rightly pointed out by the learned counsel for the petitioner, since there was no analogues provision like Article 13 of the United Nations International Covenant on Civil and Political rights when Hans Muller of Nurenburgs case was decided, the law laid down by the Constitution Bench cannot be made applicable to the cases arising subsequent to the advent of the United Nations International Covenant on Civil and Political Rights 1966. 17. After the advent of the United Nations International Covenant on Civil and Political Rights, 1966, the very same question came up for consideration in Louis De Raed v. Union of India (1991) 3 SCC 554 : AIR 1991 SC 1886 wherein, the Hon'ble Supreme Court, after referring to Hans Muller of Nurenburg's case has held in paragraph 13 of the judgment as follows : "13.The fundamental right of a foreigner is confined to Article 21 for right to life and liberty and does not include the right to reside and stay in this country as mentioned in Article 19(1)(e), as the said right is guaranteed, only to the citizens of this country. The power of the Government of India to expel a foreigner is absolute and unlimited and there is no provision in the Constitution fettering this discretion." As regards the right to be heard, there @page-Mad132 cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case and it is not claimed that if the authority concerned had served a notice before passing impugned order, the petitioners could have produced some relevant materials in support of their claim of acquisition of citizenship, which they failed to do in the absence of a notice. 18. Of course, no reference has been made about the International Covenant 1966 in the said judgment, but the Hon'ble Supreme Court has made a slight deviation from Hans Muller of Nurenburg's case so as to rule out the impossibility of opportunity being given to the foreign nationals before any order of expulsion is passed. The Hon'ble Supreme Court has indicated that though there cannot be any hard and fast rule about the manner in which the person concerned has to be given an opportunity, nevertheless, the Court has ruled by implication that the right to make representation on service of notice in appropriate cases does exist. 19. In Sarbananda Sonowal v. Union of India and another reported in (2005) 5 Supreme Court Cases 665 : AIR 2005 SC 2920, after elaborately dealing with the various provisions and after making a specific reference to United Nations International Covenant on Civil and Political Rights, 1966, the Hon'ble Supreme Court has held that in respect of an alien who is lawfully in India under a valid passport and visa, he is entitled to have an opportunity to represent before an order of expulsion is passed. The Hon'ble Supreme Court has held in paragraph 75 as follows :"75........Like the power to refuse admission this is regarded as an incident of the State's Territorial sovereignty. International law does not prohibit the expulsion en masse of aliens, (p.351). Reference has also been made to Article 13 of the International Covenant of 1966 on Civil and Political Rights which

provides that an alien lawfully in the territory of a State party to the Covenant may be expelled only pursuant to a decision reached by law and except where compelling reasons of national security otherwise require, is to be allowed to submit the reasons against his expulsion and to have his case reviewed by and to be represented for the purpose before the competent authority. It is important to note that this Covenant of 1966 would apply provided an alien is lawfully in India, namely, with valid passport, visa, etc., and not to those who have entered illegally or unlawfully. Similar view has been expressed in Oppenheim's International Law (Ninth Edn. 1992 in paras 400, 401 and 413). The author has said that the reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy, competent to exclude aliens from the whole or any part of its territory. In para 413 it is said that the right of States to expel aliens is generally recognised. It matters not whether the alien is only on a temporary visit, or has settled down for professional business or any other purposes in its territory, having established his domicile there. A belligerent may consider it convenient to expel all hostile nationals residing or temporarily staying within its territory, although such a measure may be very harsh on individual aliens, it is generally accepted that such expulsion is justifiable. Having regard to Article 13 of the International Covenant on Civil and Political Rights, 1966, an alien lawfully in a State's territory may be expelled only in pursuance of a decision reached in accordance with law." 20. In the above judgment, the Honourable Supreme Court has obviated doubt, if any, and has held in clear terms that after the advent of the International Covenant on Civil and Political Rights, 1966, any order of expulsion of a foreigner from India who has a valid passport and visa could be passed only after affording sufficient opportunity to him except in exceptional cases where security of the nation would be put to perils imminently if such an order of expulsion is not passed forthwith without notice.

21. In Hasan Ali Aihany v. Union of India and others reported in (2006) 2 Supreme Court Cases (Cri) 33 : AIR 2006 SC 1714, while dealing with an identical question, a Division Bench of the Hon'ble Supreme Court has taken a similar view. In paragraph 8 of the judgment, the Hon'ble Supreme Court has held as follows : "8. Having regard to the facts and circumstances of the case, particularly, having regard to the fact that the petitioner has entered this country legally upon the single entry permit issued to him, it is only fair that the competent authority must inform him the reasons for his deportation. If such a decision is taken, the petitioner must be @page-Mad133 given an opportunity to submit his representation against his proposed expulsion. The competent authority may thereafter, consider his representation and pass appropriate order. As observed by this Court, this procedure may be departed from for compelling reasons of national security, etc. In the instant case, we have not so far noticed any fact which may provide a compelling reason for the State not to observe this procedure." 22. But the learned Additional Solicitor General would submit that since Sarbananda Sonowal's case was decided by a coram of three Hon'ble Judges and Hasan Ali Aihany's case was decided by a coram of two

Hon'ble Judges of the Supreme Court, the law laid down in those two judgments cannot be binding precedents as the law laid down by the constitutional bench in Sarbananda Sonowal's case alone is binding. I am not persuaded by the said argument for the simple reason that, as I have already stated, the judgments in Sarbananda Sonowal's case and Hasan Ali Aihany's case were subsequent to the advent of the United Nations International Covenant on Civil and Political Rights, 1966 whereas the judgment of the Constitution Bench was prior to the said covenant and so, the law laid down by the Constitutional Bench in Hans Muller of Nurenburg's case cannot be made applicable to the post covenant cases. 23. The learned Additional Solicitor General of India has relied on a judgment of a learned single Judge of this Court (Hon'ble Justice Shivaraj Patil, as he then was) wherein, following the judgment of the Constitution Bench in Hans Muller of Nurenburg's case, has held that the Central Government is vested with absolute and unfettered discretion and unrestricted right to expel a foreigner and there is no need to offer any opportunity to a foreigner before an order is passed, as the principle of natural justice can have no application to a foreigner. 24. The learned Senior Counsel Mr.V.T.Gopalan, relies on a judgment of another single Judge of this Court in an unreported case in W.P.No.24647 of 2008 wherein by order dated 23.10.2008, the learned Judge has held that the competent authority must inform the foreigner the reasons for his deportation and before passing the order of deportation, the foreigner should be given an opportunity to submit his representation as against the proposed deportation and such representation submitted by the foreigner has to be considered before passing any order. In the said case, the learned Judge has followed Sarbananda Sonowal's case and Hasan Ali Aihany's case. 25. From all the above judgments of the Honourable Supreme Court and this Court, I have to necessarily hold that before any order of expulsion under Section 3 of the Foreigners Act is passed, unless there are compelling reasons involving threat to the security of the nation, the foreign national is entitled for notice and an opportunity for making representation. 26. In the case on hand, in the counter, in respect of opportunity of being heard, it has been stated as follows : "The sovereign power of the Indian Union can be invoked to ban the entry of any foreigner into India and the Government need not explain or give an opportunity to such foreigner to impose such ban and the lack of power as stated by the petitioner is unsustainable in law. It is not for the petitioner to suggest which act of the Government will be prudent in the given circumstances. It is respectfully submitted that there is absolutely no infringement of any fundamental rights of the petitioners brother, as he being a foreigner does not have any fundamental right. Hence, ground (a) and (o) have no merits in them. The Union of India need not state any reason to ban the entry of a foreigner. It is enough if it is satisfied that there exists some basis for taking such decision for in such matters the Government is exercising its Sovereign Powers." 27. Reiterating the above stand taken in the counter, the learned Additional Solicitor General would submit that it is the absolute and unfettered Sovereign Power of the Government; in exercise of the

same only, the impugned order has been passed and there is no need to offer any opportunity to a foreigner before passing any order regulating or banning the entry of a foreigner. 28. As concluded above, if the order under challenge is in the nature of an order of expulsion of a foreigner from Indian soil, necessarily notice should have been given by the Central Government to the foreigner to afford an opportunity to him to make representation. The entire argument of Mr.V.T.Gopalan, the learned Senior Counsel, @page-Mad134 was under the premise that the impugned order is an order of expulsion. But I am unable to subscribe to the said contention. Admittedly, the petitioner's brother was not in Indian soil and so, the impugned order cannot be construed to be an order of expulsion at all. As rightly pointed out by the respondents in the counter, the impugned order is only an order banning the entry of the petitioners brother into India without reference to the Central Government. Nowhere it has been held in any of the judgments cited supra that before passing any order under Section 3 of the Foreigners Act r/w Clause 3 of the Foreigners Order 1948 such a notice should be given to the foreigner and he should be afforded an opportunity of being heard before passing an order prohibiting the entry of the foreigner. As held by the Hon'ble Supreme Court in Hans Muller v. Supdt., Presidency Jail, Calcutta's case (cited supra) AIR 1955 SC 367 for passing an order either regulating or banning the entry of any foreigner into India, it is the absolute and unfettered discretion of the Central Government. The said sovereign power is unlimited and unrestricted. The United Nations International Covenant on Civil and Political Rights 1966 does not speak of any such opportunity to be given to any foreign national in respect of prohibitory or regulatory orders. As I have already stated, in Gilles Preifer v. The Union of India and others, Sarbananda Sonowal's case and Hasan Ali Aihany's case, the Honourable Supreme Court has held in clear terms that the sovereign power of the central Government is absolute and has further held that only in the matter of expulsion of a foreign national who has already been allowed to be in Indian soil, in view of the International Covenant 1966, such a notice and opportunity should be given to him before expelling him. But in respect of an order banning the entry of a national into India, the Central Government need not state any reason as to why such ban order is imposed on him and it need not give any opportunity or notice to the foreign national. The Constitution of India does not contain any provision obliging the Central Government to issue notice affording an opportunity. The right to life guaranteed under Article 21 which is available to any foreign national does not engulf into its ambit a right to a foreign national to compel the Central Government either to allow him to enter into India or to afford an opportunity to make representation or to state the reasons for such a ban. Therefore, the contention of the learned Senior Counsel that the impugned order is vitiated on the ground that the same came to be passed without affording any opportunity to the petitioner deserves only to be rejected. 29. The next contention is that there are no grounds satisfying paragraph No.3 of the Foreigners Order 1948 impelling the first respondent to issue such an order. As I have already stated, a foreigner does not have any right to demand the Central Government to state the grounds on which the order banning his entry into India is passed. The Honourable Supreme Court has held in categorical terms that it is the

absolute and unfettered sovereign power of the Central Government. Therefore, the said contention is also rejected. 30. Yet another ground of attack is that the impugned order is a non-speaking order and so the same is vitiated. In my considered opinion, the purpose of insisting for a speaking order is to put the adverse party on notice as to the grounds on which the adverse order came to be passed. But, in the instant case, since there is no obligation on the part of the Government to state the reasons, there is no need to pass any speaking order. Further, when the national interest in the matter of security, peace and harmony is the primary concern of the Government, while taking a decision to ban the entry or to regulate the entry of a foreign national into this nation, one cannot expect the Government to make the reasons public by passing a speaking order as the same would not be in the interest of the nation. Thus, the concept of speaking order is foreign to a foreigner whose entry into this country is sought to be prohibited. 31. For the foregoing discussions, I find no reason to quash the impugned circular order. But, at the same time, it requires to be clarified that, admittedly, the impugned order is not an absolute ban imposed on the petitioners brother from visiting India. The order only stipulates that visa, in any form, should not be issued in favour of the brother of the petitioner without prior reference to the Government of India. The visa issued to him by the Indian High Commission at London on 3.11.2003 has already expired on 2.11.2008 itself. If the petitioners brother is really interested to visit India for genuine reasons without disturbing in any manner @page-Mad135 the peace, harmony and security of the nation, he is at liberty to apply for visa afresh in which case, the High Commission shall make a reference to the Central Government and subject to the decision of the Central Government, the High Commission shall issue appropriate order. 32. In the result, the writ petition fails and the same is accordingly dismissed however, with the clarification indicated above. No costs. Petition dismissed. AIR 2009 MADRAS 135 "Ar. Vijay Garg v. Ar. P. Satheeshkumar" MADRAS HIGH COURT Coram : 2 ELIPE DHARMA RAO AND M. VENUGOPAL, JJ. ( Division Bench ) Ar. Vijay Garg and Anr. v. Ar. P. Satheeshkumar and Ors. W.A. No. 1030 of 2007, D/- 9 -3 -2009. Architects Act (20 of 1972), S.3(3)(a) and S.3(3)(c), S.5 - Council of Architecture Rules (1973), R.2(d), R.3, R.4, R.6 - Constitution of India, Art.226 - WRITS - ELECTION - Election of Council of Architecture Appointment of Returning Officer - Act and Rules mandate appointment of Returning Officer only for

election u/S.3(3)(c) of five persons to the council from themselves by heads of architectural institutions No such obligation is created on Central Govt. for elections contemplated u/S.3(3)(a) of five architects to council - Responsibility of holding elections u/S.3(3)(a) is solely on Indian Institute of Architects - No mandamus can therefore be issued to direct appointment of Returning Officer for election u/S.3(3)(a) In case of abuse of process of election, redressal mechanism is provided in Act itself. 2005 (2) Mah LJ 206 (Bom), Dissented from. Cases Referred : Chronological Paras 14 (Paras 11, 12, 13, 14)

2005 (2) Mah LJ 206 (Bom) (Dissented from)

P.R. Raman, for Appellants; A. Thiagarajan, R. Thiagarajan, S.C., for M/s. M. Lakshmipathi, R. Ramakrishnan, ACGSC, T.S. Gopalan, S.C. for T.S. Sivagnanam, M.S. Govindarajan, for Respondents. Judgement ELIPE DHARMA RAO, J. :- For the sake of convenience and easy reference, the parties are referred to as per their ranking in the writ petitions. 2. Both these matters pertain to the election to fill up five vacancies of Member posts to the third respondent/Council of Architecture. The writ petitioners have filed the writ petitions before the learned single Judge, praying to issue a Writ of Mandamus to the Union of India, represented by its Secretary to Government, Ministry of Human Resources and Development to appoint Returning Officer to conduct the election to fill up the five vacancies in the second respondent Council under Section 3(3)(a) of the Architects Act, 1972 among the Members of the Indian Institute of Architects, Chennai. 3. In their writ petitions, the writ petitioners have contended that they are the Architects registered with the Council of Architecture, New Delhi and they are also the members of the Indian Institute of Architects. Pursuant to the notice issued by the respondents 4 and 5 who are the appellants herein, the writ petitioners have filed their nominations for the posts of Members and since they were rejected by the 6th respondent/the Scrutineer appointed for the purpose, they have filed the writ petitions. The writ petitioners would impart motives to the respondents 4 and 5 therein, who are the appellants herein and also to the 6th respondent/the Scrutineer. As the learned single Judge has allowed the said writ petitions, the respondents 4 and 5 therein have come forward to file these writ appeals. 4. We have heard Mr.P.R.Raman, learned counsel for the appellants in both the appeals; Mr.A.Thiagarajan, learned counsel for the first respondent in W.A.No. 1030 of 2007; Mr.R.Thiagarajan, learned senior counsel for the first respondent in W.A.No. 1031 of 2007; Mr.R.Ramakrishnan, learned counsel for the second respondent in both the appeals; Mr. T.S.Gopalan, learned Senior Counsel for the third respondent in both the appeals and Mr.M.S.Govindarajan learned counsel for the fourth respondent in both the appeals. 5. While on the part of the writ petitioners, it had been strenuously argued that until and unless a Returning Officer is appointed by the Government of India, no free and fair elections would be

conducted, on the part of the Government of India it has been contended that the question of appointing the Returning Officer for the elections under Section 3(3)(a) of the Architects Act, @page-Mad136 1972 will not arise since the Architects Act and the Council of Architecture Rules mandate appointment of Returning Officer only for the election under Section 3(3)(c) of the Act. The appellants would also submit that there is no need to appoint any Returning Officer by the Government of India and the writ petitions have been filed by the petitioners under misconception of law and facts and would pray to set aside the order passed by the learned single Judge. 6. Upon hearing all the parties, the question that arises for consideration in these appeals is 'whether the Government of India could be directed to nominate a Returning Officer for the election of five architects as per Section 3(3)(a) of the Architects Act, 1972'. 7. For better appreciation of the case, we shall now extract Section 3 of the Architects Act, 1972, which reads as follows : "3 (1) The Central Government shall, by notification in the Official Gazette, constitute, with effect from such date as may be specified in the notification, a Council to be known as the Council of Architecture, which shall be a body corporate, having perpetual succession and a common seal, with power to acquire, hold and dispose of property; both movable and immovable, and to contract, and may by that name sue or be sued. (2) The Head Office of the Council shall be at Delhi or at such other place as the Central Government may, by notification in the Official Gazette, specify. (3) The Council shall consist of the following members, namely :(a) five architects possessing recognised qualifications elected by the Indian Institute of Architects from among its members; (b) two persons nominated by the All India Council for Technical Education established by the Resolution of the Government of India in the late Ministry of Education No.F. 16-10/44-E.III, dated the 30th November, 1945; (c) five persons elected from among themselves by heads of architectural institutions in India imparting full time instruction for recognised qualifications; (d) the Chief Architects in the Ministries of the Central Government to which the Government business relating to defence and railways has been allocated and the head of the Architectural Organisation in the Central Public Works Department, ex officio; (e) one person nominated by the Central Government; (f) an architect from each State nominated by the Government of that State;

(g) two persons nominated by the Institution of Engineers (India) from among its members; and (h) one person nominated by the Institution of Surveyors of India from among its members. Therefore, while election of five architects to the Council are to be elected by the Indian Institute of Architects from among its members as per Section 3(3)(a), the five persons to the Council be elected from among themselves by heads of architectural institutions in India imparting full time instruction for recognised qualifications, as per Section 3(3)(c). Both these sub-clauses (a) and (c) have been crafted for two different specific purposes and the cases on hand pertain to the election of five posts of Members to the Council as has been contemplated under Section 3(3)(a) above. 8. Under Section 5 of the Act, the mode of elections has been contemplated and for easy reference, we extract the same here-under : "5(1) Elections under this Chapter shall be conducted in such manner as may be prescribed by rules. (2) Where any dispute arises regarding any such election, the matter shall be referred by the Council to a Tribunal appointed by the Central Government by notification in the Official Gazette in this behalf, and the decision of the Tribunal shall be final : Provided that no such reference shall be made except on an application made to the Council by an aggrieved party within thirty days from the date of the declaration of the result of the election. (3) The expenses of the Tribunal shall be borne by the Council." 9. From the reading of this Section 5, it is clear that the elections shall be conducted in the manner prescribed by rules and if there is any dispute regarding such election, the same shall be referred by the Council to a Tribunal appointed by the Central Government and the decision of the Tribunal shall be final. 10. Council of Architecture Rules 1973 @page-Mad137 provides for the manner in which the elections shall be conducted. Rule 2(d) of the Council of Architecture Rules, 1973 defines the term "Returning Officer" as 'any officer appointed as such by the Central Government for the purpose of these Rules'. Rules 3 and 4 contemplate the procedure to be followed for the election to the Council under clause (a) of sub-section (3) of Section 3, which is the subject on hand. Rules 3 and 4 of the Council of Architecture read thus : "3. Representatives of the Indian Institute of Architect (1) The President shall, not later than sixty days before the date of occurrence of vacancy by the expiry of the term of office of a member, send intimation thereof to Central Government who shall, not later than forty-five days before the date of occurrence of the vacancy, forward a notice by registered post to

the Secretary of the Indian Institute of Architects requesting him to hold an election by a date not later than the date specified in the notice. (2) In the case of a vacancy under subsection (2) or sub-section (3) of section 6 or any other vacancy, the President shall notify the Central Government as soon as possible the occurrence of such vacancy and the Central Government shall thereupon forward a notice by registered post to the Secretary of the Indian Institute of Architects requesting him to hold an election to fill that vacancy by a date not later than the date specified in the notice. (3) For the purpose of the first election under clause (a) of sub-section (3) of Section 3, it shall be sufficient if the Central Government forward a notice by registered post to the Secretary of the Indian Institute of Architects requesting him to hold the election by a date not later than the date specified in the notice. 4. Intimation of name of elected person to Central Government The name of the elected person shall be intimated by the Secretary of the Indian Institute of Architects to the Central Government who shall take steps to publish the name of the elected person in the Official Gazette." That's all what has been mandated under the Rules regarding the election to the Council under Section 3(3)(a). From the reading of the above Rules 3 and 4, it is clear that the role of the Central Government is very limited insofar as the election under Section 3(3)(a) is concerned and the responsibility to conduct the election under Section 3(3)(a) has been fixed on the President of the Council of Architecture and the Secretary of the Indian Institute of Architects shall intimate the name of the elected person to the Central Government, whereupon the Central Government shall publish the name of the elected person in the Official Gazette. Whereas from Rule 5 onwards, the procedure for the election to the Council under Section 3(3)(c) has been mandated, where-under Rule 6 reads thus : "6. Returning Officer - The Returning Officer shall call upon all the head of architectural institutions in India to elect such number of members as are referred to in clause (c) of sub-section (3) of Section 3 and in the case of first election, five members shall be elected." 11. On a conjoint reading of Sections 3(3)(a) and 3(3)(c), it is clear that while the responsibility of holding election under Section 3(3)(c) of the Architects Act is on the Council of Architecture with the assistance of the Returning Officer appointed by the Government of India, the responsibility of holding the elections under Section 3(3)(a) of the Act is solely on the Indian Institute of Architects. Even in the counter affidavit filed by the first respondents, who are the writ petitioners, they have stated that on all earlier occasions, it is the IIA which is conducting the elections under Section 3(3)(a). The term Returning Officer - mentioned in Rule 6 of the Council of Architecture Rules, pertain only to the election of five persons from among themselves by heads of architectural institutions in India imparting full time instruction for recognized qualifications, as has been defined under Section 3(3)(c) and it is not for the election mentioned in Section 3(3)(a). Had the Legislature thought that there is every need of appointing the Returning Officer by the Government of India even for the elections under Section 3(3)(a). Rule 6

would have been more wider covering even the election under Section 3(3)(a) of the Act. But, it is not so and the Legislature is specific regarding the appointment of Returning Officer only with regard to the election contemplated under Section 3(3)(c). Therefore, what has not been contemplated under the Act and the Rules cannot be threshed on the Government @page-Mad138 of India, by issuing such a Writ of Mandamus. While for the election under Section 3(3)(c), an obligation is created on the Central Government to appoint a Returning Officer, no such obligation is created on the Central Government insofar as the election under Section 3(3)(a). 12. For issuing the Writ of Mandamus, the legal obligation on the part of the respondent, the demand on the part of the petitioner and the refusal or non-consideration of such demand by the respondent must be there. In the case on hand, no such legal obligation is created on the Government of India to appoint the Returning Officer. 13. There is no doubt that there is force in the arguments advanced on the part of the writ petitioners that there is every possibility of abuse of the whole process of election by the concerned, since there were incidents wherein the person who conducted the elections himself has adjudged himself as the winner. What is to be done in such cases has also been contemplated under Section 5(2) of the Act, providing remedy for such aggrieved persons, to approach the Tribunals constituted for this purpose by the Central Government. 14. But, a judgment of the learned single Judge of the Bombay High Court delivered in Appeal from Order No.607 of 2004, dated 1.10.2004 Reported in 2005 (2) Mah LJ 206 [Billimoria Jehan Bux Tehmuras and others v. The Indian Institute of Architects and another] was pressed into service on the part of the writ petitioners, wherein the learned single Judge of the Bombay High Court has observed that because of the long legal procedure before the Tribunals in such election disputes, the time of office of such illegally elected body was completing its tenure and walking away coolly and therefore the Central Government must take the responsibility of appointing the Returning Officer and conduct the elections in all cases. We are unable to accept the said view taken on the part of the learned single Judge of the Bombay High Court, for the simple reason that no such obligation has been created on the part of the Central Government insofar as the election under Section 3(3)(a) of the Act is concerned and the redressal mechanism for the election disputes has also been very well contemplated under the Act itself. 15. For all the above discussions, holding that the very filing of the writ petitions has no basis and that the learned single Judge has erred in allowing the writ petitions, since being contrary to the provisions of the Act and the Rules, both these writ appeals stand allowed, setting aside the common order passed by the learned single Judge. No costs. Appeal allowed. AIR 2009 MADRAS 138 "L. Yuvaraj v. Kirubaarani Devi" MADRAS HIGH COURT

Coram : 1 G. RAJASURIA, J. ( Single Bench ) L. Yuvaraj v. Kirubaarani Devi. C.R.P. (PD) No. 49 of 2009 M. P. No. 1 of 2009, D/- 27 -2 -2009. (A) Hindu Marriage Act (25 of 1955), S.24 - Evidence Act (1 of 1872), S.112 - MAINTENANCE - EVIDENCE Interim maintenance - Simply because husband disowns paternity of child imputing adultery on part of wife - Will not handicap family Court in awarding interim maintenance - Child born during wedlock of parties - Husband disputing paternity of child - Burden lies on him to prove his plea during enquiry in main petition for evidence - Liability of husband to pay interim maintenance to his minor child subsists. (Paras 7, 8, 9) (B) Hindu Marriage Act (25 of 1955), S.24 - Evidence Act (1 of 1872), S.106 - MAINTENANCE - EVIDENCE Interim maintenance - Income of husband - Proof - There is no necessity that every citizen has to file Income-tax returns - No reason given by husband as to why he has not filed any of copies of income tax returns before lower Court to highlight his actual income - Adverse inference could be drawn to limited extent that husband did not want to disclose his real income - Wife coming forward with categorical statement that she is not working any where and earning - Burden of proof is on husband to prove place in which she is working and earning - Award of Rs. 5,000/- towards maintenance of wife and minor child - Not excessive or illegal. (Paras 11, 12) Cases Referred : (2003) 10 SCC 228 Chronological Paras 6

Judgement ORDER :- Inveighing the order 23-10-2008 passed in I.A. No. 163 of 2007 in HMOP No. 89 of 2007 by the Family Court, Salem, @page-Mad139 this civil revision petition is focussed. 2. The gist and kernal, the pith and marrow of the relevant facts, which are germane for the disposal of this revision petition, would run thus : The revision petitioner herein filed the FCOP. No. 89 of 2007 before the Family Court, Salem, seeking divorce under Section 13(1)(1-a) of the Hindu Marriage Act on the ground of cruelty. The respondent filed the LA. No. 163 of 2007 under Section 24 of the Hindu Marriage Act seeking interim maintenance for herself and in favour of the minor child born to the petitioner and the respondent. During enquiry, the revision petitioner examined one Yuvaraj as R.W. 1. Ultimately the Family Court awarded Rs. 5000/per month payable by the revision petitioner in favour of the respondent towards interim maintenance

of the respondent and the minor child, in addition to having awarded a sum of Rs. 5000/- towards litigation expenses payable by the husband to the wife. Being disconcerted and aggrieved by the order of the Family Court, this revision is focussed on various grounds, inter alia thus : The order of the Family Court is against law and weight of evidence, as without any material evidence to prove the financial wherewithal of the husband, he was directed to pay such a huge sum as interim maintenance and costs. Even though the revision petitioner disowns the minor child as that of his, nonetheless the Family Court simply ordered maintenance to be paid by the revision petitioner in favour of the respondent and the minor child. The Family Court failed to take into account that every citizen had to file nil income tax returns and that simply because Income-tax returns are alleged to have been filed by the revision petitioner, there is no presumption that he had huge income. 3-4. Despite printing the name of the counsel for the revision petitioner and the name of the respondent, no one appeared. 5. A poring and perusal of the relevant records including the copy of the order of the Family Court would amply make the point clear that the relationship between the revision petitioner and the respondent is an admitted one; however the revision petitioner would disown his paternity towards the minor child; he would also contend that his monthly income is only Rs. 1,500/- and that the respondent is earning a sum of Rs. 4,500/- per month. 6. At this juncture my mind is redolent and reminiscent of the following decision : (2003) 10 SCC 228 Amarjit Kaur v. Harbhajan Singh, an excerpt from it would run thus : 8. Section 24 of the Hindu Marriage Act, 1955 empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent. 7. The above said decision would squarely be applicable to the facts of this case. Simply because the husband disowns the paternity of the child imputing adultery on the part of the wife, virtually, the Family Court is not handicapped in awarding interim maintenance. The contentious issues are to be decided only in the main FCOP and not in the interim application. 8. I would like to refer to Section 112 of the Indian Evidence Act, which is extracted hereunder for ready reference : "112. Birth during marriage, conclusive proof of legitimacy. - The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

9. A bare perusal of the averments in the FCOP itself would indicate and evince, that during the wedlock of the petitioner and respondent alone the child was born. As such, while considering the interim application for maintenance, the contention of the revision petitioner that the child was not born to him cannot be an embargo for awarding maintenance payable by the revision petitioner in favour of the minor child and it is for the revision petitioner to prove @page-Mad140 his plea during the enquiry in the main FCOP. As such, the liability of the revision petitioner to pay interim maintenance to his minor child subsists, as correctly and appositely held by the lower Court. 10. Ground No. 10 of the grounds of revision is extracted here under for ready reference :"10. The Court below failed to see that every citizen had to file at least NIL income returns and that filing tax returns would not pre-suppose a huge income." 11. I am at a loss to understand as to how such a ground could be set out before this Court. A mere reading of the relevant provisions of the Income-tax Act would demonstrate and indicate that there is no necessity that every citizen had to file income-tax returns. If at all the income of a person exceeds a particular limit, only such person should file return irrespective of the fact whether income-tax is due and payable or not relating to an assessment year. As such, the revision petitioner's implied admission would evidence that he is an income-tax assessee and there is no shard or shred of reasons available as to why he has not filed any of the copies of the returns before the lower Court to highlight his actual income. Section 106 of the Indian Evidence Act would warrant the revision petitioner to produce such evidence, but he failed to do so. Hence, in such circumstance, adverse inference could rightly be drawn to the limited extent that the revision petitioner did not want to disclose his real income. Whereas, the respondent/wife would come forward with the categorical statement that she is not working anywhere and earning. In such a case, the burden of proof is on the petitioner to prove the place in which she is working and earning. In the absence of such evidence, I could see no infirmity in the order passed by the lower Court. 12. The affidavit of the wife, accompanying the LA. No. 163 of 2007, would display and, indicate that the petitioner is doing business and earning. We cannot expect a hapless and helpless wife and child to run from pillar to post to gather particulars relating to the income of the husband. The Family Court considering the over all circumstance involved in the case felt that the husband i.e. the revision petitioner is capable of paying a sum of Rs. 5,000/- per month as interim maintenance towards the respondent and the minor child and such a conclusion cannot be labeled or dubbed as unreasonable or illegal, warranting interference by this Court. 13. It is a common or garden principle under the Matrimonial Law that a wife is entitled to live in commensurate with the status of her husband. The wife would require at least a sum of Rs. 100/- per day, so as to meet her creature comforts; to keep her body and soul together; to keep the wolf from the door and to keep the pot boiling and as such, she would require at least Rs. 3000/- per month, which

includes her medical and transport expenses. Similarly a minor child cannot live without a sum of Rs. 2000/- per month in this present day cost of living and no more elaboration in this regard is required. 14. Here in this case my above discussion supra would exemplify that the family of the revision petitioner cannot be termed as a poor family or reeling under penurious, impecunious and cash strapped situation. Hence, I could see no merit in the revision petition. 15. The awarding of a sum of Rs. 5000/- towards cost of litigation could be reduced to Rs. 3000/- as in a matter of this nature, awarding such amount would meet the ends of justice. 16. In the result, the civil revision petition is partly allowed only to the extent of reducing the cost of litigation from Rs. 5000/- to Rs. 3000/- and the rest of the Family Court's order would require no interference. No costs. Consequently, connected miscellaneous petition is closed. Petition partly allowed. AIR 2009 MADRAS 140 "A. Sankar v. Arulmighu Angalaparameswari" MADRAS HIGH COURT Coram : 1 G. RAJASURIA, J. ( Single Bench ) A. Sankar v. Arulmighu Angalaparameswari. S.A. No. 507 of 2008, D/- 18 -3 -2009. (A) Transfer of Property Act (4 of 1882), S.106 (as amended by Act 3 of 2003) - LEASE - AMENDMENT Quit notice - Suit filed long after 15 days from date of receipt of notice - Notice not invalid in view of S.106 as amended - S.106 amended during pendency of case - Applies to pending proceedings also. (Para 9) (B) Madras City Tenants Protection Act (3 of 1922), S.11, S.3(1)(f) (as inserted by Tamil Nadu Amending Act 2 of 1996) - TENANCY - LEASE - AMENDMENT @page-Mad141 Lease of temple - Provision of said Act not applicable to properties concerning religious institution by virtue of Amendment. (Para 10) Cases Referred : (2003) 1 Mad LW 656 1974 TNLJ 28 7 Chronological Paras 7

1974 TNLJ 440 7 Judgement

JUDGMENT :- This second appeal is focussed by the defendant, animadverting upon the judgment and decree dated 27-10-2005 passed by the learned Additional District Judge, Fast Track Court No. 2, Chennai in A.S. No. 406 of 2004 confirming the judgment and decree dated 30-6-2004 passed by the learned I Assistant Judge, City Civil Court, Chennai in O.S. No. 5203 of 1997, which was one for eviction of the defendant from the suit property; payment of arrears of past rent and also damages for use and occupation till delivery of possession of the suit property by the defendant. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. The respondent/plaintiff herein filed the suit as against the defendant/appellant seeking the following main reliefs : - directing the defendant to quit and deliver vacant possession of the schedule mentioned property herein to the plaintiff. - to pay a sum of Rs. 3,492/- being the arrears of rent from 1st February 1994 to 31-1-1997. - to pay damages at the rate of Rs. 97/- per month from the date of termination, i.e. to the date of handing over possession. Whereas the defendant entered appearance and filed the written statement resisting the suit on various grounds including the one that as per Section 11 of the City Tenants Protection Act termination notice was not given and that the notice issued under Section 106 of the Transfer of Property Act was inadequate. The trial Court framed the relevant issues. 3. During trial, one Mr. Balasubramanian was examined as P.W. 1, and Exs. A1 to A3 were marked. On the defendant's side, no one was examined and no document was also marked. 4. Ultimately the trial Court decreed the suit for evidence and also ordered payment of arrears of past rent and also damages for use and occupation till delivery of possession by the defendant in favour of the plaintiff. Being aggrieved by the judgment and decree of the trial Court the defendant preferred appeal before the learned Additional District Judge, Fast Track Court No. 2, Chennai for nothing but to be dismissed by the Appellate Court confirming the judgment and decree of the trial Court. Being disconcerted by and dissatisfied with the judgments of both the Courts below, this Second Appeal is focussed by the defendant on various grounds and also suggesting the alleged following substantial questions of law in the memorandum of grounds : "1. Whether the Courts below is right in holding that in view of Act 2/96 notice under Section 106 of the Transfer of Property Act is not necessary to the appellant herein? 2. Is not a notice under Section 106 of the Transfer of Property Act is necessary in a suit filed for possession by the temple?" 5. Despite printing the names concerned, none appeared.

6. A plain pouring over and perusal of the typed set of papers including the certified copies of the judgments of both the Courts below would evince and display, demonstrate and convey that the plaintiff served proper notice under Section 106 of the Transfer of Property Act and a Notice under the Madras City Tenants Protection Act, 1921 was not necessary. 7. The present appeal is focussed mainly questioning the sufficiency of the Notice under Section 106 of the Transfer of Property Act. Admittedly, Ex. Al dated 1-1-1997 the termination notice under Section 106 of the Transfer of Property Act was despatched by the plaintiff terminating the tenancy by the end of January 1997, as indubitably tenancy was for residential purpose. However, the notice was received by the defendant only on 20-1-1997 and accordingly, if calculated, by the end of January, 15 days clear notice was not available. However, the lower Court placing reliance on the following decisions, viz., (i) 1974 TNLJ page 440 (Neelambal and another v. S. Ramalingam) (ii) 1974 TNLJ page 28 (Janakiraman v. Radhey Shyam). (iii) 2003 ILW 656 (Palaniswamy Swaminathan L. Viswanathan v. Sri Vysaria @page-Mad142 Madam Kodambakkam rep. by Matadhipathy Sri Vidyapayonnidhi Theertha Swamigal). clearly rendered its verdict that even though from the date of receipt of the said notice, there was no clear 15 days' notice, nonetheless, as per the evidence available on record the said notice was sent by R.P.A.D. much earlier to it, so to say, on 9-1-1997 itself. As such, in para Nos. 10 and 11, the trial Court considering the precedents of this Court held that Section 106 notice was correct. The first appellate Court also considering the pro et contra, gave its verdict to the effect that the findings given by the trial Court were correct. 8. In the memorandum of second appeal, nothing has been highlighted as to how the view taken by the trial Court confirmed by the Appellate Court, was erroneous and no decision contrary to the decisions relied on by the lower Court was also referred to in the ground of second appeal. The trial Court, placing reliance on the precedents of this court, held that the notice under Section 106 of the Transfer of Property Act was valid even though there was no clear 15 days' notice from the date of receipt of such notice by the defendant. 9. I could see no question of law much less substantial question of law having arisen in this case. I would like to point out that Section 106 of the Transfer of Property Act itself was amended by virtue of Amendment Act Transfer of Property (Amendment Act), 2002 and the amended Section 106 would run thus : "106. Duration of certain leases in absence of written contract or local usage :(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on

the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that subsection." As per the said amended provision, if it is viewed, it is clear that the suit was filed only on 4th March 1997, so to say, long after 15 days from the date of receipt of said notice on 20-1-1997 and that itself would reveal that it is a curative factor. However, the fact remains that Section 106 was amended during the pendency of the case before the trial Court and the said Amendment Act is made to apply to pending proceedings also. At this juncture, I would like to extract hereunder Section 3 of the Transfer of Property (Amendment) Act, 2002 (3 of 2003) as under : Section 3 of the Transfer of Property (Amendment) Act. 2002 (3 of 2003) : "Transitory provision :- The provisions of Section 106 of the Principal Act, as amended by Section 2, shall apply to a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act; and b) all notices which have been issued before the commencement of this Act but where no suit or proceeding has been filed before such commencement". Wherefore, it is clear that as per Section 106 Amendment Act, also, the termination notice sent under Section 106 of the Transfer of Property Act by the plaintiff cannot be found fault with. 10. Incidentally, I would like to point out that the benefit under the Madras City Tenants' Protection Act, 1921 are not available to the defendant for the reason that by virtue of Tamil Nadu Amending Act 2 of 1996, clause (f) was inserted in Section 3(1) of the said Act and it runs as under : 3. This Act shall apply :(a) and (b)........................ Provided that nothing contained in this Act shall apply to tenancies of land owned. (a) to (e) ........................ "(f) by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion."

The above amendment, which came into force with effect from 5-1-1996, would @page-Mad143 clearly render the defendant herein not to invoke any provision of the Madras City Tenants Protection Act including Section 11 of the said Act in its favour as the Act itself is not applicable to the properties concerning religious institutions or religious charities like the plaintiff. It is therefore crystal clear that this suit has been filed only after 1996 and the defendant cannot try to reap the benefits under the Madras City Tenants' Protection Act, 1921, even though, in the Second Appeal that point was not urged specifically. 11. In this case, my discussion supra would indicate that there is no question of law much less substantial question of law have arisen. 12. In the result, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. Petition dismissed. AIR 2009 MADRAS 143 "Raj Kumar Khemka v. Union of India" MADRAS HIGH COURT Coram : 2 S. J. MUKHOPADHAYA AND V. DHANAPALAN, JJ. ( Division Bench ) Raj Kumar Khemka v. Union of India and Ors. Writ Petition Nos. 9930 and 23660 of 2008, D/- 8 -12 -2008. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), S.13, S.2(d), S.2(c) - Constitution of India, Sch.7, List 1, Entry 43, Entry 45 - SECURITY TRANSACTION - INTEREST - RECOVERY OF DEBT - BANKING - WORDS AND PHRASES - Recovery of debts by Co-operative Bank - Co-operative bank can take action under SARFAESI Act - 'Banking Company' as defined in SARFAESI Act shall have same meaning as assigned in S.5(c) of Banking Regulation Act Central Govt. is empowered to make laws with regard to 'banking' under Entry 43 r/w Entry 45 of Constitution - S.2(c)(5) introduced in SARFAESI Act is constitutional - Notification S.O. No. 105(E), dated 28-1-2003 specifying 'Co-operative Banks' aa "Bank" for purposes of SARFAESI Act, is constitutional. (Paras 12, 13, 16, 17, 21) Cases Referred : Chronological Paras 11

AIR 2008 (NOC) 44 (Bom) : 2008 CLC 155 : (2007) 5 AIR Bom R 722 AIR 2007 SC 1584 : 2007 AIR SCW 2325 8, 14, 15, 16, 18, 19 AIR 1970 SC 564 8

Mr. Vijay Narayan, Sr. Counsel for M/s. S.R. Rajagopal, Adv., for Petitioner; Mr. Murray for M/s. Suchindran, Adv., for Respondent. Judgement S. J. MUKHOPADHAYA, J. :- These Writ Petitions have been preferred by the borrower/guarantor, raising common question of law, pursuant to common proceedings pending before the Debts Recovery Tribunal (for short, 'the DRT')-I, Chennai. Therefore, they were heard together and decided by this common order. 2. The borrower in these cases is M/s. NEPC Agro Foods Limited (writ petitioner in W.P.No. 23660 of 2008). The lender is M/s.Janata Sahakari Bank Limited (first respondent in W.P.No.23660 of 2008 and second respondent in W.P.No.9930 of 2008) (for short, 'the Co-operative Bank'), which is registered under the provisions of the Maharashtra Co-operative Societies Act. The petitioner-Raj Kumar Khemka (in W.P.No.9930 of 2008) is the guarantor. The respondent-Co-operative Bank, having given certain credit facilities to the borrower, it initiated proceedings against the borrower before the Co-operative Court No.1, Mumbai and the dispute came to be dismissed by order dated 1.3.2006. Against the said order dated 1.3.2006, the respondent-Co-operative Bank filed an appeal before the Cooperative Appellate Tribunal, which allowed the case, by order dated 18.9.2006 and remitted the matter for fresh trial to the Cooperative Court No.1. 3. In the meantime, the respondent-Cooperative Bank invoked the powers under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short, 'the SARFAESI Act') and after receipt of reply/objections, dated 18.3.2006, submitted by the borrower, being unsatisfied, the respondent-Co-operative Bank invoked Section 13(4) of the SARFAESI Act on 7.9.2006. Challenging the said proceedings under Section 13(4), the borrower filed Securitisation Application (appeal) in S.A.No.68 of 2008, which was originally filed in 2006, but got numbered in 2008, view of the fact that there was some doubt as to whether the application under Section 17 of the SARFAESI Act, was maintainable against a Co-operative Bank. 4. It appears that after remand by the Co-operative Appellate Tribunal, after issuance of notice under Section 13(2) of the SARFAESI Act, a consent Award dated 15.2.2007, came to be passed by the Cooperative Court No.I, Mumbai, by which the borrower(s) agreed to pay Rs. 15,51,00,000/@page-Mad144 as full and final settlement of all the dues within a time, but in view of the non-payment of the full amount in terms of the said consent Award, the respondent-Co-operative Bank proceeded with, under Section 13(2) notice, followed by the measures taken under Section 13(4) of the SARFAESI Act. 5. At this stage, one of the guarantors, namely Raj Kumar Khemka filed Writ Petition No.9930 of 2008 before this Court, forbearing the respondent-Co-operative Bank from exercising the powers under the SARFAESI Act, insofar as the loan account of the borrower-M/s.NEPC Agro Goods is concerned. Initially,

no interim order was passed and on 30.9.2008, when the Writ Petition was being heard, this Court passed the following interim order : "During the pendency of W.P.No.9930 of 2008, the respondents may auction-sale the mortgaged property(ies) (secured asset(s)), but will not confirm the sale, nor take possession of the same, if not yet taken, without prior permission of the Court." 6. While Writ Petition No.9930 of 2008 was pending, the respondent-Co-operative Tribunal sold the mortgaged property(ies) situated at Hyderabad by a private treaty. It is alleged that the said sale was bad without the consent of the borrower or the owner of the property(ies) and without following the procedures laid down under the Security Interest (Enforcement) Rules, 2002. The respondent-Cooperative Bank, having intimated the matter relating to the sale of the property(ies) by letter dated 29.8.2008 to the borrower-M/s.NEPC Agro Foods Limited, the second Writ Petition in W.P.No.23660 of 2008 has been preferred by the borrower. 7. It is informed that Securitisation Application (appeal) under Section 17 of the SARFAESI Act in S.A.No.68 of 2008 is still pending before D.R.T-I, Chennai. Initially, conditional interim order was passed therein, but the same having been set aside by a Division Bench of this Court in W.P.Nos.35427 of 2007, 5947, 5948 and 6491 of 2008, by common order dated 29.4.2008, on the ground that it was a stereotyped order, after remand, the DRT-I, Chennai, on hearing the parties, dismissed the petition for interim relief, on 3.6.2008, against which, appeal was preferred by the borrower before the Debts Recovery Appellate Tribunal (for short, 'the DRAT'), Chennai, in IN.No.489 of 2008. It is argued that in view of the fact that S.A.No.68 of 2008 is still pending before the DRT-I, Chennai, all the contentions available to the petitioners in both the Writ Petitions, may be left open to be urged in the appeal (application) under Section 17 of the SARFAESI Act, in S.A.No.68 of 2008. 8. Learned Senior Counsel appearing for the writ petitioners (borrower-guarantor) made the following submissions : (i) The provisions of the SARFAESI Act do not apply to a Co-operative Bank. (ii) Sale by a private treaty cannot be made except after the consent of all the parties. In fact, Rule 8(8) of the Security Interest (Enforcement) Rules, reads as follows : "Rule 8: Sale of immovable secured assets . (8) Sale by any methods other than public auction or public tender, shall be on such terms as may be settled between the parties in writing." In regard to the first contention, learned Senior Counsel appearing for the petitioners relied on the decision of the Supreme Court in the case of "Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd." reported in 2007 (6) SCC 236 : (AIR 2007 SC 1584); that was a case where two questions were framed by the Supreme Court at paragraph 69, one relating to "interpretation clause", viz., whether the

RDB Act (i.e. Recovery of Debts Due to Banks and Financial Institutions Act, 1993) applies to debts due to co-operative banks constituted under the MCS Act, 1960 (i.e. Maharashtra Cooperative Societies Act), the MSCS Act, 2002 (i.e. Multi-State Co-operative Societies Act, 2002) and the APCS Act, 1964 (i.e. Andhra Pradesh Co-operative Societies Act)? and the other relating to "Constitutional clause", viz., whether the State Legislature is competent to enact legislation in respect of co-operative societies incidentally transacting business of banking in the light of Entry 32, List II of the Seventh Schedule of the Constitution? Learned Senior Counsel appearing for the petitioners also placed reliance on paragraph 89 of the said judgment of the Supreme Court (2007 (6) SCC 236) : (AIR 2007 SC 1584), which reads as follows : "89. In R.C.Cooper v. Union of India (1970 (1) SCC 248) : (AIR 1970 SC 564) this Court observed that power to legislate for setting up corporations to carry on banking and other business and to acquire, hold and dispose of property and to provide for administration of the corporations is conferred upon Parliament by Entries 43, 44 and 45 of the @page-Mad145 Constitution. Therefore, the express exclusion of co-operative societies in Entry 43 of List I and the express inclusion of co-operative societies in Entry 32 of List II separately and apart from but along with corporations other than those specified in List I and universities, clearly indicated that the constitutional scheme was designed to treat cooperative societies as institutions distinct from corporations. Cooperative societies, incorporation, regulation and winding up are State subjects in the ambit of Entry 32 of List II of the Seventh Schedule to the Constitution of India. Co-operatives form a specie of genus "Corporation" and as such co-operative societies with objects not confined to one State are read in with the Union List as provided in Entry 44 of List I of the Seventh Schedule of the Constitution; the MSCS Act, 2002 governs such multi-State co-operatives. Hence, the co-operative banks performing functions for the public with a limited commercial function as opposed to corporate banks cannot be covered by Entry 45 of List I dealing with "banking". The subject of co-operative societies is not included in the Union List rather it is covered under Entry 32 of List II of the Seventh Schedule appended to the Constitution." Learned Senior Counsel appearing for the petitioners further submitted that in the light of the above observations of the Supreme Court, the Parliament cannot enact law relating to "co-operative societies" and therefore, the provisions of the SARFAESI Act cannot cover the "Co-operative Banks" and cannot provide for a procedure for recovery of debts by a Co-operative Bank. In other words, this power to regulate the Cooperative Societies including the Co-operative Banks, and providing for a procedure for recovery of a debt by a Co-operative Bank, cannot be the subject matter of a Central enactment. Consequently, the provisions of the SARFAESI Act could be read in the manner that it would exclude its applicability to Co-operative Banks. This alone makes the SARFAESI Act "constitutional" insofar as it relates to the Co-operative Banks. 9. Learned counsel appearing on behalf of the respondent-Co-operative Bank placed reliance on the definition of the 'Bank' in Section 2(1)(c)(v) of the SARFAESI Act, which gives power to the Central

Government to specify any other Bank by the Notification for the purpose of the Act (SARFAESI Act). In fact, by the Notification in S.O.105(E), dated 25.1.2003, the Central Government has specified the "Cooperative Banks" as the 'Banks' for the purposes of the SARFAESI Act. It was further submitted by the learned counsel appearing for the respondent-Co-operative Bank that the said Notification under Section 2(1)(c)(v) of the SARFAESI Act having been issued on 28.1.2003, the 'Co-operative Banks' can also take action under the provisions of the SARFAESI Act. 10. In reply, learned Senior Counsel appearing for the petitioners submitted that if the Parliament itself cannot 'legislate' on the Co-operative Societies, including the Co-operative Banks, then the Central Government could not also issue the Notification extending the provisions of the SARFAESI Act to the Co-operative Bank(s). The said Notification dated 28.1.2003 being an example of conditional legislation, is beyond the jurisdiction of the Central Government. In view of this matter, according to the learned Senior Counsel appearing for the petitioners, neither the said Notification, dated 28.1.2003, nor the definition of the "bank" as contained in Section 2(1)(c)(v) of the SARFAESI Act, would be of any use to the respondent-Co-operative Bank. 11. Learned counsel appearing for the respondent-Co-operative Bank placed reliance on a decision of a Division Bench of the Bombay High Court (Aurangabad Bench) in the case of "Khaja Industries v. State of Maharashtra and another", reported in 2008 (1), Debts Recovery Tribunal Cases 270 : MANU/MH/0973/2007 (W.P. No.2672, of 2007 etc., dated 3.7.2007) (AIR 2008 (NOC) 44 Bom), however, such judgment does not discuss the issue in its proper perspective and the judgment of the Bombay High Court is stated to have been challenged before the Supreme Court in Special Leave Petition (Civil) No. 17573 of 2007, and interim order has also been granted by the Apex Court on 7.1.2008. 12. The main issue that requires for determination in the present Writ Petitions, is as to "whether the provisions of the SARFAESI Act, would apply to a Co-operative Bank". 13. The other issue relating to the sale by a private treaty without the consent of all the parties, may not be required to be determined at this stage, which may be determined by the DRT-I, Chennai, in S.A.No.68 of 2008, if the first issue is decided by this Court in the affirmative. @page-Mad146 14. Almost similar issue fell for consideration before the Supreme Court in the case of "Greater Bombay Co-op. Bank Ltd." reported in 2007 (6) SCC 236 : (AIR 2007 SC 1584) (supra), but that was a case in which action was taken by a Co-operative Bank under the provisions of the RDB Act and not under the provisions of the SARFAESI Act. However, while dealing with the matter, the Supreme Court discussed the relevant provisions of the Banking Regulation Act, 1949 (for short, 'the B.R. Act'), the SARFAESI Act, the RDB Act and other Acts. 15. Before discussing the observations and the findings of the Supreme Court in the said case of "Greater Bombay Co-op. Bank Ltd." (2007 (6) SCC 236) : (AIR 2007 SC 1584), it is relevant to notice and quote certain provisions of the Banking Act and the SARFAESI Act, for comparison of the same with the RDB Act.

16. Section 5(c) of the B.R. Act defines 'banking company', which reads hereunder : "5(c).'Banking company' means any company which transacts the business of banking in India;" Subsequently, instead of amending the original Clause (c) of Section 5 of the B.R. Act, a separate Clause (cci) was added in Section 5 to cover the Co-operative Bank, to mean "a State Co-operative Bank,- a Central Co-operative Bank and a primary co-operative bank". In the introduced Clause (ccv) of Section 5, "primary co-operative bank" means "a co-operative society, other than a primary agricultural credit society". The above said Clauses 5(cci) and (ccv) were noticed by the Supreme Court in the said decision (2007 (6) SCC 236) : (AIR 2007 SC 1584) in the case of "Greater Bombay Coop. Bank Ltd.", wherein the Apex Court observed that the primary object or the principal business of the "Co-operative bank" should be the transaction of banking business. 17. There is no definition of "bank" under the B.R. Act, though it defines the 'banking' under Section 5(b), 'banking company' under Section 5(c) and 'banking policy' under Section 5(ca). 'Banking company' has also been defined under Section 2(e) of RDB Act and Section 2(d) of the SARFAESI Act, as per which, the 'banking company' shall have the meaning assigned to it in Clause (c) of Section 5 of the B.R Act. On the other hand, though the 'bank' has not been defined under the provisions of the B.R. Act, the following definition of 'the Bank' has been shown under Section 2(d) of the RDB Act and under Section 2(c) of the SARFAESI Act, respectively : "RDB Act : Section 2(d) : "banks" means (i) a banking company; (ii) a corresponding new bank; (iii) State Bank of India; (iv) a subsidiary bank; or (v) a Regional Rural Bank;" "SARFAESI Act : Section 2(c) : "banks" means (i) a banking company; or (ii) a corresponding new bank; or (iii) the State Bank of India; or

(iv) a subsidiary bank; or (v) such other bank which the Central Government may, by notification,*specify for the purposes of this Act;" * (The Central Government has specified "Co-operative Banks" as defined in clause (cci) of section 5 of the Banking Regulation Act, 1949 (10 of 1949) as "bank", vide S.O.105(E), dated 28.1.2003, published in the Gazette of India, Ext., Pt.II, S.3(ii), dated 28.1.2003)." There is a distinction in the definition of the 'bank' as shown in the RDB Act and the SARFAESI Act. While the first four clauses of the definition of the 'bank' i.e. (i) a banking company, (ii) a corresponding new bank, (iii) State Bank of India and (iv) a subsidiary bank, are common in both the RDB Act and the SARFAESI Act, under Section 2(c)(v) of the SARFAESI Act, the Central Government had been empowered to notify such other Bank for the purposes of the Act, and those provisions are absent in the RDB Act. 18. We have taken into consideration the aforesaid provisions as in the case of "Greater Bombay Co-op. Bank Ltd." (2007 (6) SCC 236) : (AIR 2007 SC 1584) (supra), while deciding the question of the applicability of the provisions of the RDB Act in regard to the Co-operative Societies, though the Supreme Court has not decided the question of the applicability of the provisions of the SARFAESI Act in regard to the Cooperative Societies/Banks, it discussed the relevant provisions of the B.R. Act vis-a-vis SARFAESI Act. 19. The relevant provisions of Section 5(cci) and 5(ccv) of the B.R. Act, as also the @page-Mad147 Notification contained in S.O.No.l05(E), dated 28.1.2003 issued by the Central Government in exercise of the powers conferred under Section 5(c)(v) of the SARFAESI Act, were noticed, but the question of validity of Section 5(c)(v) of the SARFAESI Act has not been doubted by the Supreme Court in the said case (2007 (6) SCC 236) : (AIR 2007 SC 1584). For this purpose, it is necessary to quote relevant observations of the Supreme Court in the said case, as hereunder : "The Banking Regulation Act, 1949 (the BR Act) 37. This Act was brought into force on 16-3-1949. Section 3 of the BR Act clearly provides that the Act would apply to co-operative societies in certain cases, subject to the provisions of Part V of the Act. The BR Act defines "banking company" under Section 5(c) as follows : "5(c). Banking company means any company which transacts the business of banking in India;" 38. In Section 5(d) "company" means any company as defined in Section 3 of the Companies Act, 1956 (1 of 1956) and includes a foreign company within the meaning of Section 591 of that Act. 39. Chapter V of the BR Act was inserted by Act 23 of 1965 w.e.f. 1-3-1966. Section 56 of the Act provides that the provisions of this Act, as in force for the time being, shall apply to, or in relation to, banking companies subject to the following modifications, namely :

"56(a). Throughout this Act, unless the context otherwise, requires, (i) references to a banking company or the company or such company shall be construed as references to a co-operative bank; (ii) * * *" The purpose and object of modifications were to regulate the functioning of the co-operative banks in the matter of their business in banking. The provisions of Section 56 itself start with the usual phrase "unless the context otherwise requires" is to make the regulatory machinery provided by the BR Act to apply to co-operative banks also. The object was not to define a co-operative bank to mean a banking company, in terms of Section 5(c) of the BR Act. This is apparent from the fact that instead of amending the original clause (c) of Section 5 separate clause (cci) was added to cover the "co-operative bank" to mean "a State co-operative bank, a Central co-operative bank and a primary co-operative bank". In clause (ccv) "primary co-operative bank" means "a co-operative society, other than a primary agricultural credit society". The primary object or principal business of the "co-operative bank" should be the transaction of banking business. 40. The modifications given in clause (a) of Section 56 are apparently suitable to make the regulatory machinery provided by the BR Act to apply to co-operative banks also in the process of bringing the cooperative banks under the discipline of Reserve Bank of India and other authorities. A co-operative bank shall be construed as a banking company in terms of Section 56 of the Act. This is because the various provisions for regulating the banking companies were to be made applicable to co-operative banks also. Accordingly, Section 56 brought co-operative banks within the machinery of the BR Act but did not amend or expand the meaning of "banking company" under Section 5(c). On a plain reading of every clause of Section 56 of the BR Act, it becomes clear that what is contained therein is only for the purpose of application of provisions that regulate banking companies to co-operative societies. According to the expression "co-operative societies" used in Section 56 means a "co-operative society", the primary object or principal business of which is the transaction of banking business. In other words, first it is a co-operative society, but carrying on banking business having the specified paid-up share capital. Other definitions also make it clear that the entities are basically co-operative societies. The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the Securitisation Act) 41. Parliament had enacted the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("the Securitisation Act") which shall be deemed to have come into force on 21-6-2002. In Section 2(d) of the Securitisation Act same meaning is given to the words "banking company" as is assigned to it in clause (e) of Section 5 of the BR Act. Again the definition of "banking company" was lifted from the BR Act but while defining "bank", Parliament gave five meanings to it under Section 2(c) and one of which is @page-Mad148

"banking company". The Central Government is authorised by Section 2(c)(v) of the Act to specify any other bank for the purpose of the Act. In exercise of this power, the Central Government by notification dated 28-1-2003, has specified "co-operative bank" as defined in Section 5(cci) of the BR Act as a "bank" by lifting the definition of "co-operative bank" and "primary co-operative bank" respectively from Section 56, clauses 5 (cci) and (ccv) of Part V. Parliament has thus consistently made the meaning of "banking company" clear beyond doubt to mean "a company engaged in banking, and not a cooperative society engaged in banking" and in Act 23 of 1965, while amending the BR Act, it did not change the definition in Section 5(c) or even in Section 5(d) to include co-operative banks; on the other hand, it added a separate definition of "co-operative bank" in Section 5(cci) and "primary co-operative bank" in Section 5(ccv) of Section 56 of Part V of the BR Act. Parliament while enacting the Securitisation Act created a residuary power in Section 2(c)(v) to specify any other bank as a bank for the purpose of that Act and in fact did specify "co-operative banks" by notification dated 28-1-2003. 42. The context of the interpretation clause plainly excludes the effect of a reference to banking company being construed as reference to a co-operative bank for three reasons : firstly, Section 5 is an interpretation clause; secondly, substitution of "co-operative bank" for "banking company" in the definition in Section 5(c) would result in an absurdity because then Section 5(c) would read thus : "cooperative bank" means any company, which transacts the business of banking in India; thirdly, Section 56(c) does define "co-operative bank" separately by expressly deleting/inserting clause (cci) in Section 5. Parliament in its wisdom had not altered or modified the definition of "banking company" in Section 5(c) of the BR Act by Act 23 of 1965. 43. As noticed above, "co-operative bank" was separately defined by the newly inserted clause (cci) and "primary co-operative bank" was similarly separately defined by clause (ccv). The meaning of "banking company" must, therefore, necessarily be strictly confined to the words used in Section 5(c) of the BR Act. If the intention of Parliament was to define the "co-operative bank" as "banking company", it would have been the easiest way for Parliament to say that "banking company" shall mean "banking company" as defined in Section 5(c) and shall include "co-operative bank" and "primary cooperative bank" as inserted in clauses (cci) and (ccv) in Section 5 of Act 23 of 1965. 20. From the aforesaid findings of the Supreme Court (at paragraph 40), it will be evident that the modifications given in Clause (a) of Section 56 of B.R. Act, are to make regulatory measures provided by the B.R. Act to apply to Co-operative Banks also, in bringing the Co-operative Banks under the discipline of the Reserve Bank of India and other authorities. A Co-operative Bank shall be construed as a 'banking company' in terms of Section 56 of the B.R. Act. This is because, the various provisions of regulating banking business were to be made applicable to Co-operative Banks also. As per the said Section 56 of the B.R. Act, though it may not be bring the Co-operative Banks within the meaning of the 'banking company', but that does not preclude the Central Government to bring a Cooperative Bank under the definition of "banking" as distinct from the 'banking company". 21. Under Entry 32 of List II (State List) of Seventh Schedule of the Constitution of India, though the "State" has been empowered with regard to "Co-operative Societies", but under Entry 43 read with

Entry 45 of List I (Union List) of Seventh Schedule of the Constitution of India, the Central Government has the power of regulation in making laws with regard to "banking", distinct from "banking business". Therefore, it cannot be asserted that the Central Government had no power to introduce Section 2(c)(v) of the SARFAESI Act, nor the Notification contained in S.O.No.l05(E), dated 28.1.2003, can be held to be unconstitutional. We accordingly hold that the respondent-Co-operative Bank' has jurisdiction to proceed under Section 13 of the SARFAESI Act, in view of Notification in S.O.No.l05(E), dated 28.1.2003, read with Section 2(c)(v) of the SARFAESI Act and the first issue is decided accordingly. 22. Apart from the aforesaid facts, it is not in dispute that the petitioners have not challenged the validity of any of the aforesaid provisions; it is the borrower-guarantor who have submitted before the DRT having moved in appeal (application) under Section 17 of the SARFAESI Act, therefore, they cannot challenge the jurisdiction of the DRT. @page-Mad149 23. We find no merits in either of the Writ Petitions, which are accordingly dismissed, but in the facts and circumstances of the cases, there shall be no order as to costs, but give liberty to the petitionersborrower/ guarantor to raise the second issue relating to sale by a private treaty before the DRT-I, Chennai at the time of final disposal of the appeal (application) under Section 17 of the SARFAESI Act. Petitions dismissed. AIR 2009 MADRAS 149 "I. P. R. Society Ltd. v. Br. Manager, Muthoot Finance Pvt. Ltd." MADRAS HIGH COURT Coram : 1 M. JEYAPAUL, J. ( Single Bench ) Indian Performing Rights Society Ltd. v. Branch Manager, Muthoot Finance Pvt. Ltd. andOrs. O.A. No. 1318 of 2008, D/- 3 -3 -2009. (A) Copyright Act (14 of 1957), S.2(ff) - COPYRIGHT - WORDS AND PHRASES - 'Communication to public' Not only means musical performance in public place - But, also means broadcasting of songs since same involves communication of music to public which is heard and enjoyed by them. (Para 10) (B) Copyright Act (14 of 1957), S.61 - COPYRIGHT - Suit for infringement of copyright - Impleading original owner of copyright - Bar of S.61 - Does not apply where an assignee and not a licensee has approached Court seeking relief without arraying assignor of copyright. (Paras 13, 14) (C) Copyright Act (14 of 1957), S.55, S.61 - COPYRIGHT - Suit for infringement of copyright - Copyright Society, having certificate of registration as per S.33 of Act can enter into an agreement with the copyright owners authorising it to administer any right in work by assignment of licence or collection of licence fee or both - Rights of owner of copyright is administered by Copyright Society in terms of

agreement entered into by Society and its members - Registered Copyright Society, being assignee, steps into shoes of copyright owner and can seek remedies invoking provision u/S.55 of Copyright Act Further, even an exclusive licensee is empowered to lay suitable proceedings for infringement of copyright u/S.61 of Act - Assignee of copyright has got every right not only to administer the copyright assigned to it but also to safeguard right given to it by owner of copyright. (Para 17) Cases Referred : CDJ 2008 DHC 156 AIR 1977 SC 1443 Chronological Paras 14 18

Sriram Panchu, for Counsel for P. Meghana Nair, for Applicant; Paul Jacob for Manoj Sreevalsan, for Respondents. Judgement ORDER :- O.A.No.1318 of 2008 is filed seeking an order of temporary injunction restraining the respondents and their agents from in any manner communicating any of the musical and literary works of the members of the applicants in the form of broadcast on their private FM Radio Stations. Application No.37 of 2009 is filed by the third respondent seeking to vacate the order of ad interim injunction granted in O.A.No.1318 of 2008. 2. The applicant/plaintiff is a Co-operative Society registered under section 33 of the Copyright Act, 1957. The applicant was permitted to carry on business in musical and literary works. The Government of India through the Registrar of Copyrights has issued to the applicant a certificate of registration. The respondents are engaged in the business of broadcasting private FM (Frequency Modulation) Radio Station in the city of Chennai in the name of Chennai Live 104.8 EM. The applicant is affiliated to 194 World Societies of authors and composers. The members of the applicant comprised of authors and composers and publishers of Indian Musical and Literary works have executed deeds of assignment assigning their public performing rights in respect of their musical work. The owners of copyright in musical and literary work in respect of a recorded song are entitled to receive royalty as and when the sound recording is communicated to the members of the public. The applicant has also been authorised to grant licence and collect royalties and licence fee on behalf of its members for use and exploitation of the copyrights by means of broadcast, telecast or public performance to the public at large. 3. It is alleged by the applicant that the respondents have started broadcasting the recorded songs on their FM Radio Stations in respect of which the members of the applicant owned copyright in relation to musical and literary work. The respondents cannot use or exploit the copyrights of the members without duly obtaining licence from the @page-Mad150

applicant paying necessary licence fee/royalty for such use and exploitation. Unless the respondents are restrained from broadcasting any of the music and literary works of the members of the applicant in the form of broadcast, the applicant would suffer loss, harm and injury, it is further alleged. 4. It is the contention of the third respondent that the third respondent had already entered into an agreement dated 4.6.2008 with Phonographic Performance Limited (PPL), a copyright Society registered under section 33(2) of the Copyright Act, 1957. PPL has been duly assigned the rights by the first owners of the copyright of music being played by Chennai Live. The third respondent also entered into private agreements with other owners of copyrights who are not members of PPL. The applicant has been granted licence to issue licence for performing rights only. But, the respondent is not in the business of performing music. Therefore, the respondent is not required to enter into any agreement with the applicant. The producer Companies mentioned in the list produced by the applicant are also members of the registered Co-operative Society viz., PPL which has already granted broadcasting licence to the respondents to conduct its business. Therefore, the third respondent would submit that grave prejudice will be caused to the respondent if the ad interim order of injunction already granted remains in force. 5. The point that arises for determination is whether the applicant has established a prima facie case that the third respondent has got no right to broadcast the songs through its FM Station with the agreement of assignment it has entered into with Phonographic Performance Limited (PPL) without obtaining separate licence from Indian Performance Rights Limited (IPRS). 6. Learned Senior Counsel appearing for the applicant would submit that the literary and musical work is a separate class of work from that of sound recording. Whereas learned counsel appearing for the third respondent would vehemently submit that the literary and musical work merges with the sound recording work. 7. There is no dispute to the fact that there are two Copyright Societies viz., Indian Performing Rights Society (IPRS), the applicant herein and the Phonographic Performance Limited (PPL) registered under section 33(3) of the Copyright Act, 1957. Under section 33(1) of the Copyright Act, 1957, there is a bar for any person or association of persons to carry on business of issuing licence in respect of any copyright without the registration under section 33(3) of the Act. The applicant Society has been registered to carry on business of granting licence in respect of copyrights involved in any work under section 33(3) of the Copyright Act, 1957. There is no dispute to the fact that Phonographic Performance Limited is also a Society registered under section 33(3) of the Act. Both of them have been issued certificate of registration under the aforesaid provision of law by the Government of India. 8. Copyright shall subsist in three classes of works viz., a) original literary, dramatic, musical and artistic work; b) cinematographic films; and c) sound recording as contemplated under section 13 of the Act.

It is pertinent to note that the legislature, in its wisdom, has classified sound recording as a separate class of work from that of literary and musical work. The copyright in a sound recording shall not affect the separate copyright in any work in respect of which a sound recording is made as per subsection (4) of section 13 of the Act. The separate classification of literary and musical work as contemplated under section 13(1) has been emphasised under section 13(4) of the Act. 9. The learned Senior Counsel appearing for the applicant would submit that broadcasting of the songs by the third respondent through its FM station would amount to performance of the work in public. But, the learned counsel appearing for the third respondent would contend that the applicant has got right to issue licence for performing rights only. The third respondent, who is not in the business of performing music, does not in any way intrude into the domain of the applicant. 10. In case of literary or musical work, copyright means an exclusive right to perform the above work in public or to communicate it to the public. What is 'communication to public' is defined under section 2(ff) of the Act. 'Communication to the public' means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means, of display. @page-Mad151 Therefore, performing literary or musical work in public does not only mean a musical performance in a public place. Broadcasting of the songs involves communication of the music to the public which is heard and enjoyed by them. Therefore, the submission made by the learned counsel appearing for the respondent that the right accrued to the applicant to issue licence for performing the literary or musical work is confined only to performing music in the public view stands rejected. 11. It is submitted by the learned Senior Counsel appearing for the applicant that the applicant being an assignee of the copyright by its members under the deed of assignment, can freely plunge into action for copyright without arraying the first owner of the copyright. 12. Per contra, the learned counsel appearing for the third respondent would contend that there is a statutory bar under section 61 of the Copyright Act to lay a suit without impleading the original owner of the copyright. 13. It is true that under section 61 of the Copyright Act, no civil suit can be laid by an exclusive licensee, unless the owner of the copyright is made a defendant in the suit. Firstly, the applicant has shown prima facie before the court that the applicant is only an assignee of the copyright by its members and not an exclusive licensee as contemplated under section 61 of the Copyright Act. The applicant has got assignment under section 18 of the Copyright Act and not licence from the owner of the copyright under section 30 of the Copyright Act. 14. The learned counsel appearing for the respondents cited the judgment of the Supreme Court in ESPN Star Sports v. Global Broadcast News Limited and others (CDJ 2008 DHC 156). That was a case where the plaintiff, contending that it had obtained the sole and exclusive licence from various sports bodies, laid a civil action for infringement of copyright. In the factual background of the above case, the

Supreme Court held that the suit was not maintainable as the owner of the Copyright in an action initiated by the exclusive licensee was not made a party as mandated under section 61 of the Copyright Act. The above ratio does not apply to the fact situation of this case where an assignee and not a licensee has approached this court seeking the relief under the Copyright Act without arraying the assignor of the copyright. 15. It is submitted further by the learned Senior Counsel appearing for the applicant that the applicant, being assignee of the copyright of its members, has got right of administration of such rights. Therefore, any violation of the right assigned can be challenged before the court of law by the applicant, it is submitted. 16. Per contra, the learned counsel appearing for the respondent would submit that only the owner of the copyright can seek civil remedies for infringement of copyright under section 55 of the Copyright Act, 1956. 17. A Copyright Society, which has got certificate of registration as per section 33 of the Act can enter into an agreement with the copyright owners authorising it to administer any right in the work by assignment of licence or collection of licence fee or both. The Copyright Society may also issue licence under section 30 in respect of any rights under the Act. It can also collect fee in pursuance of such licence granted. The rights of the owner of copyright is administered by the Copyright Society in terms of the agreement entered into by the Society and its members who have authorised the Society to administer any right in work. The registered Copyright Society, being assignee, steps into the shoes of the copyright owner and can very well seek the remedies invoking the provision under section 55 of the Copyright Act. Further, even an exclusive licensee is empowered to lay suitable proceedings for infringement of copyright under section 61 of the Act. Therefore, the assignee of copyright has got every right not only to administer the copyright assigned to it but also to safeguard the right given to it by the owner of the copyright. 18. The learned counsel appearing for the respondent cited yet another decision in Indian Performing Right Society Limited v. Eastern India Motion Picture Association and others (AIR 1977 SC 1443). That was a case where the issue as to whether the existing and future right of music composer and lyricist is capable of assignment and also whether the Producer of a Cinematographic film, who was authorised by music composer and lyricist to appropriate their work, can lawfully defeat their aforesaid right. The Supreme Court has held that an existing and future right of music composer and lyricist in their respective works as defined in the Act is capable of assignment. It @page-Mad152 has been further held that if an author (Composer) of a lyric or musical work authorises a cinematographic film Producer to make a cinematographic film of his composition, by recording it on the sound track of a cinematographic film, he cannot complain of the infringement of the copyright if the author (owner) of the Cinematographic film causes the lyric or musical work recorded on the sound track of the film to be heard in public. The composer of a lyric or a musical work however retains the

right of performing it in public for profit otherwise than as a part of the cinematographic film and he cannot be restrained from doing so. 19. That was a case between a composer of musical work and the owner of cinematographic film. Here is a case where the dispute has arisen between a registered Society which has got assignment of literary and musical work from its owner and a broadcaster, who claims to have acquired licence from another registered Society for broadcasting not only sound recording but also literary and musical work. Further, the core issue that has arisen in that case is found to be totally different from the issue arisen in the case on hand. Therefore, the aforesaid authority does not apply to the facts and circumstances of this case. 20. The applicant Society has established, prima facie, that it has got assignment of the literary and musical work from its owners by entering into separate agreement of assignment. It is also shown before the court that sound recording is a different class of work from that of literary and musical work. The Government of India has also registered two separate Societies one for carrying on the business of issuing or granting licence in respect of literary and musical work viz., IPRS and another one in respect of sound recording work viz., PPL. Unless the third respondent obtains licence for broadcasting literary and musical work of the members of the applicant Society, they have no right to broadcast the songs of the members of the applicant Society, it has been established prima facie before this court. 21. Under such circumstances, if the third respondent continues to broadcast the songs of the members of the applicant Society without getting licence from it, the interest of the applicant and its members would be in jeopardy. It has also been shown before the court that many radio channels have obtained licence both from the applicant Society and PPL. The balance of convenience is found only in favour of the applicant. 22. Therefore, ad interim injunction already granted by this court is made absolute and O.A.No.1318 of 2008 stands allowed and Application No.37 of 2009 stands dismissed. There is no order as to costs. Order accordingly. AIR 2009 MADRAS 152 "State Bank of India v. M/s. Kathikkai Tea Plantations Melur" MADRAS HIGH COURT Coram : 1 S. PALANIVELU, J. ( Single Bench ) State Bank of India v. M/s. Kathikkai Tea Plantations, Melur and Ors. C.R.P. No. 90 of 2009, D/- 26 -3 -2009. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), S.14 - SECURITY TRANSACTION - INTEREST - MAGISTRATE - Assistance of Magistrate in taking possession of secured asset - Application for, filed by secured creditor - Notice to borrower, not necessary - Reason being no adjudication nor roving enquiry is needed u/S.14 - And secured creditor is expected to have exhausted procedure contained in S.13 before moving for assistance of Court u/S.4.

An important factor has to be borne in mind is that S. 14 of the Act, while providing for taking recourse through the Chief Judicial Magistrate does not contemplate any adjudication or enquiry hearing both the parties. Before taking aid of Section 14 of the Act, the secured creditor is expected to have exhausted the procedures contained in S. 13 of the Act. Hence, the legislature thought fit not to incorporate any explicit provision in S. 14 of the Act to issue notice to the borrower nor to adjudicate the matter upon hearing him. In other words, it could be stated that since all the precautionary measures have been suggested and directed to be accomplished by the secured creditor in S. 13 of the Act, the legislature found it appropriate not to include any express requirement for hearing the borrower. The corollary thereof would be, no notice need be sent to the borrower while the Court deals with S. 14 of the Act on an application filed by the secured creditor. In case, if the Court issues notice to the borrower not only it would be out of scope of the provisions adumbrated in S. 14 of the Act but also be unlawful. To put it in a nutshell, since no adjudication nor roving enquiry is needed @page-Mad153 under S. 14 of the Act, issuance of notice to borrower is alien to the special statute viz., the Act. (Paras 8, 9) Cases Referred : Chronological Paras

2009 (1) CTC 341 (Mad) 6 2007 (2) CTC 1 (Mad) 6

K. Sankaran for Petitioner. Judgement ORDER : - The petitioner is secured creditor with whom the properties of the respondents were mortgaged on advancing loan. Since there was significant default on the part of the respondents, the petitioner issued Notice under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "Act"). Even then the respondents did neither come forward to discharge the loan nor make any representation as to the payment to the petitioner. Hence this petitioner moved the Chief Judicial Magistrate's Court, Ootacamand, by filing an application under Section 14 of the Act, praying the court to exercise its power to take possession of the assets belonging to the respondents. However, the learned Chief Judicial Magistrate, Ootacamand, directed to issue notice to the respondents returnable by 31.01.2009. The said order is being challenged before this Court in this revision petition. 2. It is the quintessence of the contention of the petitioner that no notice is contemplated under section 14 of the Act, that the Court below should have acted in accordance with the provisions of the Act, more particularly contained in Section 14 of the Act and that issuance of the notice to the respondents is not sustainable.

3. It is beneficial to have extraction of relevant provisions viz., Sections 13 and 14 of the Act, for better understanding of the subject : 13. Enforcement of security interest :- (1) Notwithstanding anything contained in section 69 or section 69-A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or tribunal, by such creditor in accordance with the provisions of the Act. (2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4). (3)............ (3-A)............ (4) In case the borrower failed to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely :(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset; (b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset. 14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset :- (1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of the Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, requests, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. (2) For the purpose of securing compliance with the provision of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be @page-Mad154

used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this Section shall be called in question in any Court or before any authority." 4. Sub-section (3) of Section 13 provides for furnishing details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor and sub-section (3-A) to Section 13 of the Act enables the borrower to make representation to the secured creditor, who shall consider and communicate the result to the borrower within one week on receipt of such representation. 5. Learned counsel for the petitioner Mr. Sankaran would draw attention of this Court to an unreported decision of this Court which came to be passed in C.R.P. PD. No. 1559 of 2004 [Sundaram Home Finance Limited v. K. Raja) in which the learned Judge expressed the view that no notice need to be sent to the other side. Relevant portion of the order goes thus : "2. Mr. AR.L. Sundaresan, learned counsel appearing for the petitioner took me through Sections 13(2) and (4) and Section 14 of the said Act and contended that, in deciding to grant the relief made to the Court under Section 14 of the said Act, no notice need be sent to the other side. A reading of Section 14 of the said Act do show that the contention of the learned counsel for the petitioner is right. Accordingly, the order of the lower Court so far as it relates to ordering notice to the respondent alone is set aside. The lower Court is directed to act as per the requirement of Section 14 of the said Act immediately on production of a copy of this order. The Revision stands disposed of accordingly." 6. He also placed reliance upon another decision of this Court reported in 2009 (1) CTC 341 [Indian Overseas Bank v. Sree Aravindh Steels Ltd.] wherein this Court has taken an identical view after following a Division Bench decision of this Court on this point. The extraction of the operative portion of the Division Bench decision as found in the Judgment in Sree Aravindh Steels Limited case (supra) is as follows : "9. The learned counsel appearing for the petitioner further relied on the decision of the Division Bench of this Court in Sundaram Home Finance Limited, rep. by its Manager-recovery, Madhavan, 46, Whites Road, Royapettah, Chennai-14 v. 1. The Tahsildar, Hosur 2. The District Collector, Krishnagiri, 2007 (2) CTC 1, wherein it is held as follows : 9. The words of the section and the law laid down in Mardia Chemical's case (supra) do not envisage a notice under Section 13(4). Reasons for not accepting the objection are to be communicated before taking measures like taking over possession of the secured assets. This is the fairness that is required of the lender. But if the borrower has not responded to the notice under Section 13(2), the lender has no occasion to communicate his reasons, necessarily the tender proceeds to the next stage. The borrower gets a right to challenge the action only after any of the measures contemplated under Section 13(4) have been taken. It is clear from the paragraphs extracted above from Mardia Chemical's case that the communication of the reasons may not be taken to give an occasion to resort to such proceedings which are impermissible under the Act. A person who does not respond to the notice under Section 13(2) of the Act should be considered to be aware of the consequences that will follow. In any event, it is not

possible to hold that a borrower who has not responded to the notice under Section 13(2) will be entitled to a notice under Section 13(4), whereas, in respect of a borrower who has responded to a notice under Section 13(2) and has had the rejection communicated by the Bank, the Bank can proceed straightway to take the measures contemplated under Section 13(4). There is no room for visualizing two such courses of action. This will be reading words into the Section, which the legislature had not used. It is not our duty to legislate. The Supreme Court also was aware that "some of the provisions may be a bit harsh for some of the borrowers", yet has not, in its judgment, held that a pre-Section 13(4) notice must be issued. We are unable to read a requirement of such notice either in the Section or in the Judgment." 7. After extraction of the above said portion, this Court has observed that in view of the decision rendered by the Division Bench of this Court, it is held that no notice is necessary to the borrowers and in such a case even though the notice was issued by the learned Chief Judicial Magistrate, @page-Mad155 Tiruchirappalli, it is not necessary to give notice to the respondents 1 to 3 to decide the issue. 8. A conjoint reading of Sections 13 and 14 of the Act would portray the position that the secured creditor on issuance of notice under Section 13, can enforce the secured interest even without the intervention of the Court or Tribunal and if he intends to take possession of the secured assets, then he may invoke Section 14 of the Act by approaching the jurisdictional District Magistrate for the relief of taking possession through the said court. The procedures laid down in Sections 13 and 14 of the Act are unambiguous which would pave way for the secured creditor to take possession of the assets and documents relating to the loan. Sub-section (2) of Section 14 of the Act also provides that the Chief Judicial Magistrate may also take steps to use force as necessary for taking possession and forward the assets to the secured creditor. An important factor has to be borne in mind is that Section 14 of the Act, while providing for taking recourse through the Chief Judicial Magistrate, does not contemplate any adjudication or enquiry after hearing both the parties. Before taking aid of Section 14 of the Act, the secured creditor is expected to have exhausted the procedures contained in Section 13 of the Act. Hence, the legislature thought fit not to incorporate any explicit provision in Section 14 of the Act to issue notice to the borrower nor to adjudicate the matter upon hearing him. In other words, it could be stated that since all the precautionary measures have been suggested and directed to be accomplished by the secured creditor in Section 13 of the Act, the legislature found it appropriate not to include any express requirement for hearing the borrower. The corollary thereof would be, no notice need be sent to the borrower while the Court deals with Section 14 of the Act on an application filed by the secured creditor. In case, if the Court issues notice to the borrower not only it would be but of scope of the provisions adumbrated in Section 14 of the Act but also be unlawful. To put it in a nutshell, since no adjudication nor roving enquiry is needed under Section. 14 of the Act, issuance of notice to borrower is alien to the special statute viz., the Act. 9. As adverted to supra, while the intention of the legislature while enacting Sections 13 and 14 of the Act is gathered, as the secured creditor might have positively exhausted the procedures contained in

Section 13 of the Act, there is no necessity for the secured Creditor to give prior notice to the borrower while moving the application under Section 14 of the Act. As per the consistent view taken by this Court on earlier occasions, it has to be necessarily held that when a petition under Section 14 (1) of the Act is filed before the Chief Judicial Magistrate or District Magistrate, it is not incumbent upon the Court to order notice to the borrower and the Court, has to follow and perform the procedures as found in Section 14 of the Act so as to enable the secured creditor to have satisfaction of the debt due. 10. In such view of this matter, the order challenged before this Court, directing issuance of notice to the borrower has to be set aside and it is accordingly set aside. The Civil Revision Petition deserves to be allowed. 11. In fine, the Civil Revision Petition is allowed directing the learned Chief Judicial Magistrate, Ootacamand to follow the procedures contained in Section 14 of the Act, in the light of the guidelines formulated by this Court in its decisions. No costs. Connected M.P. is closed. Petition allowed. AIR 2009 MADRAS 155 "Banu v. Govindaperumal" MADRAS HIGH COURT Coram : 1 S. RAJESWARAN, J. ( Single Bench ) Banu v. Govindaperumal. C. R. P. PD. Nos. 2252 and 2253 of 2008 and M.P. No. 1 of 2008, D/- 31 -3 -2009. Civil P.C. (5 of 1908), O.16, R.1(2) - Hindu Marriage Act (25 of 1955), S.13 - SUMMONS - WITNESS DIVORCE - FAMILY COURT - Summoning of witnesses - Refusal of - Divorce petition by husband - During pendency wife, came to know about illegal second marriage of husband and child born to him - In order to prove bigamy by husband and birth of child, wife sought to summon hospital authority and Registrar of births and deaths - Mere delay in filing list of witnesses and asking for issue of summons by wife does not tantamount to waiver of right - Opportunity must be given to wife to prove factum of birth of a child of her husband and another woman - Family court should not be a civil Court and strict rules of evidence and procedure should not be applicable to family disputes - Application by wife to summon said @page-Mad156 witnesses and reopen evidence, allowed. Cases Referred : AIR 1989 SC 1834 Chronological Paras 13 (Paras 14, 15, 16)

M/s. S. Vimal, J. Zeakumar for Petitioner; T.P. Manoharan, for Respondent. Judgement

ORDER :- The above Civil Revision Petitions are filed against the Orders dated 13.05.2008 passed in I.A.Nos.518 and 516 of 2008 in M.O.P.No.123 of 2002 on the file of the Family Court, Pondicherry. 2. The respondent /wife in M.O.P.No. 123 of 2002 on the file of Family Court, Pondicherry, is the revision petitioner before this Court, in both the revision petitions. She is aggrieved by the orders of the Family Court dated 13.05.2008, made in I.A.No.518 of 2008 and I.A.No.516 of 2008 filed by her, to summon the list mentioned witnesses for their attendance before this Court with documents sought for and to reopen the respondent's side evidence in M.O.P. respectively. 3. The M.O.P.No. 123 of 2002 was filed by the respondent/husband under Sec. 13 (1) (1) (a) of the Hindu Marriage Act, 1955, for a judgment and decree in favour of the respondent/husband, by dissolving the marriage dated 6.12.2000 solemnised between the parties. According to the respondent/ husband, within 15 days of their marriage, which was celebrated on 6.12.2000, the petitioner/wife started having difference of opinion against the respondent/husband. The respondent/husband could not understand the attitude of the petitioner/wife from the beginning of their first-night and the petitioner/wife being a French national, decided to go to France for employment. Without the permission of the respondent/husband, the petitioner/wife decided to break the matrimonial life once and for all and forced the respondent/ husband to execute a written deed of divorce. The act of the petitioner/wife amounts to guilty and cruelty and she wilfully neglected the husband with cruel intentions. The respondent/husband patiently waited for the petitioner/wife, but the petitioner /wife neglected him and also caused harassment and therefore, the respondent/husband is entitled to a decree of divorce on the ground of cruelty. 4. The divorce petition was contested by the petitioner/wife by filing a counter wherein she denied that a divorce deed was executed as alleged by her husband and she also stated that she did not commit a cruelty towards her husband. She pointed out in the counter that she filed M.O.P.No. 157 of 2002 before the same Family Court, for restitution of conjugal rights. She further stated that she is an Indian national and therefore, the allegation of her going to France is not true. She also denied the other allegations such as causing cruelty and harassment. She also made some allegations against her husband which includes her husband demanding dowry and insisting the wife to get a transfer of the plot standing in the name of her mother, in favour of him. She further stated that as she failed to transfer the plot as demanded by her husband, she was forced to go away from the matrimonial home and at present she is residing with her mother. Hence, she prayed for the dismissal of M.O.P.No. 123 of 2002. 5. The wife also filed an additional counter wherein it was stated that the husband married one Elisa and both her husband and the said Elisa have a male child by name Mohan Ram born on 17.08.2004 and the said birth was registered at the office of the Pondicherry Municipality. She also filed a Birth Certificate along with the additional counter filed by her. Thus, in the additional counter, the petitioner/ wife accused the respondent/husband of bigamy and therefore, he is not entitled to a decree of divorce. 6. The respondent/husband filed a reply statement to the additional counter filed by the petitioner/wife. In the reply filed by him, he denied that he married one Elisa and begot a male child by name G. Mohanram, on 17.8.2004. According to the respondent/ husband, the additional counter was

filed absolutely on false and imaginary allegations with mala fide intentions to harass the husband and also to prejudice the mind of the Court. 7. The M.O.P.No. 123 of 2002 filed by the respondent/ husband and M.O.P.No. 157 of 2002 filed by the petitioner/ wife are being tried together by the Family Court. When M.O.P.No.123 of 2002 was posted on 12.11.2007, for the evidence of the husband, the petitioner/wife filed an un-numbered LA. of 2008 under the Order XVI Rule 1(2) read with Sec. 151 C.P.C., to summon the list mentioned witnesses before the court and to produce the petition mentioned documents and also to speak on the contents therein. The list of witnesses shown in the petition contains the names of 1) Sri Krishna @page-Mad157 Nursing Home, represented by its Manager and 2) The Registrar of Births and Deaths. 8. The purpose of summoning the Manager of Sri Krishna Nursing Home is to produce all the original records pertaining to the birth of Mohan Ram, G., who was born on 17.8.2004 at Sri Krishna Nursing Home and also to speak on the contents therein. Similarly, the purpose of calling the Registrar of Births and Deaths is to produce all the original records pertaining to the birth of Mohanram, G. in Regn. No.N/2004/ 00060, born on 17.8.2004 and to speak on the contents of the same. 9. The Family Court, by order dated 7.03.2008, rejected the un-numbered LA. of 2008 on the ground that when the petitioner herself is not aware of the details of the documents, the court cannot issue summons for production of documents in general terms. Accordingly, the petition was dismissed with liberty to file a fresh application with complete details of documents required by her, if necessary. 10. Thereafter, the petitioner/wife filed I.A.No.516 of 2008 to re-open the respondent's side evidence in M.O.P. No. 123 of 2002 and the case was posted for further proceedings. She also filed another application in I.A.No.518 of 2008 under Order XVI Rule 1 (2) to summon the list mentioned witnesses for their attendance with documents sought for in the petition and to speak on the contents therein. 11. In the affidavit filed in support of the applications, it is stated by the petitioner/ wife that after the husband's side evidence in M.O.P.No.123 of 2002, the same was adjourned to for the wife's side evidence. She examined herself and later she filed an unnumbered application for summoning the official witnesses and for production of some documents. That application was rejected on 7.3.2008 and the matter was posted for further evidence on 28.03.2008. On that date, as she did not produce any witnesses on her side, the evidence on her side was closed with an observation that no steps were taken for issue of summons to the list mentioned witnesses for their examination and hence, the evidence on her side was closed. She did not know the contents of the order dated 7.3.2008, in which, liberty was given to her to file a fresh application, if necessary, for summoning the official witnesses, for the purpose of the production of documents. She applied for a certified copy of the order dated 7.3.2008 on 10.04.2008 to know the details of the order, but, the same was not received by her and therefore, she could not file any application as per the observation made in the order on 28.03.2008. Therefore, it has become absolutely necessary to re-open the wife's side evidence with an opportunity to summon the witnesses with documents and to examine them. Hence, she filed I.A.Nos. 516 and 518 of 2008 for the

aforesaid reliefs. Both the applications were resisted by the respondent/ husband in M.O.P.No.123 of 2002. 12. Heard the learned counsel for the petitioner/wife and the learned counsel for the respondent/husband. I have also gone through the entire documents available on record. 13. A perusal of the orders passed by the Family Court will show that the Family Court dismissed both the applications on the main ground that the wife is estopped from filing a petition for issue of summons for the said purposes and for that purpose, to file a petition to re-open. Hence, the Family Court held that the evidence cannot be re-opened and there is no point to re-open the evidence and accordingly, dismissed both the petitions. The main findings of the Family Court read as under : "Here in the case before us the witness mentioned in I.A.No.1862 of 2007 are not required by that time to be summoned by way of issuing summons for giving evidence. The petitioner herein ought to have known that these witnesses cannot be brought by herself without any summons for either giving evidence or producing documents and she ought to have known that she can bring these witnesses only on summons. But even then she has filed one petition only for condoning the delay in filing the list of witnesses and there was no prayer for issuing of summons either for appearance and giving evidence or for producing documents. That is the proper time by which she ought to have exercised her requirements or the right to apply for issue of summons to those witnesses. But for reasons best known to herself she has not done so. As already stated even in the order in I.A.No. 1862 of 2007 this Court has condoned the delay by observing that the petition is only for condoning the delay in filing the list of witnesses without any prayer for issue of summons to the witnesses either to appear and give evidence or for producing documents. Since the petitioner @page-Mad158 has not asked for issue of summons at the time of filing I.A.No. 1862 of 2007 or atleast before the next date of hearing i.e. 28.03.2008, as rightly pointed out by the respondent herein the petitioner should be taken to have waived her right by her conduct which warrants an inference of the relinquishment of a right or a privilege. As held in the case reported in AIR 1989 Supreme Court 1834, referred above the intention of the petitioner herein or what she would have thought of at the time of filing I.A.No. 1862 of 2007 is immaterial and it has to be taken as that the petitioner has forsaken the assertion of her right at the proper opportunity. So it is held that as pointed by the petitioner herein there is waiver of right by the petitioner for asking for issue of summons to the witnesses' either for appearance and giving evidence or for producing documents and she is estopped from filing a petition for issue of summons for the said purposes and for that purpose to file a petition to reopen. So, it is held that for the purpose of issuing summons to the witnesses of for any purpose, the evidence cannot be reopened and so it is held that there is no reason to reopen the evidence of the petitioner herein (respondent in the main petition) ,and this point is answered accordingly." 14. I am of the considered view that the Family Court has adopted a hyper- technical approach to dismiss the petitions filed by the petitioner/wife and therefore, I do not agree with the reasons given by the Family Court for dismissing the applications.

15. According to the petitioner/wife, when M.O.P.No.123 of 2002 was, pending before the Family Court, she came to know that the husband illegally married another woman by name G. Elisa and out of the same said illicit marriage, a male child by name Mohanram was born to them on 17-08:2004, at Sri Krishna Nursing Home. The birth of G. Mohanram was registered with the Registrar of Births and Deaths, Pondicherry Municipality. On coming to know about this, she filed an additional counter to prove that the husband is guilty of bigamy and also to prove that a male child was born to him through the illegal second marriage, she wanted to summon the hospital, authority and the Registrar of Births and Deaths. It is also not in dispute that a similar application was filed earlier and the same was rejected on 7.3.2008 with an observation that she could file a fresh application with complete details, if necessary. When she filed the fresh application on the basis of the liberty given to her in the earlier order dated 7.3.2008, it cannot be said that the wife is estopped from filing another application especially when she contended that she came to know about the entire details of the order dated 7.3.2008 only after 28.03.2008 when the wife's side evidence was closed. Therefore, to render complete justice and to give an opportunity to the wife to prove her contention that her husband has become a father of a male child through another woman, the trial court ought to have given an opportunity by allowing the applications. Instead, the Family Court adopted a hyper-technical approach and dismissed the applications, warranting interference by this court under Article 227 of the Constitution of India. 16. The Family Courts cannot be Civil Courts and strict rule of evidence and strict procedures of the Civil Court are not applicable to them. The Family Courts should see that they are dealing with emotions between the parties and therefore, they should be more considerate and lenient than the Civil Courts in entertaining the family disputes. I am not happy with the way the Family Court of Pondicherry went out of the way to dismiss the petitions filed by the petitioner/ wife to summon certain witnesses to prove the factum of the birth of a male child through her husband and another woman. Hence, I am inclined to interfere with both the orders of the Family Court dated 13.5.2008 and accordingly, both the revision petitions are allowed. 17. Considering the fact that the wife is also guilty of delay in filing both the applications, I direct the petitioner/wife to pay a total sum of Rs. 1,000/- to the respondent/ husband towards the cost within a period of one month from the date of receipt of a copy of this order. On such payment is made, within the stipulated time, the Family Court should reopen the evidence of the petitioner/ wife and summon the witnesses shown in I.A.No.518, of 2008 to produce the documents sought for in the petition. As both the M.O.'Ps' were filed in the year 2002 itself, I direct the Family Court to take every step to dispose of both the M.O.Ps' as expeditiously as possible, preferably within a period of four months from the date of receipt of a copy of this order. It is also made @page-Mad159 clear that if the petitioner/wife has failed to pay the total cost of Rs. 1,000/- to the respondent/husband within the time stipulated, this order gets recalled automatically without further reference to this court. 18. In the result, C.R.P. Nos. 2252 and 2253 of 2008 are allowed. Connected M.P.No.1 of 2008 is also closed.

Petition allowed. AIR 2009 MADRAS 159 "M. Raja Appar v. M. Gnanasambandam" MADRAS HIGH COURT Coram : 1 V. RAMASUBRAMANIAN, J. ( Single Bench ) M. Raja Appar and Ors. v. M. Gnanasambandam (deceased by L.R's.). A. No. 4386 of 2007, D/- 10 -2 -2009. (A) Specific Relief Act (47 of 1963), S.12(4), S.14 - Contract Act (9 of 1872), S.29 - CONTRACT AGREEMENT - PARTITION - PLAINT - Suit for specific performance - Family arrangement/Memorandum of Understanding (MOU) - Agreement between legal heirs for joint development of property and to share constructed area - However, one of legal heirs not agreed to said development and had filed a partition suit - Also there were several uncertainties in MOU regarding execution of agreement with builder, sharing of constructed area, fixation of money value in lieu of constructed area, etc. except undivided share of each parties - MOU cannot be enforced - Moreover, Court is not competent to determine all such uncertainties and to direct specific performance of a part of a contract - It can merely pass a preliminary decree for partition declaring undivided shares of each parties - Suit being barred by law, plaint liable to be rejected. Civil P.C. (5 of 1908), O.7, R.11. (Paras 28, 30, 31, 33, 34, 35) (B) Contract Act (9 of 1872), S.29 - Specific Relief Act (47 of 1963), S.10 - CONTRACT - Enforceable contracts - Family arrangement - Family arrangement may not have commercial undercurrent - But basic requirements of consensus ad idem, absence of fraud, misrepresentation, undue influence or coercion etc., are not to be dispensed with. (Paras 22, 23) Cases Referred : Chronological Paras

AIR 2006 SC 2488 : 2006 AIR SCW 3330 20, 26 (2005) 13 SCC 506 19

AIR 1998 SC 1297 : 1998 AIR SCW 1166 21, 27 AIR 1979 SC 982 AIR 1976 SC 807 AIR 1972 SC 2069 AIR 1971 SC 1041 18, 25 17, 20, 24 20 20 23

(1863) 2 De GJ and Sm 28

(1821) 3 Swan 400

23

T.V. Ramanujam, Sr. counsel for M/s. C. Rajan, V.K. Sathiamurthy, A.C. Suseel Kumar and P. Siddharthan, for Petitioners; Mr. V.T. Gopalan, Addl. Solicitor General for M/s. Rajnish Pathiyil, R. Palanisamy and J. Om Prakash, for Respondents. Judgement ORDER :- This is an application taken out by the first defendant in the suit seeking rejection of the plaint under Order VII, Rule 11, C.P.C. 2. I have heard Mr. T. V. Ramanujam, learned Senior Counsel for the applicant and Mr. V. T. Gopalan, learned Senior Counsel for the respondents/plaintiffs. 3. One Mr. A. Muthiah, purchased a property bearing Door No. 10, old No. 16, Singaram Street, T.Nagar, Chennai-17, by a sale deed dated 9-11-1933. He died intestate on 24-2-1961 leaving behind him surviving, (1) his wife Mrs. Parvatham Muthiah (2) 2 sons by name M. Gnanasambandam and M. Raja Appar and (3) 2 daughters by name Mrs. Uma Devi and Mrs. Madhuram Lakshman. 4. Mrs. Parvatham Muthiah executed a Will on 8-5-1997 registered as Document No. 63/1997, in the office of the Sub-Registrar, T. Nagar, bequeathing the said property in entirely, to her 2 sons M. Gnanasambandam and M. Raja Appar. Mrs. Parvatham subsequently died on 6-12-2003. One of the daughters namely Uma Devi also died on 4-4-2005 leaving behind her surviving, her husband and 2 daughters. 5. After the death of Mrs. Parvatham, a Memorandum of Understanding was allegedly entered into between her 2 sons, her daughter Madhuram Lakshman and the legal heirs of the pre-deceased daughter Uma Devi. Under the said Memorandum of Understanding dated 24-9-2005, the parties are said to have agreed to give the aforesaid property to a builder for joint development and take the constructed area that would @page-Mad160 fall to the share of the owners, in the ratio of share each to the 2 sons and the surviving daughter of Mrs. Parvatham and share to the legal heirs of Mrs. Uma Devi. 6. In pursuance of the Memorandum of Understanding, the parties claim to have identified a buyer and formally settled the terms of the joint development agreement on principle. But one of the 2 sons by name M. Gnanasambandam did not agree to the joint development agreement. Therefore, the other son M. Raja Appar, the surviving daughter Madhuram Lakshman and the legal heirs of the deceased daughter Uma Devi, joined together and have come up with the present suit seeking specific enforcement of the Memorandum of Understanding dated 24-9-2005. Thus, one son, one daughter and the legal heirs of the deceased daughter are the plaintiffs herein and the other son is the sole defendant herein.

7. The prayer of the plaintiffs in the suit is as follows :"directing the defendant to execute the sale deed to convey undivided share of land in the suit schedule property in favour of the plaintiffs or their nominee or nominees in accordance with the memorandum of understanding dated 24-9-2005 failing which direct the officer of this court to execute and register the sale deed in favour of the plaintiffs" 8. While the plaintiffs instituted the present suit on 21-8-2006, the sole defendant herein instituted an independent suit in C.S.No.729 of 2006 within a few days in September 2006, praying for partition and separate possession of his 3/10 share in the suit property. His claim for 3/10 share is on the basis that after the death of the father A. Muthiah and Muthiah's mother, the property devolved upon the mother Mrs. Parvatham and 2 sons and 2 daughters in the share of 1/5 each and that the mother executed a Will dated 8-5-1997 bequeathing her 1/5 share in the suit property upon the 2 sons namely, M. Gnanasambandam (the defendant in the present suit) and M. Raja Appar (the first plaintiff in the present suit) and that therefore he was entitled to his own 1/5 share together with the 1/10 share inherited under the Will of the mother, totalling to 3/10 share. In view of such a claim based on a Will, M. Gnanasambandam has also filed O.P.No.85 of 2007 seeking Letters of Administration. 9. Thus, there are now 2 suits, one in C.S.No.701 of 2006 filed by all the other sharers against M. Gnanasambandam seeking enforcement of the Memorandum of Understanding dated 24-9-2005 and the other filed by M. Gnanasambandam against all the other sharers for partition. There is also one O.P for Letters of Administration. 10. In the above background of facts, the defendant in the present suit has come up with the present application seeking rejection of plaint on the short ground that there is no cause of action for the suit and that the suit is barred by law in view of the provisions of the Specific Relief Act, 1963. Before getting into details, it is relevant to note that the sole defendant in the suit namely, M. Gnanasambandam died and his legal heirs have been brought on record as the defendants in the suit as well as the applicants in the present application. 11. As seen from the prayer in the suit (extracted in paragraph-7 above), the suit is one for specific performance of a Memorandum of Understanding dated 24-9-2005. It is not a suit for partition, but is one for a direction to the defendant to sell his share in the suit property. The suit is also valued as a suit for specific performance only and court fee is paid accordingly. Therefore it is necessary to see if the suit is maintainable in law, in view of the objections raised. 12. Before we get into the law on the point, it is necessary to look into the operative portion of the Memorandum of Understanding. Hence it extracted as follows :"Now THIS Memorandum of Understanding WITNESSETH : 1) The property of late A. Muthiah namely the house, ground and premises bearing old No. 16, New No. 10, Singaram Street, T. Nagar, Chennai-17 shall be shared as follows : 1) l/4th undivided share to Mr. M. Gnanasambandam

ii) 1 /4th undivided share to Mr.M. Raja Appar iii) 1/4th undivided share to Mrs.Sujata Tamta, Mrs.Malti Venkatraman and Mr.R.S.Subramaniam together iv) 1/4th undivided share to Mrs. Maduram Lakshmanan and 2) It is further agreed between the parties that they will not go back on the under@page-Mad161 standing with reference to allotment of the shares above mentioned. 3) It is further agreed that preference will be given for joint development of the property through a good builder and share the built up area as per the understanding to be reached. Sincere efforts will be made to bargain with the builder based on the present market value of the property to get reasonable share in the built up area. 4) The deal will be transparent and the parties will be taken into confidence and the discussions with the builder will be minuted and copies will be sent to the Advocate for the parties of the third and fourth part herein namely, Mrs.C.R.Rukmani. A rough plan will also be obtained from the builder and sent to her and once all the parties agreed the property will be entrusted to the builder by entering into an Agreement for Development. 5) Meanwhile, it is open to any party or parties to opt for money consideration relating to their share of the property and inform the same in writing to the parties of the first and second part so that arrangements can be made to collect the sale proceeds of their respective shares in terms of monetary consideration by means of Demand Drafts and forwarded to the respective parties." 13. A careful scrutiny of the Memorandum of Understanding extracted above, would show that the parties agreed upon three things namely, (i) that the first plaintiff will be entitled to share, the second plaintiff will be entitled to share, the plaintiffs 3 to 6 will together be entitled to share and the defendant will be entitled to share in the suit schedule property; (ii) that the property will be given for joint development to a builder and the built up area will be shared as per the understanding to be reached, by bargaining with the builder based on the present market value of the property to get reasonable share in the built up area; and (iii) that it will be open to any one of the parties to opt for money consideration in lieu of their share in the built up area. 14. Thus the only point in respect of which, there was certainty in the Memorandum of Understanding, was the undivided share to which each party was entitled. In contrast, there was total uncertainty in respect of (i) the method of choosing the builder (ii) the bargain to be had with the builder (iii) the nature of the deal or joint development agreement to be entered into with the builder (iv) the share of constructed area that each of the parties will get and (v) the consideration to be paid to the parry who opts to take money in lieu of the constructed area.

15. Since the suit is one for specific performance of the aforesaid Memorandum of Understanding, we have to see if the same can be specifically enforced, in the light of so many uncertainties inherent in the Memorandum of Understanding. This has to be done both with reference to the provisions of the Specific Relief Act, 1963 and with reference to Section 29 of the Indian Contract Act, 1872. 16. Mr.V.T.Gopalan, learned Senior Counsel appearing for the respondents/plaintiffs contended that a family arrangement is always enforceable in law and that there are "special equities" which govern a family arrangement. It is his contention that a plaint can never be rejected on the ground that a family arrangement is unenforceable in law. In support of the said contentions, the learned Senior Counsel relied upon several decisions of the Supreme Court, which I shall take up one after another. 17. The first decision relied upon by the learned Senior Counsel for the plaintiffs is Kale and others v. Deputy Director of Consolidation and others (1976 (3) SCC 119) : (AIR 1976 SC 807). It was held in the said decision as follows :"By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made." "The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke @page-Mad162 the family arrangement under which he has himself enjoyed some material benefits." 18. The next decision relied upon by the learned Senior Counsel is the one in The Commissioner of Wealth Tax, Mysore v. Her Highness Vijayaba {1979 (2) SCC 213} : (AIR 1979 SC 982). In the said case, there was a dispute between 2 sons of the Maharaja of Gondal, in respect of the assets left behind by the Maharaja. The wife of the Maharaja intervened and the dispute was resolved. However, on the question relating to a payment made by the wife of the Maharaja, proceedings for assessment of wealth tax were initiated, which ended in favour of the Rani. When the department filed an appeal before the Supreme Court, it was contended on behalf of the Revenue that the compromise reached between the 2 sons at the instance of their mother, cannot be taken to be a contract, as there was no consideration for the same and that therefore the contract was void under Section 25. But such a contention was repelled by the Supreme Court on the ground that it was a family settlement or family arrangement and that therefore Section 25 of the Contract Act would not hit it.

19. The next decision relied upon by the learned Senior Counsel is the one in Vigneswara Co-operative Housing Society Ltd v. K.Balachandramouli {2005 (13) SCC 506). This decision arose out of a suit for specific performance. The rejection of the plaint was sought for, on the ground that the land was notified to be acquired and that no relief for refund or damages was made. But the Supreme Court held that they may be grounds for dismissing the suit ultimately, but they may not be grounds for rejecting the plaint. 20. In the next decision Hari Shankar Singhania and others v. Gaur Hari Singhania and others {2006 (2) CTC 597} : (AIR 2006 SC 2488), an arbitration suit was dismissed on the ground of limitation by a single Judge of the Bombay High Court and the same was confirmed by the Division Bench. When the matter was taken up on appeal to the Supreme Court, the Supreme Court held in paragraphs-18 and 27 as follows :"Further in Krishna Biharilal v. Gulabchand, 1971 (1) SCC 837 : (AIR 1971 SC 1041), this Court reiterated the approach of Courts to lean strongly in favour of family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all. This approach was again re-emphasised in S. Shanmugam Pillai v. K. Shanmugam Pillai, 1973 (2) SCC 312 : (AIR 1972 SC 2069), where it was declared that this Court will be reluctant to disturb a family arrangement. In Kale and others v. Deputy Director of Consolidation and others, 1976 (3) SCC 119 : (AIR 1976 SC 807) (V.R. Krishna Iyer, R.S.Sarkaria and S.Murtaza Fazal Ali, JJ.) this Court examined the effect and value of family arrangements entered into between the parties with a view to resolving disputes for all." "27. Better late than never we have already referred to the concept of family arrangement and settlement. Parties are members of three different groups and are leading business people. We, therefore, advise the parties instead of litigating in Court they may as well concentrate on their business and, at the same time, settle the disputes amicably which, in our opinion, is essential for maintaining peace and harmony in the family. Even though the parties with a good intention have entered into the Deed of Dissolution and to divide the properties in equal measure in 1987, the attitude and conduct of the parties have changed, unfortunately in a different direction." 21. In the next decision in K.K.Modi v. K.N.Modi and others {1998 (3) SCC 573} : (AIR 1998 SC 1297), the Supreme Court held as follows :"Such a family settlement which settles disputes within the family should not be lightly interfered with especially when the settlement has been already acted upon by some members of the family. In the present case, from 1989 to 1995 the Memorandum of Understanding has been substantially acted upon and hence the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlements have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed." 22. I have carefully considered the above decisions. There is no dispute about the fact that Courts have always placed family arrangements

@page-Mad163 on a higher pedestal than the normal contracts. While contracts of the regular variety are generally commercial in nature, family arrangements would not normally have a commercial undercurrent. The objects of both are different and hence the rigours of the law of contracts may not apply to family arrangements. This is why Courts have always leaned in favour of enforcing family arrangements, with a view to preserve the family unity and honour, since family is the nucleus of the society. In "Leading Cases in Equity" by White and Tudor, the learned authors have remarked that "The expression 'family arrangement' covers a multitude of agreements made between relatives and designed to preserve the harmony, to protect the property and to save the honour of the family". 23. But unfortunately, the anxiety to preserve family arrangements cannot throw over board, the essential requirements of an agreement enforceable by law. The basic requirements of consensus ad idem, the absence of fraud, misrepresentation, undue influence or coercion etc., are not to be dispensed with, even in a family arrangement. In Cheshire and Fifoot's "Law of Contract" by M.P.Furmston, (10th edition), the learned author says (page 271) as follows :"Equity, though always anxious to sustain family arrangements, insists that there should be the fullest disclosure of all material facts known to each party, even though no inquiry about them may have been made. The parties must be on an equal footing. Thus, in Gordon v. Gordon {(1821) 3 Swan 400}, a division of property, based upon the probability that the elder son was illegitimate, was set aside, nineteen years afterwards upon proof that the younger son had concealed his knowledge of a private Ceremony of marriage solemnised between his parents before the birth of his brother; and in Greenwood v. Greenwood {(1863) 2 De GJ and Sm 28} an agreement to divide the property of a deceased relative was avoided on the ground that one of the parties failed to disclose information which he alone possessed concerning the amount of the estate." 24. Keeping the above fundamental principles in mind, if we scrutinise the decisions of the Supreme Court relied upon by the learned Senior Counsel for the respondent/plaintiff, it could be seen that in Kale's case {1976 (3) SCC 119} : (AIR 1976 SC 807), the Supreme Court was concerned primarily with the question as to whether the non registration of a family arrangement would make it unenforceable. The Court was also concerned with the question of estoppel against persons who derived a benefit under the family arrangement but attempted to go back on the same, afterwards. Thus two essential features in the family arrangement entered into between the parties, were noted by the Supreme Court in the said decision viz., (i) that what the parties agreed upon could be deciphered from their conduct and (ii) that the parties had also acted upon the terms of the family arrangement. But in the case on hand, the parties had agreed only upon one thing viz., that each of them would be entitled to a defined share (viz., ) in the suit schedule property. The other part of the agreement, viz., to have the property developed through a builder, had so many loose ends, devoid of any material particulars, essential for its specific enforcement. Therefore, what is to be enforced under the family arrangement, in the present case, is left to the imagination of this Court or to a further agreement to be reached by the parties with an

unknown builder. This is not the kind of family arrangement, which the Supreme Court was dealing with, in Kale's case. 25. In The Commissioner of Wealth Tax, Mysore case {1979 (2) SCC 213} : (AIR 1979 SC 982), the parties to the family settlement were not questioning the validity of the same. It was the Revenue which was assailing the family settlement as void in terms of the provisions of the Contract Act. Therefore the Supreme Court held that such settlements cannot be upset. This is on the fundamental principle that a third party cannot assail a contract between two persons as hit by Section 25 of the Contract Act and on the principle that natural love and affection could be a valid consideration for a family arrangement between the members of a family. 26. In Singhania's case {2006 (2) CTC 597} : (AIR 2006 SC 2488), a partnership firm comprising of 3 brothers as partners was dissolved in 1987 and the deed of dissolution contained an arbitration clause. In February 1988, the parties nominated their representatives to work out an arrangement. Several letters were exchanged between the parties, the last of which was dated 29-9-1989. @page-Mad164 But a petition under Section 20 of the Arbitration Act, 1940 was filed only on 8.5.1992. A single Judge of the Bombay High Court dismissed the arbitration suit, on the ground that it was filed beyond 3 years and hence barred by limitation. The Division Bench confirmed the view and the parties went before the Supreme Court. The Supreme Court found on facts that the last of the letters was written only on 29.9.1989 and that limitation started running only from the said date and that therefore the suit filed on 8.5.1992 was within time. Therefore the decision of the Supreme Court cannot be taken to mean that the law of limitation does not apply to the enforcement of family settlements. In any case, we are not concerned in the present case, with any technical objection such as limitation or jurisdiction, to the enforcement of the Memorandum of Understanding. We are primarily Concerned here about what is to be actually enforced and what the parties are to be compelled to perform in terms of the Memorandum of Understanding. 27. In K.K. Modi's case {1998 (3) SCC 573} : (AIR 1998 SC 1297), disputes arose between the younger brother of one Seth Gujjar Mal Modi on the one hand and the sons of Seth Gujjar Mal Modi on the other hand. After negotiations were held with the assistance of Financial Institutions, a Memorandum of Understanding was reached between both the warring groups. Under the Memorandum of Understanding, the shares and assets of various companies were directed to be valued in the manner specified in the MOU by one M/s.S.B.Billimoria and Co. Three companies were also to be divided between two groups in accordance with a scheme to be prepared by one Bansi S. Mehta and Co. Clause9 of the MOU contained an arbitration clause. After the valuation of shares by S.B.Billimoria and Co., and submission of reports by Bansi S. Mehta and Co., the parties became dissatisfied and hence arbitration was initiated. The Arbitrator formed a Committee of experts who found that the MOU had already been implemented to a great extent. Therefore one group was directed to pay money to the other group. Thereafter one group filed a petition under Section 33 of the Arbitration Act, challenging the decision of the Arbitrator, prepared in the form of a report, though it was not filed into Court for

passing a decree in terms thereof. The same group simultaneously filed a suit, challenging the decision of the Arbitrator. The High Court held the decision of the Arbitrator to be not an award. At the same time, the suit was also dismissed on the ground that it was a replica of the arbitration petition and hence an abuse of the process of law. It is in this context that the Supreme Court remarked (in paragraph-52) that a family settlement should not be lightly interfered with, especially when the settlement had already been acted upon by some members of the family. Therefore the said decision does not take the respondent/plaintiff anywhere. 28. Coming to the case on hand, it is seen from the Memorandum of Understanding extracted above, that the only issue on which there was certainty, was that each of the parties will be entitled to share in the suit schedule property. Beyond this, the MOU just contained several indeterminate factors such as (i) identification of a builder who would provide the best bargain for the parties, (ii) negotiation with such a builder, (iii) the execution of agreements with him and (iv) the sharing of the constructed area on mutually acceptable terms. The MOU also contained an option for any of the parties to take money value in lieu of constructed area. Thus everything else other than the shares to which each of the parties is entitled, was left open to be discussed, sorted out and determined. Such a MOU, in my considered view, is incapable of specific enforcement. 29. An agreement, which is bereft of material details indicating the consent terms between the parties, cannot be enforced by the Court, as the Court is not competent to investigate and supply material details as to how the contract could be specifically enforced. Suppose this Court were to pass a decree as prayed for in the suit, is the Court going to find a builder for the parties to have negotiations? Will the decree contain a clause determining the constructed area that could be allotted to the builder and to the parties? Can the decree specify the constructed area to be allotted to the parties? Can the decree also contain the method of valuation of the share of constructed area, allotted to each party, so as to facilitate the payment of money value in lieu of constructed area, to a party who opts for the same in terms of the MOU? 30. If the Court is competent to do the above, then the MOU can be specifically enforced. But if the Court is not competent @page-Mad165 to do any of the above things, except declaring the undivided shares of each of the parties, then there cannot be a decree for specific performance. The stage upto which this Court can go in the present suit, is merely to pass a preliminary decree for partition declaring that each of the parties is entitled to share in the suit schedule property. Since all issues to be sorted out between the parties, beyond this allotment, are to be sorted out only by mutual consent, there cannot be a decree in the suit beyond the point of allotment of shares. But such allotment of shares can always be done in the suit for partition C.S.No.729 of 2006 filed the applicant herein. Therefore, the present is actually redundant. 31. As a matter of fact, the parties are at loggerheads, in the matter of identification of a builder and the terms and conditions of joint development. The respondents/plaintiffs are alleged to have already entered into a joint development agreement with a builder of their choice. But the applicant/defendant

has not agreed to the choice or to the terms and conditions. The applicant/defendant is not a party to the alleged joint development agreement. Therefore, unilaterally, the respondents/plaintiffs have valued the money equivalent of the constructed area that could be allotted to the applicant/defendant and the respondents/plaintiffs have actually come up with a prayer for directing the applicant/defendant to take the money equivalent of the constructed area. They have valued the suit for specific performance in this fashion, since there is no clue in the MOU about the total constructed area permissible in the suit land and the ratio at which the builder and the parties would share the constructed area. Under such circumstances, the MOU cannot be specifically enforced. 32. Section 12 (1) of the Specific Relief Act, 1963, places an embargo upon the right of parties to seek specific performance of a part of a contract. Section 12 of the Specific Relief Act, 1963, reads as follows :"12. Specific performance of part of contract. - (1) Except as otherwise hereinafter provided in this Section, the Court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either - (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the Court may, at the suit of the other party, direct the party, in default to perform specifically so much of his part of the contract as he can perform, if the other party (i) in a case falling under Clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under Clause (b) pays or has paid the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained him through the default of the defendant. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.

Explanation - For the purpose of this Section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its performance." 33. Thus the general rule under Section 12 is that the Court shall not direct specific performance of a part of a contract. The exception to the rule is of two kinds viz., (i) where the part left unperformed bears only a small proportion to the whole in value and admits of compensation in money and (ii) where the part left unperformed either forms @page-Mad166 a considerable portion of the whole or does not admit of compensation in money. 34. In the present case, the only part of the contract, which could be performed, is a declaration of the undivided shares of each of the parties. The part which cannot be directed to be, specifically performed are (i) the identification of a builder (ii) settlement of terms with the builder with regard to the proportionate share of constructed area to be allotted to the builder on the one hand and to be allotted to the parties on the other hand (iii) the determination of the constructed area to be allotted to each of the parties after completion of construction and (iv) the fixation of monetary value in lieu of constructed area, if someone opts for the same. Thus the part of the contract to be left unperformed, forms a considerable portion of the whole of the contract and hence this MOU cannot be specifically enforced. Even if the case falls under sub-section (4) of Section 12, there can only be a preliminary decree for partition declaring the shares of each of the parties. But there is already a suit for partition pending between the same parties in respect of the same subject matter. Therefore, there is no point in keeping two suits for the determination of the same question. 35. Moreover, Section 14 (1) (b) and (d) of the Act also declares the following contracts to be not specifically enforceable :(i) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms and (ii) A contract the performance of which involves the performance of a continuous duty which the Court cannot supervise. The MOU in the present case would certainly fall under either of the above two categories. As stated earlier, this Court will have to identify a builder on behalf of the parties, negotiate the best bargain for the parties, determine the constructed area to be allotted to each of the parties and find out the monetary value of the constructed area, before it could pass a decree for specific performance, in this case. Such an exercise is not contemplated under the Specific Relief Act. Therefore the suit is barred by law and the plaint is liable to be rejected under Order VII, Rule 11, CPC. 36. As stated earlier, the only relief that this Court is competent to give to the respondents/plaintiffs in the present suit, is to declare that the first plaintiff, the second plaintiff, the plaintiffs 3 to 5 and the defendant would be entitled to 14 share each in the suit schedule property. In other words, this Court

has to pass a preliminary decree for partition, in a suit for specific performance. But it is actually unnecessary to do so, since a suit for partition in C.S.No.729 of 2006 is also pending between the same parties. In that suit, the applicant/defendant is seeking a decree for partition of his 3/10 share in the suit property. Therefore the respondents/plaintiffs can always file the MOU in the said suit for partition and contend that the applicant/defendant is entitled only to share and not 3/10 share. Thus the only result possible in the present suit, can be achieved by the respondents/plaintiffs in the other suit. 37. In view of the above, the application A.No.4386 of 2007 for rejection of plaint is allowed and the plaint in C.S.No.701 of 2006 is rejected. However, this will not preclude the respondents/plaintiffs from filing the MOU dated 24.9.2005 in the other suit C.S.No.729 of 2006 and plead estoppel against the applicant in so far as the share to which he is entitled to in the suit schedule property is concerned. Petition allowed. AIR 2009 MADRAS 166 "V. P. Sankaran v. R. Uthirakumar" MADRAS HIGH COURT Coram : 1 S. PALANIVELU, J. ( Single Bench ) V. P. Sankaran v. R. Uthirakumar. C.R.P. No. 3962 of 2008, and M.P. No. 1 of 2009, D/- 15 -4 -2009. Negotiable Instruments Act (26 of 1881), S.118 - Evidence Act (1 of 1872), S.45 - DISHONOUR OF CHEQUE - EVIDENCE - Rebuttal of presumption - Suit for recovery on basis of pro-notes - Defendant contended that numericals "Rs. 5,000/-" as originally entered in pronote was altered subsequently to show as if it is for "Rs. 85000/-" - Application also made to refer suit pronote to handwriting expert When contents of pronote are specifically disputed, referring same to handwriting expert is inevitable Defendant has to be afforded with ample opportunities to rebut presumption u/S.118 - By no stretch of @page-Mad167 imagination it could be stated that opinion of expert is not relevant factor for adjudication. 12, 13, 14) Cases Referred : 2009 (2) Mad LJ 358 Chronological Paras 10 (Paras

AIR 2008 SC 2010 : 2008 AIR SCW 3349 5 AIR 2008 (NOC) 1300 (Mad) (2007) 2 SCC 258 AIR 1994 AP 90 8 6 10

AIR 1964 SC 529

N. Manokaran, for Petitioner; T. Murugamanickam, for Respondent. Judgement ORDER :- The petitioner is the defendant in O.S.No.125 of 2007 on the file of the Principal District Munsif Court, Bhavani. The respondent filed the suit for recovery of Rs.98,600/- from this petitioner on the strength of a promissory note executed by him on 10.07.2005. This petitioner filed the written statement, contending inter alia, that as he stood as guarantor for his friend by name Rangasamy, who borrowed a sum of Rs.5,000/- from the Finance Company run by the plaintiff and this petitioner put his signature and his left thumb impression on a blank pro-note, in which, only numericals of Rs.5,000/written at the top, and that the said Rangasamy discharged the loan. However, the plaintiff did not return the above said blank pro-note to the defendant and that the said document has been forged and fabricated, with material alteration as if, the defendant owes Rs.85,000/- to the plaintiff. 2. The petitioner filed the petition under Section 45 of the Indian Evidence Act and Section 151 CPC, praying the Court to refer the suit pro-note to handwriting expert to compare the difference available in the thickness, clarity of ink used to place 8 in front of Rs.5,000/- and writing of the amount in words with the other words used to fill up the pro-note relating to the address of parties and to give his opinion. In the affidavit, he has stated that originally, numericals "Rs.5,000/-" alone was entered in the pro-note, but the suit pro-note shows as if, it is for Rs.85,000/- and words in Tamil as "Rs.85,000/-" have been written subsequently and hence, age, thickness and clarity of the ink have to be compared by the handwriting expert. 3. The above said petition resisted by the respondent by filing counter affidavit, stating that it is false to state that the alteration has been affected in the suit pro-note from numericals 8 to 85; that the petitioner is belated one; and that only in order to drag on the proceedings, the petitioner has been filed. 4. Learned Principal District Munsif, Bhavani, dismissed the said application, by observing that referring to the pro-note to the handwriting expert would only drag on the proceedings, as there is no apparent mischief could be observed in the pro-note and the said question has to be decided at the time of trial by examination of witnesses and other evidence. 5. Learned counsel for the petitioner, Mr.N. Manoharan, would draw the attention of this Court to the decision of the Supreme Court in T.Nagappa v. Y.R.Muralidhar reported in 2008 (5) SCC 633 : (AIR 2008 SC 2010), wherein, Their Lordships have dealt with an identical circumstance and held that the age of writing can be directed to be compared by an expert and that when the person, who delivered a cheque disputes the contents of the document, it is incumbent upon the Court to refer the same to the handwriting expert. The operative portion of the judgment is extracted hereunder : "7. When a contention has been raised that the complainant has misused the cheque, even in the case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be

granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it." 6. In the above said decision, an earlier decision of the Supreme Court in Kalyani Baskar v. M.S.Sampoornam reported in 2007 (2) SCC 258, is also referred to, in which, it is observed thus, "The appellant is entitled to rebut the case of the respondent and if the document, viz., the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is @page-Mad168 no fair trial." 7. The Supreme Court has taken a consistent view that when the opinion of the expert brings out good material in favour of the person, delivering the cheque to rebut the case, it has to be obtained by the Court and refusal on the part of the Court would amount to deprivation of opportunity of rebutting it. 8. Learned counsel for the petitioner would draw attention of this Court to a decision of the Andra Pradesh High Court in Uppu Jhansi Lakshmi bai v. J.Venkateswara Rao reported in AIR 1994 Andra Pradesh 90, in which, it is held that the opinion of the handwriting expert is not totally irrelevant factor for adjudication of the dispute and his opinion can be sought for determining the age of disputed handwriting. In the said decision, a judgment of the Apex Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee reported in AIR 1964 SC 529, has been referred and relied upon. The extraction of portion of the judgment is as follows : "Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at page 464 says even with respect to chemical tests that "the chemical tests to determine the age also, as a rule are a mere excuse to make a guess and furnish no reliable date upon which a definite opinion can be based. In these circumstances, the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances." 9. Learned Judge of the Andra Pradesh High Court further had taken pains to go through the authority of 'Albert S.Osborn' and extracted the view of the author, which is more appropriate to furnish here : "There are those also who pretend to say how old a writing is by merely examining it with a hand magnifier or a microscope. This always is an exhibition either of ignorance or of dishonest presumption. The chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no

reliable date upon which a definite opinion can be based as can easily be demonstrated by fair tests on documents of known age." The learned author also expressed the view that : ".........By recording the color as first seen, any observer with good eyesight can on second view answer the question whether an ink is still undergoing a change in color. This kind of an ink examination often furnishes conclusive evidence that a document is not as old as it purports to be. ................................. It is important to know that the color of the ink on a suspected document, if it is promptly examined, may thus be the means of showing that the document is not genuine. If a writing of this kind purports to have been written long before and it can be shown that the ink has not yet reached its final depth of color, and it actually goes through those changes that are characteristic of ink during the first months or year of its history, it is only necessary to prove this fact to invalidate the document." The relevant authorities on this subject also lend support to the contention of the petitioner. 10. Learned counsel for the respondent, Mr.T.Murugamanikkam, would place reliance on a decision of this Court in Sundaramoorthy v. R.Palanisamy reported in 2009 (2) MLJ 358, where, the learned Judge referred to another decision of this Court in S.Gopal v. D.Balachandran reported in 2008 (1) MLJ (Crl.) 769 : (AIR 2008 (NOC) 1300), wherein, it was observed as under : "the age of the ink cannot be determined, on the basis of the writing the ink in dispute was manufactured five years prior to the date of execution of the document and used effectively on a particular date for the first time and an experts opinion as age of ink will not resolve any controversy, but it will help to create only confusion." 11. In the above prorated judgment, this Court has taken a view that the defendant need not take any steps to disprove the case of the plaintiff and no useful purpose would be served by sending the pronote to ascertain the age of the ink. 12. Following the principles and guidelines laid down in the decision of the Hon'ble @page-Mad169 Supreme Court mentioned supra, it is held that referring the suit pro-note to the wisdom of handwriting expert is inevitable for the reasons that the petitioner had to be afforded with ample opportunities to rebut the presumption under Section 118 of the Negotiable Instruments Act. When the contents in the suit pro-note are specifically disputed, the Court need not decline to refer the matter to the handwriting expert. As for the Criminal case under Section 138 of the negotiable Instruments Act, it has become the responsibility of the accused to discharge the burden. Insofar as the civil cases are concerned, the position of affording ample opportunities to the defendant, when necessary defence is specifically available in the written statement, has to be considered.

13. There is no legal embargo for getting opinion from the handwriting expert, which would effectively assist the Court in reaching a just decision. By no stretch of imagination, it could be stated that the opinion of the expert, is not relevant factor for adjudication of the dispute and in order to unearth the truth, the Court can very well refer the matter for comparison and necessary chemical examination. 14. In the light of the abovesaid observations and following the principles of the Apex Court, it is observed that it is necessary to get the opinion of the handwriting expert as per the prayer contained in the affidavit. Hence, the order passed by the Court below calls for intervention and the same is liable to be set aside, which is accordingly set aside and the Civil Revision petition deserves to be allowed. The trial Court shall follow the a relevant procedure for referring the suit pro-note to the handwriting expert and to get the opinion and proceed with the case further. 15. In fine, the Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed. Petition allowed. AIR 2009 MADRAS 169 "K. Murugesan v. E. Ulaganathan" MADRAS HIGH COURT Coram : 1 S. PALANIVELU, J. ( Single Bench ) K. Murugesan v. E. Ulaganathan and Anr. C.R.P. No. 159 of 2009, D/- 1 -4 -2009. Civil P.C. (5 of 1908), S.60(1)(g) - ATTACHMENT - Proviso - Property liable for attachment - Exemption Retiral benefits such as pension, gratuity, etc. - Even if such benefits passes to hands of employee after retirement such benefits would not lose their character as retiral benefits - Cannot be attached. AIR 2009 SC 930 : AIR 1976 SC 1163 Relied on. (Paras 7, 8) Cases Referred : Chronological Paras 6

AIR 2009 SC 930 : 2008 AIR SCW 8284 (Relied on) 1990 (1) Mad LW 135 5 6

AIR 1976 SC 1163 (Relied on)

P. Valliappan, for Petitioner; No appearance for Respondent. Judgement ORDER :- No appearance for the respondents. Hence, the matter is taken up for final hearing.

2. The petitioner is the seventh defendant in O.S.No. 154 of 2008 on the file of the District Munsif Court, Mettur. The first respondent has filed a suit on pro-note for a sum of Rs.94,750/-. Along with the suit, he also filed an application under Order 38 Rule 5 read with Section 151 Civil Procedure Code, for an order of attachment before judgment of the retiral benefits of this petitioner to the tune of Rs.1,00,000/-. 3. At the outset, the Court below passed an order, directing notice to furnish security by this petitioner. This petitioner remained absent and was set ex parte by the Court below on 16.06.2008. On 23.06.2008, the trial Court passed an order, directing attachment of the retirement benefits of this petitioner by 25.07.2008 and the same was also effected. On 25.07.2008, the attachment was made absolute and the Interlocutory Application was closed. It is this order being challenged before this Court by the petitioner, by terming it to be unlawful. 4. Mr.Valliappan, learned counsel for the petitioner submitted that the petitioner retired on superannuation on 28.02.2009 and that, as stated in the affidavit filed by the first respondent that the petitioner retired on 30.06.2008, is incorrect. 5. The learned counsel for the petitioner would strenuously contend that the Court below did not follow the provisions contemplated in Section 60(1)(g) of CPC, which exempts, stipends, gratuities allowed to pensioners of the Government or of a local authority or of any other employer, or payable @page-Mad170 out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pensions. It is his further contention that the claim of the petitioner is safeguarded by the decisions of the Hon'ble Supreme Court to the effect that the retiral benefits payable to an employee could not be attached even it reaches the hands of such employee, since it would not lose the character of the amount, as described in Section 60(1)(g) of CPC. He garnered support from a decision of this Court in Lakshminarayanan, I v. A.Veeraraghavalu reported in 1990 (I) Mad LW 135, wherein, it is observed as follows : "Retirement benefits fall under the proviso to S. 60(1), C.P.C., which enumerates the properties which cannot be attached. O.38, R.11-A was introduced in 1976, by an amendment of C.P.C., S.60, C.P.C. will certainly be applicable to attachment before judgment, i.e., even though the suit has not yet resulted in a 'decree' as such." 6. Learned counsel for the petitioner placed much reliance on a recent decision of the Hon'ble Supreme Court in Radhey Shyam Gupta v. Punjab National Bank and Ann reported in 2009 SAR (Civil) 119 : (AIR 2009 SC 930), wherein, Their Lordships were pleased to hold that under Section 60(1)(g) CPC, the attachment of retiral benefits, such as, pension and gratuity is unsustainable and even if such benefits were received by the retired employee in cash, it would not lose their character and will continue to be covered by proviso (g) to Section 60(1) of the Code. The Supreme Court also refers to various decisions of the Court on this point and formulated the dictim as follows :

"17. However, in all fairness, Ms.Shobha also cited the decision of this Court in Union of India v. Jyoti Chit Fund and Finance and others (1976) 3 SCC 607 : (AIR 1976 SC 1163), where while dealing with the provisions of Sections 3 and 4 of the Provident Funds Act, 1925, prohibiting attachment of sums held by the Government, as well as proviso (g) to Section 60(1) of the Code, this Court held that till such time as amounts payable by way of provident fund, compulsory deposits and pensionary benefits did not reach the hands of the employee they retained their character as such and could not, therefore, be attached. However, once the amounts were received by the employee they ceased to retain their original character, and, therefore, capable of being attached. Ms.Shobha urged that the aforesaid decision had been rendered long before the other decisions cited by her and the subsequent decisions would prevail over the earlier decision. ...........................' 25.......We also agree with Ms.Shobha that even after the retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be covered by proviso (g) to Section 60(1) of the Code. Except for the decision in the Jyoti Chit Fund and Finance case (supra), where a contrary view was taken, the consistent view taken thereafter support the contention that merely because of the fact that gratuity and pensionary benefits had been received by the appellant in cash, it could no longer be identified as such retiral benefits paid to the appellant." 7. The settled law on this subject is that retiral benefits are not liable for attachment not only while they were with the employer concerned, but also when it passes to the hands of the employee after retirement, since such benefits will not lose their character as retiral benefits entitling them to be clothed with exemption under Section 60(1)(g) of CPC. 8. Following the ratio laid down by the Supreme Court, it is held that the attachment of the retiral benefits made by the Court below is not legally sustainable, the order of attachment has to be set aside and the attachment be lifted. In such view of this matter, the impugned order dated 25-07-2008 is set aside and the attachment made, pursuant to the abovesaid order, is lifted. The second respondentGarnishee is directed to disburse the amounts as per the rules. 9. In the result, the Civil Revision Petition is allowed. Consequently, connected Miscellaneous Petition is also closed. Petition allowed. AIR 2009 MADRAS 170 "S. V. L. S. Ranga Rao v. Secretary to Govt. Commercial Taxes, Chennai" MADRAS HIGH COURT Coram : 1 K. VENKATARAMAN, J. ( Single Bench ) S. V. L. S. Ranga Rao v. Secretary to Govt. Commercial Taxes Chennai and Anr. Writ Petition No. 23263 of 2008, D/- 20 -4 -2009.

@page-Mad171

Stamp Act (2 of 1899), Sch.1, Art.58 (Tamil Nadu Amendment Act 31 of 2004) - STAMP DUTY - DEED WORDS AND PHRASES - SUCCESSION - Stamp duty in case of transaction between family members Deed of release executed by step mother - To be classified as transaction between family members Deficit stamp duty and registration fees cannot be insisted upon for releasing document - Definition of 'family' is illustrative and not exhaustive - Strict construction of definition not required - When adoptive mother is covered by definition, exclusion of step mother would neither be legal nor logical - Further when step mother is classified as Class I heir in Hindu Succession Act no reason to exclude her from explanation to Art.58. (Paras 10, 12) Cases Referred : 2002 (2) Mad LJ 458 1991 (2) Mad LW 692 Chronological Paras 4 11

V. Srinivasa Babu, for Petitioner; L.S.M. Hasan Fizal, G.A., for Respondents. Judgement ORDER :- By consent, the main writ petition itself is taken up for final disposal. 2. The petitioner has come forward with the present writ petition challenging the proceedings of the second respondent dated 07.08.2008 with a further direction directing the respondents to treat the deed of release executed by his stepmother in his favour and his brother dated 13.11.2007 to be classified as transaction between the family members as per Article 58 of Schedule-I of Indian Stamp (Tamil Nadu Amendment) Act 31 of 2004, 3. The short facts which are necessary for the disposal of the writ petition, are set out hereunder :3.1 The property bearing No.58/A, Block No.109, T.S.No.4816, R.S.No.41 Part, in T.Nagar Village, measuring an extent of 9 Grounds and 964 sq.ft. along with immovable properties at various places in Andhra Pradesh were acquired by the petitioner's grandfather late S.V.Ranga Rao, who died intestate on 18.07.1974 leaving behind his wife Samaria Leelavathi and his only son Koteswara Rao to inherit his properties. During the lifetime of Samaria Leelavathi, she had executed a Will dated 15.11.1999 in respect of her 5/8th share and she died on 25.04.2000. On her death, Koteswara Rao, the father of the petitioner and his children, viz., the petitioner, the other son and daughter acquired their rights in the properties. After the death of the petitioner's mother S.Vjjayalakshmi, his father married one Samarla Manjula in the year 1988 and thereafter, the said Koteswara Rao died intestate on 18.07.1989 leaving behind his stepmother Samaria Manjula and his two sons viz., the petitioner and one S.V.Ranga Rao and daughter Adimulam Lakshmi Priya to inherit his undivided shares.

3.2 The stepmother Samaria Manjula filed a suit for partition for allotment of 5/32nd share of various properties acquired by Koteswara Rao in O.S.No. 19 of 1997 before the Additional Senior Civil Judge at Eluru, which ended in a compromise, wherein, she was allotted 5/32nd share in 9 Grounds and 964 sq.ft. approximately 1-1/2 Grounds at New No.58/A, Block No. 109, T.S.No.4816, R.S. No.41 Part in T.Nagar Village apart from other properties. 3.3 The stepmother Samaria Manjula had no issues and out of love and affection, she had executed a deed of release, releasing her right, title and interest over her undivided 5/32nd share in the property referred to above in favour of the petitioner and his brother on 13.11.2007 before the second respondent office. The stamp duty had been paid as per Article 58 Schedule-I of the Indian Stamp (Tamil Nadu Amendment) Act, 31 of 2004 apart from a sum of Rs.2,000/- as registration fees. 3.4 The second respondent has kept the said deed as pending document and withholds the same without referring it to the Collector for adjudication under Section 31 and Section 47 (A) of the Stamp Act. 3.5 On 02.08.2008, the second respondent issued a notice calling upon the petitioner to pay deficit stamp duty together with deficit registration fees. The said notice was received by him only on 09.08.2008. Challenging the said notice, the petitioner preferred a writ petition in W.P.No.21625 of 2008 before this Court. However, in the meantime, the second respondent has passed the impugned order dated 07.08.2008 under Section 40(1)(b) of the Stamp Act calling upon him to pay the deficit stamp duty. Hence, the petitioner has withdrawn the writ petition in W.P.No.21625 of 2008 with liberty to challenge the final order dated 07.08.2008. 3.6 As per Article 58 Schedule I of the Indian Stamp (Tamil Nadu Amendment) Act, @page-Mad172 31 of 2004, 'mother' shall include not only adoptive mother, but also stepmother. While so, the second respondent without considering the same, had directed the petitioner to pay deficit stamp duty together with deficit registration fees by the impugned order dated 07.08.2008. Hence, the petitioner has to approach this Court by filing the present writ petition challenging the said order. 4. Learned counsel appearing for the petitioner would mainly contend that (i) the second respondent ought to have referred the matter for adjudication before the Collector as contemplated under Section 31 of the Indian Stamp Act. The Collector thereupon shall examine and enquire for impounding such document under Section 33 and shall pass final orders under Section 49(1)(b) of the Stamp Act. In the case of hand, the second respondent has passed the impugned order directing the petitioner to pay the deficit stamp duty as well as registration fees. Thus, the impugned order had been passed by the second respondent, who has no jurisdiction to do so; (ii) the second respondent has no manner of right to keep the document with him without releasing the same even though general directions have been given by this Court in a judgment reported in 2001 2 M.L.J. 458, wherein it has been specifically held that the documents which have been submitted, have to

be registered and handed over to the concerned person and if any deficit stamp duty has to be payable, the matter has to be referred under Section 41-A of the Stamp Act by making an endorsement in the said document to that effect. 5. On the other hand, learned Government Advocate appearing for the respondents, on instructions, would submit that the second respondent who has acted as a District Registrar, is empowered to pass orders directing the parties to pay the deficit stamp duty and deficit registration fees as contemplated under Section 40(1)(b) of the Stamp Act. The notification to the effect would indicate that it is not correct to state that the second respondent has no jurisdiction to do so. As per Explanation to Article 58 of Schedule-I of the Indian Stamp (Tamil Nadu Amendment) Act, 31 of 2004, father, mother, husband, wife, son, daughter, grandchild, adoptive father, adoptive mother, adopted son and adopted daughter have been included as family members. Further, by the letter of the first respondent dated 10.08.2006, brothers and sisters have also been included as family members. While so, the document in question had been executed by the stepmother in favour of the petitioner and his brother and the same cannot be considered as an execution by the family members and hence, the deficit stamp duty and registration fees as required, have to be paid by the petitioner. 6. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 7. The facts which are not disputed are that (i) the petitioner's grandfather one S.V.Ranga Rao died intestate on 18.07.1974 leaving behind his wife Samaria Leelavathi and only son Koteswaran as his legal heirs; (ii) Samaria Leelavathi had executed a Will dated 15.11.1999 in respect of her 5/8th share and she died on 25.04.2000. On her death, the petitioner's father, the petitioner, his brother and sister acquired the properties; (iii) after the demise of the petitioner's mother S.Vijayalakshmi, his father married one Samaria Manjula in the year 1988; (iv) the petitioner's father Koteswaran died on 18.07.1989 intestate leaving behind Samaria Manjula, the petitioner, his brother and his sister to inherit the common undivided shares; (v) Samaria Manjula filed a suit for partition for allotment of her shares over the immovable properties before the learned Additional Senior Civil Judge at Eluru in O.S.No. 19 of 2007 which ended in a compromise wherein she was allotted 5/32nd share in the property, which is subject-matter in this writ petition; (vi) Samaria Manjula had executed a deed of release releasing her right over the said properties in favour of the petitioner and his brother; (vii) notice was issued by the second respondent dated 02.01.2008, to pay the deficit stamp duty as well as deficit registration fees;

(viii) against the demand notice dated 02.01.2008, the petitioner preferred a writ petition in W.P.No.21625 of 2008; (ix) in the meanwhile, the second respondent had passed the impugned order dated 07.08.2008 under Section 40(1)(b) of the @page-Mad173 Stamp Act calling upon the petitioner to pay the deficit stamp duty together with deficit registration fees; (x) in view of passing of the impugned order, W.P.No.21625 of 2008 was withdrawn with liberty to challenge the final order. 8. Learned counsel appearing for the petitioner would contend that as per Explanation to Article 58 of Schedule-I of the Indian Stamp (Tamil Nadu Amendment) Act 31 of 2004 (hereinafter referred to as Act), the word "family" shall include the stepmother also. According to the learned counsel, though father, mother, husband, wife, son, daughter, grandchild, adoptive father, adoptive mother, adopted son and adopted daughter alone were named as family members in the explanation to the said Article and later by the Government letter dated 10.08.2006 brothers and sisters were included as family members, it is not an illustrative one and exhaustive one thereby a strict appliance to be made. Furthermore, according to the learned counsel appearing for the petitioner, when adoptive mother could be considered as a family member, equally, the stepmother should also be considered as a family member. 9. However, learned Government Advocate appearing for the respondents would contend that a strict meaning should be taken for the word 'family' and Explanation to Article 58 of Schedule I of the said Act gives the list of persons who could be called as 'family members'. Since the stepmother is not one of the categories as defined in the explanation for the word 'family', the petitioner has to pay the deficit stamp duty for the document executed by the stepmother in favour of the petitioner and his brother.

10. However, I am unable to accept the contentions of the learned Government Advocate appearing for the respondents. Though Explanation to Article 58 of Schedule I of the said Act defines the persons coming under the word 'family', it could be said that it is only an illustration and not an exhaustive one. Therefore, strict meaning cannot be construed so as to include only those persons who have been named as 'family members'. Furthermore, when adoptive mother and adoptive father could be included as members of the family, it is neither legal nor logic to say that the stepmother could not be construed as a family member. 11. In the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (Tamil Nadu Act XVIII of 1960), members of the family in relation to the landlord is defined under Section 2 (6-A) of the said Act. There, it is stated that the members of the family of the landlord means his spouse, son, daughter, grandchild or dependent parent. The question whether the daughter in law would be construed as a member of the family arose before this Court in Civil Revision Petition Nos.1647, 1648, 1650 and 1651 of 1990. It has

been answered by this Court in the said revisions that the daughter-in-law could also be construed as a family member and the same is reported in 1991-2-L.W. 692 Madhurani Gupta and another v. Shairu Bux Damani and another. Considering the various pronouncement of the Hon'ble Apex Court as well as this Court, it has been held thereon that the word 'family' is one of the great flexibility; sometimes the word 'family' in a broad sense would mean all those who are connected by blood relationship or marriage and therefore, are to be considered as belonging to the family. Thus in Section 2(6-A) of the said Act, member of the family of a landlord has been defined to include spouse, son, daughter, grandchild or dependent parent and the daughter-in-law was also considered as a family member. Thus, the said illustration given thereunder may not be construed strictly. It depends upon the facts and circumstances of each case. In the given case on hand, excluding the stepmother that she is not a family member could be farfetching. The object of the legislation and the intent in which the word used are relevant. 12. Stepmother is one of the Class I heirs as per Hindu Succession Act, 1956 and she is a family member on par with the mother. This position cannot be disputed by the respondents. When stepmother could be classified as Class I heir as per Hindu Succession Act, 1956, there may not be any reason in excluding her for the purpose of explanation to Article 58 of Schedule I of the said Act while construing who are all the members of the family. As stated already, the illustration given thereon in the explanation to Article 58 of Schedule I of the said Act cannot be an exhaustive one so as to exclude the other persons even though they could be construed as family members. 13. In view of the reasons stated above, the other contentions raised by the learned counsel appearing for the petitioner may not @page-Mad174 be necessary to be considered in this writ petition. 14. Considering the above facts and circumstances, I am inclined to set aside the impugned order of the second respondent dated 07.08.2008 and the writ petition stands allowed. The respondents are directed to treat the deed of release executed by the stepmother of the petitioner in favour of the petitioner and his brother dated 13.11.2007 to be classified as, transaction between the family members as per Article 58 of Schedule-I of Indian Stamp (Tamil Nadu Amendment) Act 31 of 2004 and release the document in favour of the petitioner without insisting for the payment of deficit stamp duty and the deficit registration fees. The second respondent is directed to return the document to the petitioner, if it is otherwise in order, without insisting for the deficit stamp duty and deficit registration fees, within two weeks from the date of receipt of a copy of this order. No order as to costs. Consequently, connected miscellaneous petitions are closed. Petition allowed. AIR 2009 MADRAS 174 "Kalaivani v. K. U. Rajasekar" MADRAS HIGH COURT

Coram : 1 S. RAJESWARAN, J. ( Single Bench ) Kalaivani v. K. U. Rajasekar. C.M.S.A. No. 10 of 2007 and C. O. No. 48 of 2007, D/- 22 -12 -2008. Hindu Marriage Act (25 of 1955), S.13 - DIVORCE - Divorce - On ground of mental cruelty - Wife used to abuse and accuse husband and his family members - Her violent behaviour can be said to be due to nervous problem for which she was taking treatment - Nervous problem suffered by wife could not be proved as 'incurable insanity' as contemplated u/S.13(i)(iii) - Activities or behaviour of wife cannot be termed as mental cruelty on husband - Cruelty as envisaged u/S.13 should be of such severity and magnitude which is not ordinary differences and bickerings of opinion between spouses - Husband not entitled to divorce. (Para 21) Cases Referred : (2007) 4 SCC 511 Chronological Paras 10, 25

AIR 2006 SC 1675 : 2006 AIR SCW 1550 10, 24 AIR 2004 Mad 177 9, 23

S. Arun Kumar, for Appellant; S.V. Jayaraman Sr. Counsel for M.S. Veluswamy for Respondent. Judgement ORDER :- C.M.S.A. No. 10 of 2007 : The Civil Miscellaneous Second Appeal is filed against the judgment dated 26-10-2006 in C.M.A. No. 70 of 2005 on the file of Additional District and Sessions Judge, Fast Track Court No. IV, Poonamallee reversing the judgment in H.M.O.P. No. 32 of 2002 on the file of the subordinate Judge, Poonamallee, dated 2-9-2005. Cross Objection No. 48 of 2007 : The Cross Objection is filed against the judgment dated 26-10-2006 in C.M.A. No. 70 of 2005 on the file of Additional District and Sessions Judge, Fast Track Court No. IV, Poonamallee in so far as directing him to pay a sum of Rs. 5000/- per month to the wife. 2. The respondent/wife in H.M.O.P. No.32 of 2002 is the appellant before this Court. 3. The respondent herein/husband filed H.M.O.P. No. 32 of 2002 under Sec. 13(1)(ia) and (iii) of the Hindu Marriage Act, for dissolving the marriage dated 27-3-1986 solemnised between the appellant/wife and the respondent/husband herein. 4. The case of the respondent/husband in H.M.O.P. No. 32 of 2002 is that, the marriage between them was solemnised at Vellore on 27-3-1986 as per Hindu rights and customs. Two children were born to them during the course of the marriage and right from the first day, the appellant/wife used to create and quarreled with the respondent/husband regularly. During the year 1989, the appellant/wife left the

matrimonial home with her two years child in the early hours and the respondent/husband immediately rushed to the bus stop and brought them back to their house. The respondent/husband found the appellant/ wife abnormal and admitted her in a hospital in Avadi for two days. The Doctors informed him that she is suffering from neuro disorder. Thereafter, they resided together till 1992. Even during this period, the activities of the appellant/wife were not changed. In the month of August, the respondent/husband was posted to Nagpur for a training. When he requested the appellant/wife to stay in his parents house for a month, she refused and she wanted to go to her parents house. She always threatened him by saying that she would commit suicide @page-Mad175 by pouring kerosene on her or by taking poison or by hanging herself. After completing the training, the respondent/husband was posted to Medak near Hyderabad. The respondent/husband took the appellant/wife and their children to Medak and there also, she used to treat the respondent/husband in a cruel manner. In February 1995, she administered poison namely Laxman Rekha Cockroach Poison. Immediately, he took her to the hospital and saved her after treatment. In May 1995, when they were travelling by bus from Hyderabad to Madras, the appellant/wife quarreled with the respondent/husband and she also removed the thali and threw it at the face of the respondent/husband. Her behaviour became unbearable in May 1996 and only at that time, the respondent/husband realised that she is not mentally healthy and admitted her in a hospital. The Doctors after examining her diagnoised that she is suffering from mental disorder and she used to be treated by psychiatrists. The respondent/husband took her to Chennai and she was treated by psychiatrist by name Dr. Peter Fernandez at Sri Ramachandra Hospital, Porur. The Doctors diagnoised that she is suffering from psychopathetic disorder like Schizophrenia. The appellant/wife was under treatment till 1999 when he was transferred to Japalpur. The respondent/husband took his two challan to Japalpur and the appellant/wife stayed with her parents at Porur. Again he was transferred to Chennai in the month of November 2001 and the atrocities of the appellant/wife continued and she used to abuse and accuse the respondent/husband and his family members. According to the respondent/husband there is no possibility to cure the appellant/wife and he is not able to put up with the torture. Hence, he filed H.M.O.P. No. 32 of 2002 for the aforesaid relief. 5. H.M.O.P. No. 32 of 2002 was resisted by the appellant herein by filing a counter. According to her, the marriage life sailed smoothly for a few years only. Thereafter, the attitude of her husband changed as he developed all sorts of vices. The respondent/ husband lived a lavish life and he did not care for the family. She was affected mentally because of whimsical behaviour of the husband only/Further, he deserted her and treated her cruelly. Hence she prayed for the dismissal of the petition. 6. The sub Court, Poonamallee by order dated 2-9-2005 dismissed the H.M.O.P. No. 32 of 2002 and aggrieved by the same, the respondent/husband filed C.M.S.A. No. 70 of 2005 before the Fast Track Court No. 4, Poonamallee. The lower Appellate Court by order dated, 26-10-2006, allowed the appeal on the ground of mental cruelty while concurring with the trial Court that the respondent/husband has failed to establish a case under Sec. 13 (i) (ia) of the Act. While dissolving the marriage between the parties, the lower Appellate Court directed the respondent/husband to pay a monthly maintenance of

Rs. 5000/- to the appellant/wife from the date of the appeal in consideration of her health. Aggrieved by the order of the lower appellate Court, the wife has filed the above Civil Miscellaneous Second Appeal under Sec. 28 of the Hindu Marriage Act read with Sec. 100 of C.P.C. The husband has also filed a crossobjection No. 48 of 2007 in so far as directing him to pay a sum of Rs. 5000/- per month to the wife. 7. On 28-6-2007, this Court ordered notice and granted interim stay. 8. Heard the learned counsel for the appellant/wife and the learned senior counsel for the respondent/husband. I have also perused the documents and judgments filed in support of their submissions. 9. The learned counsel for the appellant submits that the lower Appellate Court has committed an illegality in granting the divorce on the ground of cruelty when the respondent/husband has failed to prove them form of cruelty with sufficient materials. Therefore, according to him, a substantial question of law arises in this appeal as to whether the lower Appellate Court has not correctly evaluated the evidence to come to the conclusion that the respondent/husband has proved that the appellant/wife has committed the acts of cruelty as per Sec. 1 (ia) of the Hindu Marriage Act. In support of his submissions, the learned counsel for the appellant relies on the following decisions : 1. 1959 Ker 358 (Damodaran v. Karimba Plantations Co. Ltd. and others) 2. 2004 (1) C.T.C. 26 : (AIR 2004 Mad 177) (Palanivelu v. Meenakumari) 10. Per contra, the learned Senior Counsel appearing for the respondent/husband submits that there is no question of law much less a substantial question of law arises for consideration in this appeal and on that ground alone, the appeal is to be @page-Mad176 dismissed. He further submits that the first appellate Court is the final Court of facts and the Lower Appellate Court has correctly evaluated the evidence and granted divorce on the basis of the evidence adduced before it which cannot be interfered with by this Court. He further adds that even otherwise the marriage between the parties has broken down irretriavably and in such circumstances, the divorce granted by the Lower Appellate Court need not be interfered with by this Court. In support of his submissions, the learned Senior counsel relied on the decisions of the Hon'ble Supreme Court reported in 1. 2006 (4) SCC 558 : (AIR 2006 SC 1675) (Naveen Kohil v. Neelu Kohli) 2. 2007 (4) SCC 511 (Samar Ghosh v. Jaya Ghosh). 11. The learned Senior counsel while arguing the cross objections, submitted that having granted the divorce on the ground of cruelty, it is not open to the First Appellate Court to direct the respondent to pay a sum of Rs. 5000/- per month in the absence of any evidence and also when the appellant/wife herself has not asked for any maintenance. Therefore, according to him that part of the order in C.M.A.

No. 70 of 2005 directing the respondent/husband to pay a monthly maintenance of Rs. 5000/- is unsustainable and the same is to be set aside. 12. I have considered the rival submissions carefully with regard to facts and citations. 13. In C.M.S.A. No. 10 of 2007, the following substantial questions of law were raised by the appellant/wife, namely : (A) Whether the First Appellate Court is right in not appreciating the evidence let in by the Appellant? (B) Whether the First Appellate Court is right in granting a decree of divorce having disbelieved the evidence of the respondent? (C) Whether the First Appellate Court is correct in reversing the decree granted by the trial Court without appreciating the conduct of the respondent? (D) Whether the First Appellate Court is right in granting any relief under Sec. 13(1) (1-a) having held that the ingredients of Sec. 13 (1) (iii) have not been satisfied by the respondent? 14. Even though the above said substantial questions of law were raised by the appellant, all the four questions could be converted into a single substantial question of law; namely, whether the First Appellate Court has correctly re-evaluated the evidence to come to the right conclusion that the appellant/wife is guilty of cruelty as per Sec. 13(1) (ia) of the Hindu Marriage Act. 15. Now, let me proceed to answer the above modified substantial question of law that arises for consideration in this appeal. 16. Admittedly, the H.M.O.P. No. 32 of 2002 has been filed by the respondent/husband under Sec. 13 (1)(ia) and (iii) of the Hindu Marriage Act, seeking for the relief of dissolution of the marriage dated 273-1986 solemnised between them. It is on record that the trial Court dismissed the petition on both the grounds and the Lower Appellate Court allowed the appeal and granted divorce on the ground of cruelty as per Sec. 13(1) (ia) of the Hindu Marriage Act. The Lower Appellate Court has also found that the respondent/husband has failed to prove his case under Sec. 13(1)(iii) of the Hindu Marriage Act. Therefore, in so far as the ground of insanity is concerned, the same was rejected by both the Courts below and there is no challenge to this by the respondent/husband before this Court. In fact, in the cross objection No. 48 of 2007 filed by the respondent/husband, he was only questioning that portion of the order of the Lower Appellate Court, directing him to pay a sum of Rs. 5,000/- per month as maintenance to the appellant/wife. Therefore this Court would not be going into the question of insanity of the appellant/wife as pleaded by the respondent/husband in H.M.O.P. No. 32 of 2002. 17. Now coming to the question of cruelty, what was pleaded in the petition by the respondent/husband is that, the appellant/wife used to create problem and quarrelled with him regularly, she started to create scenes at public, she left the matrimonial home with her two years old child in the early hours in 1989, she refused to stay with the respondent's parents, she threatened to commit suicide, she removed the thali and threw it at him and she used to abuse and accuse the

husband and his family members. Even according to the respondent/husband, the appellant/wife took treatment in the hospital for some nervous problem and therefore, some of her behaviour and activities were due to these nervous problems. @page-Mad177 18. As per Section 13(1)(iii) of the Hindu Marriage Act, 1955, a marriage may be dissolved by a decree of divorce on the ground that the other party has been incurably of unsound mind or has been suffering continuously or intermitantly from mental disorder of such kind and to such an extent the petitioner cannot reasonably be expected to live with the respondent. According to Section 13(1)(iii) of Hindu Marriage Act, what is to be established is, an incurable unsoundness of mind or a mental disorder of such kind and to such an extent that nobody can be expected to live with a person of such an unsoundness of mind, which is incurable or such a mental disorder which could not be coped with. As seen already, the respondent/husband has failed to prove a case under Section 13(1)(iii) of Hindu Marriage Act, even though the wife has been admitted in hospital for some nervous problems. In such circumstances, the activities and behaviour of the appellant/wife which were sought to be projected as acts of cruelty by the respondent/husband, could be due to the nervous problem suffered by the wife which is not proved as incurable by the respondent/husband. This aspect has not at all been adverted to by the Lower Appellate Court. 19. The trial Court after finding that no case has been made out under Section 13 (1)(iii) of the Hindu Marriage Act, found that the respondent/husband is also resbonsible for the mental agony of the appellant/wife and, therefore, the respondent/husband has not proved cruelty as contemplated under Section 13(1)(ia) of the Hindu Marriage Act. 20. The Lower Appellate Court while concurring with the trial Court that the respondent/ husband has not made out a case under Section 13(1)(iii) of the Hindu Marriage Act, found that the act of cruelty on the part of the appellant/wife has been proved by the respondent/ husband and granted the decree of divorce on that score. To come to the conclusion that the wife is guilty of cruelty, the lower Appellate Court took the following incidents namely : 1) In 1989, the appellant/wife took her two years old child and left the house without any information; 2) the threatenings of the appellant/wife to commit suicide by pouring kersone; 3) the consumption of Laxman Rekha by the appellant/wife in the year 1995; and 4) the evidence of the P.W. 2 who is the first son of the appellant/wife who deposed that there will be a fight between his parents far simple reasons, which caused mental stress and he would have done well in the exams had these fights been avoided. 21. After going through the order of the Lower Appellate Court, I am of the considered view that the Lower Appellate Court has come to the wrong conclusion on the basis of the evidence adduced by the parties by holding that the mental stress has been proved by the respondent/husband to get an order of divorce on the ground of cruelty. First of all, the First Appellate Court has failed to advert to the fact that

some of the activities and behaviours of the appellant/wife could be due to the illness she suffered, for which, she took treatment. It has been concurently held by both the Courts below, the respondent/husband has miserably failed to prove a case under Section 13(1)(iii) of the Act. If that being so, the ordinary frictions and fights between the husband and wife could not be categorised as acts of cruelty as contemplated under Section 13(1)(ia) of the Act. In every marriage life between the husband and wife, there are always bickerings and quarrels due to ordinary wear and tear of the routine marriage life. If these ordinary wear and tear of the marriage life could be considered as act of cruelty, the same could be proved by all the parties who are coming to the Courts. But, that is not the intention of the legislature in introducing Section 13(1)(ia) of the Hindu Marriage Act, according to which, the cruelty contemplated thereon, should be of such magnitude and severity, which is not ordinary bickerings and differences of opinion between the husband and wife. If, in this context, the evidence adduced before the trial Court is evaluated, I am of the considered view that the respondent/husband has hardly made out a case for divorce under Section 13(1)(ia) of the Act. 22. In AIR 1959 Ker 358 (cited supra), a Division Bench of the Kerala High Court while dealing with Section 83 and 60 of the Evidence Act, found that the trustworthiness and accuracy of the evidence must be proved or otherwise requirement of Section 83 are not satisfied. 23. In 2004 (1) CTC 26 : (AIR 2004 Mad 177) (Palanivelu v. Meenakumari), this Court held that mental cruelty is difficult to be established by direct evidence which is state of mind. The courts should take the cumulative @page-Mad178 evidence of facts and circumstances emerging from evidence on record and then draw the fair inference whether the petitioner in divorce petition has been subjected to mental cruelty due to the conduct of the other. The relevant portion of the order reads as under : "9. With regard to the allegation of mental cruelty, the appellant/husband had been subjected to by the respondent/wife, mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other, vide Praveen Mehta v. Inderjit Mehta, 2002 (5) SCC 796. But, in the instant case, the appellant/ husband failed to prove the allegations of mental cruelty by the respondent/wife with any evidence."

24. In (2006) 4 SCC 558 : (AIR 2006 SC 1675) (cited supra), the Hon'ble Supreme Court held that cruelty may be physical or mental and each case has to be decided on its merits. The Hon'ble Supreme Court further held that when the parties are living separately for a sufficient length of time and one of them presents a petition for divorce decree, it can be presumed that the marriage has been broken down irretrievably and irretrievably broken down marriage is a ground for divorce. 25. In (2007) 4 SCC 511 (cited supra), the Hon'ble Supreme Court held that there cannot be any comprehensive definition of mental cruelty, out of which, all kinds of mental cruelty can be covered. There can never be any straight jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking the various factors into consideration. In the very same decision, the Hon'ble Supreme Court held that irretrievably breakdown of the marriage is also a ground for divorce. 26. In the light of the above decisions also, I am to hold that the respondent/husband has not made out a case for divorce on the ground of mental cruelty on the peculiar facts and circumstances of the present case. The first appellate Court has not properly re-evaluated the evidence to come to the conclusion that the respondent/husband has proved cruelty on the part of the appellant/wife as per Section 13(1)(ia) of the Act. As the Court below has failed to come to the correct conclusion on the basis of the evidence adduced before it, it is certainly a substantial question of law and in this case, I am answering the substantial question of law in favour of the appellant/wife and against the respondent/husband. 27. In the result, the Civil Miscellaneous Second Appeal is allowed. No cost. Connected miscellaneous petition is also closed. 28. As I have set aside the order of the First Appellate Court in its entirety, I am also allowing the Cross Objection filed by the respondent/husband. Consequently, Cross Objection No. 48 of 2007 is also allowed. Order accordingly. AIR 2009 MADRAS 178 "Usha Ranganathan v. N. K. V. Krishnan" MADRAS HIGH COURT Coram : 1 S. PALANIVELU, J. ( Single Bench ) Usha Ranganathan v. N. K. V. Krishnan and Anr. C.R.P. (P.D.) No. 4010 of 2008 and M.P. No. 1 of 2008, D/- 28 -4 -2009. Civil P.C. (5 of 1908), O.3, R.1, R.2 - CIVIL PROCEDURE - POWER OF ATTORNEY - Power of Attorney Defendant sought to prosecute and give evidence through substituted power of attorney - Power of

attorney can only conduct case - Power of Attorney cannot be allowed to depose on behalf of defendants as matters which would be within knowledge of defendant. AIR 2005 SC 439, Relied on. @page-Mad179 Cases Referred : Chronological Paras (Paras 6, 7)

AIR 2005 SC 439 : 2004 AIR SCW 7064 (Rel. on) 5 Mrs. Hema Sampath, Sr. Counsel for Mrs. R. Meenal, for Petitioner. Judgement ORDER :- The respondents are defendants in O.S. No. 251 of 2008. At the outset they were represented by one C. Ramesh, who was conducting their case on their behalf, as their Power of Attorney. They filed application in I.A. No. 1440 of 2008 stating that the Power of Attorney Mr. C. Ramesh suddenly left them, which necessitated to cancel the Power of Attorney given to him on 19.09.2008 and on the same day they executed Power of Attorney deed in favour of one Mr. D. Nagarajan and hence he may be recognised as Power of Attorney for the defendants and be permitted to give evidence and prosecute the above case on behalf of defendants by substituting his name in place of Mr. C. Ramesh. 2. The said petition was resisted by filing the counter by the respondent/plaintiff by stating that on various hearings the defendants did not come forward to adduce evidence, even though they were afforded with ample opportunity; that the perusal of the notes paper would go to show that they have obtained various adjournments to let in evidence; that only to drag on the proceedings they filed the application and the Power of Attorney cannot be substituted in place of Mr. C. Ramesh and he can speak only to the acts subsequent to his appointment as Power of Attorney and hence the petition has to be dismissed. 3. Learned District Munsif, Madhuranthakam, has allowed the application by recording observation that even though it could be understood that the present petition has been filed to protract the proceedings, still in order to provide an opportunity to the defendants also to expedite the trial of the suit, the petition has to be allowed, by which the plaintiff would not be put to prejudice. 4. Learned counsel for the petitioner would contend that the prayer in the Interlocutory Application contains a request for examination of Power of Attorney in place of the defendants, which is not recognised by law and the petition has to be dismissed. 5. The learned counsel for the petitioner placed much reliance on a decision of Supreme Court reported in 2005 (3) LW 403 : (AIR 2005 SC 439) [Janki Vashdev Bhojwani and another v. Indusind Bank Limited and others] wherein Their Lordships while dealing Order 3, Rules 1, and 2 of C. P. C explained the scope of the phrase "to act" and held that the word "act" would not include adducing oral evidence on behalf of his principal for the acts done by the principal and not by him and that he cannot depose for the

principal in respect of the matter which only the principal can have a personal knowledge. The relevant portion of the judgment is as follows : "13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2, CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined." 6. Following the ratio laid down in the abovesaid decision, it is held that though the Power of Attorney may be permitted to conduct the case on behalf of his principal, while the stage of the case reaches recording of evidence, he is precluded from deposing on behalf of his principal as to matters which would be within his personal knowledge. 7. In such view of this matter, it is observed that a new Power of Attorney Mr. D. Nagarajan can conduct the case on behalf of the respondents/defendants except giving oral evidence on their behalf. 8. With the above said observation, the Civil Revision Petition is disposed of. No costs. Connected M.P. is closed. Order accordingly. @page-Mad180 AIR 2009 MADRAS 180 "Valarmathi Oil Industries v. Saradhi Ginning Factory" MADRAS HIGH COURT Coram : 1 S. TAMILVANAN, J. ( Single Bench ) M/s. Valarmathi Oil Industries and Anr. v. M/s. Saradhi Ginning Factory. Cri. R.C. No.1857 of 2007, D/- 15 -4 -2009. Legal Services Authorities Act (39 of 1987), S.20(1), S.21 - LEGAL SERVICES AUTHORITIES - LOK ADALAT EXECUTION - DISHONOUR OF CHEQUE - Award of Lok Adalat - Executability - During pendency of complaint u/S.138 of Negotiable Instruments Act parties agreed for settlement - Matter referred to Lok Adalat - Award passed by Lok Adalat based on consensus arrived at between parties - However, award came to be wrongly referred to Magistrate - Considering non-compliance of award Magistrate convicted accused u/S.138 of N.I. Act - Held, illegal - Judicial Magistrate becomes functus officio to decide case after award is passed by Lok Adalat - Award is executable as decree as per S.21 of Act. (Paras 13, 14)

Ilanthiraian, for M/s. Sai Bharath and Ilan, for Petitioners; S. Ashok Kumar, for Respondent.

Judgement ORDER :- This revision petition has been preferred against the order, dated 14.11.2007 made in C.M.P. No. 4686 of 2007 in C.A. No. 167 of 2007 on the file of the Principal District and Sessions Judge, Salem. 2. It is an admitted fact that the case in C.C. No. 308 of 2006 was taken on file by the learned Judicial Magistrate No. I, Salem on the complaint given by the respondent herein that the cheque was issued by the second petitioner herein on behalf of the first petitioner as partner of the firm, however, the same was dishonoured by the bank, due to insufficient funds. According to the respondent, after issuance of the legal notice to the petitioner, the complaint was given under Section 138 of the Negotiable Instruments Act against the petitioners. During the pendency of the criminal case, at request of both the parties, the matter was referred to Lok Adalat for settlement. It is seen that the matter was referred to Lok Adalat under Section 20(1)(i)(b), 20(1)(ii) of Legal Services Authorities Act (Act 39/1987). 3. Both the parties were present before Lok Adalat and as per the award, they agreed for the settlement and accordingly, the petitioner/accused, agreed to pay Rs. 3,75,000/- (Rupees three lakhs and seventy five thousand only) to the respondent herein on or before 03.09.2007. It was signed by the respondent/complainant, petitioners/accused and their respective counsel. In view of the compromise arrived at between both the parties, the amount payable by the accused/respondent was fixed at Rs. 3,75,000/- towards full quit of the claim and that the petitioners herein agreed to pay the abovesaid amount on or before 03.09.2007 and accordingly, the award was passed and placed before the Judicial Magistrate Court for further orders. 4. It is seen that on 03.03.2007, the award was passed by the learned Judge and two other members by affixing their signatures, however, the learned Judicial Magistrate, by his Judgment, dated 17.10.2007, based on the award held that the petitioners herein guilty and convicted under Section 138 of Negotiable Instruments Act, accordingly, imposed sentence of one year simple imprisonment and directed the petitioners herein to pay a sum of Rs. 3,75,000/- as compensation to the respondent. Aggrieved by which, the petitioners/accused preferred appeal in C.S. No. 167 of 2007 before the Sessions Judge, Salem. 5. The learned Sessions Judge, Salem, by order, dated 14.11.2007 suspended the sentence of imprisonment till 16.12.2007 and directed the petitioners/accused to deposit the sum of Rs. 3,75,000/before the trial court and clarified that in case of failure of depositing the amount, the order of suspension of sentence would stand cancelled automatically and the petitioners were also directed to execute a bond for Rs. 10,000/- with two sureties each for the like sum to the satisfaction of the trial court. Aggrieved by which, this criminal revision has been preferred. 6. Mr. Ilanthiraian, learned counsel appearing for the petitioners submitted that as per Section 21 of the Legal Services Authorities Act, 1987, every award of the Lok Adalat shall be deemed to a decree of civil court and, therefore, after the award passed by the Lok Adalat, the respondent/complainant was entitled to execute the award like a decree of the civil court, however, in the instant case, the learned Magistrate, by his Judgment has found the petitioners guilty under Section 138 of Negotiable

Instruments Act and also convicted and sentenced them to undergo one year simple imprisonment and to pay the compensation of Rs. 3,75,000/-. @page-Mad181 7. Section 21(2) of the Legal Services Authorities Act, 1987 reads as follows : "Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall lie to any court against the award." 8. In the instant case, admittedly after the case was referred to Lok Adalat, there was a consensus between the parties, accordingly, the petitioners herein had agreed to pay Rs. 3,75,000/- to the respondent on or before 03.09.2007. Though the award was signed by both the parties, their counsel and the Judge along with two other members, it was wrongly referred to the Magistrate again. Considering the non-compliance of the award, the Magistrate convicted the second petitioner, who was also a partner of the first respondent-firm, under Section 138 of Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and to pay a fine of Rs. 3,75,000/- as compensation to the respondent. 9. The question of law involved in this criminal revision petition is whether the Magistrate can convict the petitioners/accused under Section 138 of Negotiable Instruments Act, after the award was passed in the Lok Adalat. 10. By the impugned order, dated 14.11.2007, the learned Sessions Judge, considering the award passed by the Lok Adalat has granted only limited stay, directing the petitioners to pay Rs. 3,75,000/- as a condition precedent. 11. As per Section 21(1) of the Legal Services Authorities Act, 1987, the award passed by a Lok Adalat is final and binding on all the parties to the dispute and no appeal shall lie. In this case, it is not in dispute that there was an award passed by the Lok Adalat, based on the consensus arrived at between the parties and for which, the parties and their respective counsel have signed. Then the award was signed by the Judge and the members of the Lok Adalat, therefore, the award could be construed as contemplated under Section 21 of the Legal Services Authorities Act a decree, passed by a civil court. As per the award, it is seen that the petitioners/accused had agreed to pay the said award amount on or before 03.09.2007, but subsequently, fail to pay the amount. In such circumstances, the remedy available to the respondent is similar to that of decree-holder, who obtained a decree through civil court, his remedy is executing a decree passed by a civil court. 12. Learned Magistrate, without considering the mandate of Section 21 of the Legal Services Authorities Act, 1987, has convicted the petitioners/accused under Section 138 of Negotiable Instruments Act and sentenced the second petitioner to undergo one year rigorous imprisonment, apart from directing him to pay Rs. 3,75,000/- as compensation to the respondent. 13. Had there been no settlement in the Lok Adalat, the learned Magistrate could have proceeded with the trial and deliver his Judgment, for which, there is no bar. In the instant case, as admitted by both the

learned counsel, there was an award passed in the Lok Adalat, based on the consensus arrived at between the parties. As per the award, the petitioners/accused had to pay Rs. 3,75,000/- to the respondent/complainant on or before 03.09.2007. As it is an award made by Lok Adalat, it is final and binding on the parties to the criminal revision and as contemplated under Section 21(2) of the Act, no appeal shall lie to any court against the award. 14. In such circumstances, the petitioners could have filed the Execution Petition before the appropriate court, seeking the award amount to be paid with interest and costs. In such circumstances, it is clear that the learned Judicial Magistrate became functus officio, to decide the case after the award passed by Lok Adalat, to convict the accused under Section 138 of Negotiable Instruments Act, hence, the impugned order passed by the learned Sessions Judge is also not sustainable in law, however, it is clear that the petitioners/ accused herein after having given consent for Lok Adalat award being passed and also the award amount agreed to pay Rs. 3,75,000/- on or before 03.09.2007 to the respondent, have not complied with their undertaking made before the Lok Adalat, which cannot be justified. However, the order passed by the learned Judicial Magistrate under Section 138 of Negotiable Instruments Act has to be set aside, in view of the Lok Adalat award passed under Section 20(1)(i)(b), 20(1)(ii) of Legal Services Authorities Act (Act 39/1987), as the Judicial Magistrate became functus officio and the award is an executable decree in the eye of law, as per Section 21 of the Act. 15. In the result, this criminal revision petition is allowed and the impugned order @page-Mad182 passed by the learned Sessions Judge, confirming the Judgment of the learned Judicial Magistrate No. I, Salem made in C.C. No. 308 of 2006 is set aside. 16. However, it is made clear that as per the award passed by the Lok Adalat, the respondent/complainant is at liberty to file Execution Petition before the appropriate court to get the award amount Rs. 3,75,000/- (Rupees Three lakhs and seventy five thousand only) reimbursed with subsequent interest and costs, as per procedure known to law. Petition allowed. AIR 2009 MADRAS 182 "A. Valliammal v. Jayanthi" MADRAS HIGH COURT Coram : 1 G. RAJASURIA, J. ( Single Bench ) A. Valliammal v. Jayanthi and Ors. S.A. No.891 and M.P. No. 1 of 2008, D/- 27 -4 -2009. Transfer of Property Act (4 of 1882), S.106 - LEASE - POSSESSION - TENANCY - EVICTION - Recovery of possession - Permissive occupancy - No landlord and tenant relationship existed - Plaintiff and defendants being close relatives, defendants were allowed to occupy suit premises - Termination of

tenancy by way of quit notice u/S.106 of said Act cannot be invoked - Instead, letter terminating said permissive occupancy valid - Plaintiff entitled to right of occupancy over suit premises being life estate holder - Eviction allowed, defendants were directed to vacate suit premises. (Paras 7, 9)

B. Chrisdas, for Appellant; P.B. Ramanujam, for Respondents. Judgement JUDGMENT :- This second appeal has been filed by the plaintiff, animadverting upon the judgement and decree dated 21.1.2008 passed by the learned V Additional City Civil Judge, Chennai, in A.S. No. 414 of 2006, confirming the judgement and decree dated 19.4.2006 passed by the learned 1st Asst. City Civil Court, Chennai, in O.S. No. 5176 of 2004. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus : (a) The appellant/plaintiff filed the suit O.S. No. 5176 of 2004 as against the defendants, seeking the following reliefs : "i. To direct the defendants to quit and deliver vacant possession of the suit property; ii. To pay the mesne profits arising out of the property both past and future." (extracted as found in the plaint) as against which, the defendants filed the written statement and resisted the suit. (b) During enquiry, the trial Court framed the relevant issues. The plaintiff examined herself as P.W. 1 along with one Sekar as P.W. 2 and Exs. A1 to A. 5 were marked. The second defendant examined himself as D.W. 1 along with one R. Janaki as D.W. 2 and no documents were got marked. (c) Ultimately the trial Court dismissed the suit, as against which, the plaintiff filed the A.S. No. 414 of 2006, for nothing but to be dismissed by the first appellate Court, confirming the judgment and decree of the trial Court. 3. Being disconcerted and aggrieved by the judgments and decrees of both the Courts below, this second appeal has been focussed by the plaintiff on various grounds. 4. My learned predecessor, admitted the second appeal on the following substantial questions of law : "1. Whether the decree and judgment of the appellate Court is legally sustainable in view of the fact that the appellate Court failed to take into account Ex. A1., viz., a letter terminating the permissive occupation which is valid in law?

2. Whether the appellate Court was right in seeking to apply the provisions of the Transfer of Property Act, ignoring the admission of permissive occupation?" 5. Heard the learned counsel appearing for the appellant/plaintiff and the learned counsel appearing for the respondents/defendants. 6. A poring over and perusal of the typed set of papers, including the certified copies of the judgments and decrees of both the Courts below, would exemplify and display that the appellant/plaintiff filed the suit for recovery of possession on the ground that she is a life estate holder, as per Ex. A1 the probated 'Will' dated 11.8.1978 and both the Courts below erroneously dismissed the plaintiff's suit on the ground that there was no proper termination of tenancy as per Section 106 of the Transfer of Property Act. @page-Mad183 7. The learned counsel for the plaintiff would appropriately and appositely, correctly and convincingly put forth and set forth, highlight and spotlight the fact that Section 106 of the Act could be ushered in only in cases where there existed landlord and tenant relationship and not in a case where there was no such relationship; here, the plaintiff and the defendants are close relatives; undoubtedly, the plaintiff is having the right to enjoy the suit property during here lifetime by leasing it out or by enjoying it in any manner as she likes and the defendants, being some of the vested reminders could claim right of occupancy as well as right to meddle with the property only after the death of the plaintiff the life estate holder and in such a case, both the Courts were wrong in ushering in Section 106 of the Act and failed to recognise Ex. A4 the notice dated 7.8.2004 sent by the plaintiff to the defendants, as the valid one, which called upon the defendants to vacate the suit premises. The learned counsel for the plaintiff also would submit that because the defendants happened to be the close relatives, the plaintiff permitted them to occupy the suit premises, but they proved themselves a scourge to her welfare as well as they were giving lot of mental agony to the plaintiff, which actuated and accentuated, propelled and impelled her to file the suit for eviction, as otherwise this litigation would not have emerged at all. 8. Whereas, the learned counsel for the defendants would submit that if the plaintiff, after evicting the defendants, leases out the property to any third party, after the death of the plaintiff it would be a very difficult task, so as to say a Herculean task to the vested remainders to evict them. Considering the pro et contra, in these circumstances, it is crystal clear that both the Courts below were perverse in their approach to the issue and accordingly, their findings and the ultimate conclusions should be set aside. 9. I would even go to the extent of pointing out that both the Courts below were unable to see the wood for tree and without categorical imperative to view the matter properly, they simply approached the problem perfunctorily without au fait with law and negatived the legitimate claim of the plaintiff. Hence, the judgements and decrees of both the Courts below are set aside and the original suit is decreed by allowing this second appeal and directing the defendants to vacate the suit premises within three months from the date of receipt of copy of this order.

10. Accordingly, second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. Appeal allowed. AIR 2009 MADRAS 183 "New Galaxy Netcom v. S. C. V." MADRAS HIGH COURT Coram : 2 S. J. MUKHOPADHAYA AND V. DHANAPALAN, JJ. ( Division Bench ) New Galaxy Netcom v. S. C. V. O.S.A. No. 230 of 2008, D/- 15 -5 -2009. Telecom Regulatory Authority of India Act (24 of 1997), S.14, S.15, S.27, S.2 - Civil P.C. (5 of 1908), S.9 TELEGRAPH - CIVIL COURT - WORDS AND PHRASES - Bar as to jurisdiction of Civil Court - In respect of disputes arising between licensor and licensee or service providers and consumers - Dispute relating to specific performance arose between parties to franchisee agreement - Franchisee who carries signal of licencee through its cables to consumers is neither 'licensee' nor 'service provider' nor 'consumer' as defined u/S.2 - Dispute not covered u/S.14 and does not fall within jurisdiction of Appellate Tribunal Jurisdiction of Civil Court not barred. Plain language of S. 2(1)(j) of the Act shows that the Government and a licensee under the Indian Telegraph Act alone are included within the meaning of word "service provider". As per the Cable Television Networks Rules, 1994, "Cable Operator" is a person who is licensed under a different enactment by the Superintendent of Post Offices and on being satisfied that the applicant fulfils the provisions of Ordinance, registering authority shall issue registration certificate in Form 3. So, the definitions of 'multi system operater' and 'cable operators' under Telecommunication (Broadcasting and Cable Services) Intercommunction Regulations, 2004 cannot be imported into Section 2(1)(j) of the Act. A Special Tribunal constituted under a special enactment can exercise only a jurisdiction vested in it by statute and cannot be conferred with special jurisdiction by judicial pronouncement, by adopting a circuitous process and a circumventing interpretation. The Act does not give any scope for importing those definitions @page-Mad184 into the provisions of Act, especially when the Act itself contains the definitions of words. AIR 2003 SC 899; 2007 AIR SCW 5363; 2006 (4) SCC 130(1); 2006 (4) SCC 130(2) Disting. (Paras 12, 13, 14, 15) Cases Referred : Chronological Paras 5, 6, 16

2007 AIR SCW 5363 : 2007 CLC 1647 (Disting.) 2006 (4) SCC 130 (1) (Disting.) 5, 16

2006 (4) SCC 130 (2) (Disting.)

5, 16

AIR 2004 SC 2258 : 2004 AIR SCW 2586 6 AIR 2003 SC 899 : 2003 AIR SCW 366 (Disting.) 5, 6, 16 AIR 1991 SC 1289 : 1991 Cri LJ 1347 : 1991 Lab IC 1013 : 1991 AIR SCW 960 (1949) 2 All ER 155 6 6

M. Sunder, for Appellant; Vijay Narayanan, Sr. Counsel, for Girish Neelakandan, for Respondents. Judgement V. DHANAPALAN, J. :- Respondent is the plaintiff, who filed the suit for a permanent injunction against the appellant/defendant restraining him from in any way acting in violation of the Franchisee Agreement dated 14.04.2003 and refraining from disconnecting the link or discontinuing the transmission or signals or from in any way taking signals or links from third parties to carry on any competing business directly or indirectly either by themselves or in association with any other persons or through their subsidiary affiliates or by joint venture for the purpose of broadcast or distribution or transmission of any satellite television channels through Community Antenna Television System other than that of the respondent and for costs. 2. Respondent is a Multi System Operator, distributing satellite television channels in Tamil Nadu through Cable Operators by supplying signals to them through the cables installed by him, for which purpose he entered into a Franchisee Agreement with the Cable Operators. 3. Under the Franchisee Agreement, the appellant had undertaken not to discontinue the facility provided by the respondent and not to take the link and distribute the signals of any third parties during the currency of the agreement. Since the appellant, according to the respondent, attempted to commit a breach of the obligations under the Franchisee Agreement, the suit was filed for the relief stated supra. 4. Pending suit, ad interim injunction was granted and, after service of notice in the application for injunction, the appellant filed Application No. 1253 of 2008, seeking rejection of the plaint, which was dismissed by a learned single Judge. Aggrieved over the said order of dismissal, this O.S.A. is filed. 5. The one and only contention of the learned counsel for the appellant is that the suit is hit by Sections 15 and 27 of the Telecom Regulatory Authority of India Act, 1997 and, therefore, the plaint is liable to be rejected. The learned counsel has relied upon the following decisions : (i) Cellular Operators Association of India and Others v. Union of India and others, 2003 (3) SCC 186 : AIR 2003 SC 899. "8....It is not necessary for us to notice all the decisions cited by the learned Attorney-General in order to arrive at the conclusion as to what is the extent of jurisdiction of the Appellate Tribunal under Section

14 of the Act. Suffice it to say, Chapter IV containing Section 14 was inserted by an amendment of the year 2002 and the very Statement of Objects and Reasons would indicate that to increase the investors' confidence and to create a level playing field between the public and the private operators, suitable amendment in the Telecom Regulatory Authority of India Act, 1997 was brought about and under the amendment, a Tribunal was constituted called the Telecom Disputes Settlement and Appellate Tribunal for adjudicating the disputes between a licensor and a licensee, between two or more service providers, between a service provider and a group of consumers and also to hear and dispose of appeal against any direction, decision or order of the Authority. The aforesaid provision was absolutely essential as the organizations of the licensor, namely, MTNL and BSNL were also service providers. That being the object for which an independent Tribunal was constituted, the power of that Tribunal has to be adjudged from the language conferring that power and it would not be appropriate to restrict the same on the ground that the decision which is the subject-matter of challenge before the Tribunal was that of an expert body. It is no doubt true, to which we will advert later, that the composition of the Telecom Regulatory Authority of India as well as the constitution of GOT-IT in April 2001 consists of a large number of eminent impartial @page-Mad185 experts and it is on their advice, the Prime Minister finally took the decision, but that would not in any way restrict the power of the Appellate Tribunal under Section 14, even though in the matter of appreciation the Tribunal would give due weight to such expert advice and recommendations. Having regard to the very purpose and object for which the Appellate Tribunal was constituted and having examined the different provisions contained in Chapter IV, more particularly, the provision dealing with ousting the jurisdiction of the civil court in relation to any matter which the Appellate Tribunal is empowered by or under the Act, as contained in Section 15, we have no hesitation in coming to the conclusion that the power of the Appellate Tribunal is quite wide, as has been indicated in the statute itself and the decisions of this Court dealing with the power of a court, exercising appellate power or original power, will have no application for limiting the jurisdiction of the Appellate Tribunal under the Act. Since the Tribunal is the original authority to adjudicate any dispute between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers and since the Tribunal has to hear and dispose of appeals against the directions, decisions or order of TRAI, it is difficult for us to import the self-contained restrictions and limitations of a court under the judge-made law to which reference has already been made and reliance was placed by the learned Attorney-General. By saying so, we may not be understood to mean that the Appellate Tribunal while exercising power under Section 14 of the Act, will not give due weight to the recommendations or the decisions of an expert body like TRAI or in the case in hand, GOT-IT, which was specifically constituted by the Prime Minister for redressing the grievances of the cellular operators. We would, therefore, answer the question of jurisdiction of the Appellate Tribunal by holding that the said Tribunal has the power to adjudicate any dispute between the persons enumerated in clause (a) of Section 14 and if the dispute is in relation to a decision taken by the Government, as in the case in hand, due weight has to be attached both to the recommendations of TRAI, which consists of an expert body as

well as to the recommendations of GOT-IT, a Committee of eminent experts from different fields of life, which had been constituted by the Prime Minister." (ii) Union of India v. Tata Teleservices (Maharashtra) Ltd., 2007 (7) SCC 517 : 2007 AIR SCW 5363. "Normally, a right to make a claim would also include a right to make a cross-claim or counterclaim. If a subject-matter is capable of being raised before TDSAT by the Central Government or the State Government by way of a claim by making an application under Section 14 of the Act, it would not be logical to hold that the same claim could not be made by way of a counterclaim when the other side, namely, the licensee or consumers, had already approached TDSAT with a claim of their own and the Central Government is called upon to defend it. It is, therefore, held that TDSAT has jurisdiction to entertain a counterclaim in the light of Sections 14(1) and 14-A of the Act." (iii) Star India (P) Ltd. (1) v. Sea TV Network Ltd. and another, 2006 (4) Supreme Court Cases 130 (1) : "2.Without prejudice to the claims that are being examined in these appeals, let Star India Pvt. Ltd. provide the connection to Sea TV Network Ltd. on receiving payment of Rs. 5,00,000 (rupees five lakhs only). A Bank draft of Rs. 5 lakhs has been handed over to learned counsel for Star India Pvt. Ltd. The signals shall be given by tomorrow. Further, Star India Pvt. Ltd. shall consider the grievance of the respondent Sea TV Network Ltd. and explore the possibility of an acceptable arrangement. It shall hear the respective views of Sea TV Network Ltd. and Moon Network Pvt. Ltd. and if possible work out the details as to in which way the claim of Sea TV Network can be worked out keeping in view the objective of the 2004 Regulations i.e., the non-discriminatory treatment and non-prejudice in competition. The decision to be taken by Star India Pvt. Ltd. shall be placed before us on the next date of hearing." (iv) Star India (P) Ltd. (2) v. Sea TV Network Ltd. and another, 2006 (4) Supreme Court Cases 130 (2) : "1. One of the issues raised by learned counsel for the appellant is that cable operators and MSOs do not give a complete and accurate list of ultimate subscribers and their area of operation. The respondent Sea TV Network Ltd. submitted that it would be @page-Mad186 in the interest of all concerned to have the details of subscribers of the cable operators correctly identified, provided that such identification is done uniformly and in the non-discriminatory manner. It was submitted that in the prevalent circumstances, the only manner in which the same can be achieved is through the deployment of an addressable system which is commonly known as the conditional access system (in short "CAS"), which would identify the number of subscribers accessing a particular channel. CAS permits the subscriber to also exercise his choice to have only those pay channels which he chooses to watch. 2. Keeping in view the nature of the controversy and its likely impact on the broadcasting/TV industry as a whole, we are of the view that it would be necessary to give adequate opportunity to all stakeholders concerned to file their submissions. For this purpose, an appropriate advertisement shall be published

by TRAI in two leading newspapers as well as on its own website informing the Associations of Cable Operators, MSOs and subscribers of the next date of hearing in this case, which is fixed to 2-5-2006. 4. It is brought to our notice that TDSAT is also hearing the question as to the directions which can be given to the Association of Cable Operators and MSOs for disclosing particulars of their subscribers. Pendency of these matters before this Court shall not stand in the way of TDSAT hearing those cases and in fact it would be of assistance to have the views of TDSAT before this Court when the matters are next taken up. Further, pendency of these matters shall not stand in the way of the Central Government if it so chooses, to implement CAS or of TRAI in devising any system to identify and arrive at the correct number of subscribers of each distributor of TV channels." 6. Per contra, the contention of the learned counsel for the respondent is that the appellant is not a "service provider" and hence the suit is very well maintainable. The learned counsel has cited the following authorities : (i) Cellular Operators Association of India and others v. Union of India and others, 2003 (3) SCC 186 : (AIR 2003 SC 899). "8...Having regard to the very purpose and object for which the Appellate Tribunal was constituted and having examined the different provisions contained in Chapter IV, more particularly, the provision dealing with ousting the jurisdiction of the civil court in relation to any matter which the Appellate Tribunal is empowered by or under the Act, as contained in Section 15, we have no hesitation in coming to the conclusion that the power of the Appellate Tribunal is quite wide, as has been indicated in the statute itself and the decisions of this Court dealing with the power of a court, exercising appellate power or original power, will have no application for limiting the jurisdiction of the Appellate Tribunal under the Act. Since the Tribunal is the original authority to adjudicate any dispute between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers and since the Tribunal has to hear and dispose of appeals against the directions, decisions or order of TRAI, it is difficult for us to import the self-contained restrictions and limitations of a court under the Judge-made law to which reference has already been made and reliance was placed by the learned Attorney-General. By saying so, we may not be understood to mean that the Appellate Tribunal while exercising power under Section 14 of the Act, will not give due weight to the recommendations or the decisions of an expert body like TRAI or in the case in hand, GOT-IT, which was specifically constituted by the Prime Minister for redressing the grievances of the cellular operators. We would, therefore, answer the question of jurisdiction of the Appellate Tribunal by holding that the said Tribunal has the power to adjudicate any dispute between the persons enumerated in clause (a) of Section 14 and if the dispute is in relation to a decision taken by the Government, as in the case in hand, due weight has to be attached both to the recommendations of TRAI, which consists of an expert body as well as to the recommendations of GOT-IT, a Committee of eminent experts from different fields of life, which had been constituted by the Prime Minister." (ii) Union of India v. Tata Teleservices (Maharashtra) Ltd., 2007 (7) SCC 517 : (2007 AIR SCW 5363) :

"The Telecom Regulatory Authority of India Act, 1997 ("the Act") is seen to be a self-contained Code intended to deal with all disputes arising out of telecommunication services provided in this country. This is emphasised by the Objects and Reasons @page-Mad187 also. A plain reading of the relevant provisions of the Act in the light of the Preamble to the Act and the Objects and Reasons for enacting the Act, indicates that disputes between the parties concerned, which would involve significant technical aspects, are to be determined by a specialised Tribunal constituted for that purpose. Normally, when a specialised Tribunal is constituted for dealing with disputes coming under it of a particular nature taking in serious technical aspects, the attempt must be to construe the jurisdiction conferred on it in a manner so as not to frustrate the object sought to be achieved by the Act. In this context, the ousting of the jurisdiction of the civil court contained in Section 15 and Section 27 of the Act has also to be kept in mind. The subject to be dealt with under the Act has considerable technical overtones which normally a civil court, at least as of now, is ill-equipped to handle and this aspect cannot be ignored while defining the jurisdiction of TDSAT. The constitution of TDSAT itself indicates that it is chaired by a sitting or retired Judge of the Supreme Court or sitting or a retired Chief Justice of the High Court, one of the highest judicial officers in the hierarchy, and the members of TDSAT have to be of the cadre of Secretaries to Government, obviously well experienced in administration and administrative matters." (iii) Ramesh Mehta v. Sanwal Chand Singhvi and others, 2004 (5) SCC 409 : (AIR 2004 SC 2258) : "27. A definition is not to be read in isolation. It must be read in the context of the phrase which would define it. It should not be vague or ambiguous. The definition of words must be given a meaningful application; where the context makes the definition given in the interpretation clause inapplicable, the same meaning cannot be assigned." (iv) N.K. Jain and others v. C.K. Shah and others, 1991 (2) SCC 495 : (AIR 1991 SC 1289) : "13....As already noted, these provisions, which form part of the Act, which is a welfare legislation, are meant to ensure the employees the continuance of the benefits of the provident fund. They should be interpreted in such a way so that the purpose of the legislation is allowed to be achieved (vide International Ore and Fertilizers (India) Pvt. Ltd. v. Employees' State Insurance Corporation"). In Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155 (CA), Lord Denning, L.J., observed (All ER p.164) : "The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of funding the intention of Parliament, and he must do this not only from the language of the statute, but also from a

consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature...A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases." (Emphasis supplied) "19. So much is about the opening words to Section 2 and it, therefore, follows that the words 'contribution', 'scheme', 'fund' occurring in the said section should in the 'context' be otherwise interpreted as to apply to a private scheme also and if there is a default in "contribution" by the exempted establishment, the same amounts to contravention of Section 6 punishable under Section 14(1-A)." 7. We have heard the learned counsel for the parties and also gone through the records. 8. To deal with the contentions of the learned counsel, it is necessary to extract Sections 15 and 27 of the Telecom Regulatory Authority of India Act, 1997 (in short, "the Act"), which read as under : "Section 15. Civil Court not to have jurisdiction. - No Civil Court shall have jurisdiction to entertain any suit or proceeding @page-Mad188 in respect of any matter which the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act." "Section 27. Bar of jurisdiction. - No Civil Courts shall have jurisdiction in respect of any matter which the Authority is empowered by or under this Act to determine." 9. The above Sections have to be read together with Section 14. In other words, Sections 15 and 27 will have no meaning if Section 14 is not taken into consideration, since it indicates the very establishment and jurisdiction of the Tribunal, as under : "14. Establishment of Appellate Tribunal. - The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to (a) adjudicate any dispute (i) between a licensor and a licensee; (ii) between two or more service providers; (iii) between a service provider and a group of consumers :

10. From the above section, it is clear that the Telecom Disputes Settlement and Appellate Tribunal adjudicates the disputes only between a licensor and a licensee; between two or more service providers and between a service provider and a group of consumers. 11. So, it is important to know as to whether the parties in the case on hand fall in the above category, for settlement of their dispute by the Appellate Tribunal. It is equally significant to perceive the definitions of the words "licensee", "licensor" and "service provider". 11.1 Section 2(1)(e) defines the word "licensee" as under : "licensee" means any person licensed under sub-section (1) of section 4 of the Indian Telegraph Act, 1885 (13 of 1885) for providing specified public communication services. 11.2 Section 2(1)(ea) defines the word "licensor" as follows : "licensor" means the Central Government or the telegraph authority who grants a licence under section 4 of the Indian Telegraph Act, 1885 (13 of 1885). 11.3. The term "service provider" is defined in Section 2(1)(j) as under : "service provider" means the Government as a service provider and includes a licensee. 12. It is not in dispute that the respondent has a licence under the Indian Telegraph Act, 1885. Therefore, it is a licensee within the meaning of Section 2(1)(e) of the Act and, consequently, a service provider within the meaning of Section 2(1)(j). But, the appellant is neither a licensee under the Indian Telegraph Act, 1885, nor a service provider and he is only a franchisee, who carries the signals of the respondent through its cables to the end-users, namely, consumers. At the same time, it cannot also be said as a consumer. Therefore, the present dispute is not covered by Section 14 of the Act and it does not fall within the jurisdiction of the Appellate Tribunal. 13. Though the learned counsel for the appellant would submit that the respondent and the appellant would come within the definition of the words "Multi System Operator" and "Cable Operator" respectively under Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004, and that Regulation 2(n) defines a "Service Provider" to include a Multi System Operator and Cable operator or distributor of TV channels, we do not agree to the said submission, as the plain language of Section 2(1)(j) of the Act shows that the Government and a licensee under the Indian Telegraph Act alone are included within the meaning of the words "service provider". 14. As per the Cable Television Networks Rules, 1994, a "Cable Operator" is a person who is licensed under a different enactment by the Superintendent of Post Offices and on being satisfied that the applicant fulfils the provisions of the Ordinance, the registering authority shall issue registration certificate in Form-3. So, the Regulations relied upon by the learned counsel for the appellant cannot be imported into Section 2(1)(j) of the Act.

15. A Special Tribunal constituted under a special enactment can exercise only a jurisdiction vested in it by the statute and cannot be conferred with a special jurisdiction by judicial pronouncement, by adopting a circuitous process and a circumventing interpretation. The Act does not give any scope for importing those definitions into the @page-Mad189 provisions of the Act, especially when the Act itself contains the definitions of the words. 16. The decisions relied upon by the learned counsel for the appellant in Cellular Operators Association of India and others v. Union of India and others, 2003 (3) SCC 186 : (AIR 2003 SC 899), and Union of India v. Tata Teleservices (Maharashtra) Ltd., 2007 (7) SCC 517 : (2007 AIR SCW 5363), were already cited before the learned single Judge. The decisions in both the said cases arose out of appeals filed under Section 18 of the Act against the orders of the Tribunal. The dispute in those cases were either between the Government and the service provider or between two service providers, squarely covered by Section 14 of the Act. It is, in that context, the Supreme Court held in both the aforesaid cases that the jurisdiction of the Tribunal is wide, not confined to any restrictions. The other authorities cited by the learned counsel for the appellant before this Court are : (i) Star India (P) Ltd. (1) v. Sea TV Network Ltd. and another, 2006 (4) Supreme Court Cases 130 (1) and (ii) Star India (P) Ltd. (2) v. Sea TV Network Ltd. and another, 2006 (4) Supreme Court Cases 130 (2). Even these two cases were also on appeals against the orders of the Tribunal and the issue was not with regard to the maintainability of the suit. No question arose in the aforesaid cases as to whether one of the parties to the litigation was a service provider or not. Therefore, the aforesaid decisions have no application to the facts of the present case. 17. In the case on hand, there is an agreement between the parties and the appellant, to wriggle out its obligation, has filed the application to reject the plaint. It is only on the basis of the said agreement, the respondent has invested crores of rupees for its business. Further, the respondent/plaintiff is an entity represented by its authorised signatory. Hence, it can sue and be sued. The suit is in the nature of specific performance to make the appellant perform its obligation and it is an ordinary civil litigation, which will not come within the scope of the Act. Therefore, in our considered opinion, the suit is not barred by law and the plaint is not liable to be rejected. 18. For the foregoing reasons, this O.S.A. fails and is dismissed. No costs. Consequently, the connected M.P. Nos. 1 and 2 are also dismissed. 19. However, we make it clear that the obiter dicta made by us in this judgment will be only for the purpose of disposing of this appeal and the same shall not, in any way, influence the trial Court in disposing of the suit on merit. Appeal dismissed. AIR 2009 MADRAS 189 "Bharath N. v. Secretary, Selection Committee, Kilpauk, Chennai" MADRAS HIGH COURT

Coram : 2 P. JYOTHIMANI AND Mrs. ARUNA JAGADEESAN, JJ. ( Division Bench ) Dr. Bharath N. and Ors. v. Secretary, Selection Committee, Kilpauk, Chennai and Ors. W.A. No.763 of 2007, D/- 12 -5 -2009. (A) T.N. Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments of Posts in the Service under the State) Act (45 of 1994), S.4, S.5 Constitution of India, Art.15, Art.16 - BACKWARD CLASS - SCHEDULED CASTES AND SCHEDULED TRIBES RESERVATION - EQUALITY IN PUBLIC EMPLOYMENT - Reservation in educational matters - Percentage on basis of annual permitted strength in each faculty - Admission being annual process applicability of carry forward or roster system of reservation, not desirable - It would take away valid rights of other students participating in admission process every year - Roster applicable only to service matters which is a continuous process - Govt. order introducing roster system of reservation for admission in medical courses if seats are less than 8, runs contrary to S.4 - Unreasonable. (Paras 17, 18, 19, 20, 21) (B) Constitution of India, Art.15, Art.16 - EQUALITY IN PUBLIC EMPLOYMENT - EDUCATION RESERVATION - Education - Admission to Super-specialty medical courses - Selection to be based on merits only - Any other consideration including communal reservation cannot be criteria. (Paras 25, 26) Cases Referred : Chronological Paras 21

AIR 2003 SC 1966 : 2003 AIR SCW 1463 : 2003 Cri LJ 1702 AIR 1989 SC 775 AIR 1984 SC 1420 25 25

K.M. Vijayan, Sr. Counsel for M/s. La Law, for Appellants; S. Rajasekar, Addl. Govt. Pleader, for Respondents. Judgement P. JYOTHIMANI, J. :- The writ appeals are directed against the common order passed by the learned single Judge in W.P. Nos. 12762 of 2007 and 13336 of 2007 @page-Mad190 etc., dated 02.05.2007. Under the said order the learned Judge, while dismissing the writ petitions has held that there is no unreasonableness in the roster system sought to be introduced by the impugned Government Order. 2. W.P. No. 7067 of 2009 has been filed for declaration that Clause 54(b) and Annexure II relating to Super-specialty Five Year course in M. Ch. (Neuro Surgery) under the prospectus for admission to PostGraduate degree for the academic year 2009-2010 is invalid insofar as it provides reservation in the category of Super-specialty Post Graduate Medical course and reservation by roster is contrary to Article

15 and against the judgment of the Supreme Court and the provisions of the Tamil Nadu Act 45 of 1994 relating to reservation in admission and also for direction against the respondents to fill up M. Ch. (Neuro Surgery) from and out of service candidates as per the merit list and grant admission to the petitioner. 3. Since the writ petition is connected with the point that is involved in the writ appeals, the writ petition is directed to be posted along with the appeals for a decision. 4. The interesting points involved in these cases are, whether the roster system is admissible in respect of admission to Postgraduate course as well as Super-specialty course in Medical Education; whether the concept of reservation can be applied in respect of Super specialty course and whether the Five year integrated M. Ch. course in Neuro Surgery introduced from the academic year 2009-2010 by the respondents is a super-specialty course or a Post-Graduate Medical course. 5. It is not in much dispute that the respondents have introduced the Five Year M. Ch. (Neuro Surgery) course for the first time in the State. The prospectus issued by the respondents for the year 2009-2010 shows that the Five Year M. Ch. (Neuro Surgery) course is a Post-graduate Degree course. The eligibility criteria for Five Year M. Ch. (Neuro Surgery) course are that the candidate should be a citizen of India and should have undergone MBBS course in the State of Tamil Nadu and passed the said MBBS degree and completed CRRI period on or before 31.03.2009 in the Tamil Nadu Dr. MGR Medical University or any other university recognised as equivalent. The entrance examination for M. Ch. (Neuro Surgery) and Post-graduate degree courses was held on 22.02.2009 among the undergraduate candidates. The maximum mark 100 is divided into two; 90 marks for entrance examination and 10 marks for experience, including the marks for hilly areas and rural areas. The admission would be effected by counselling process on the basis of merit by applying the rule of reservation wherever applicable. 6. For the year 2009-2010, number of candidates to be admitted in the five year M. Ch. (Neuro Surgery) are four, out of whom two are to be admitted in Madras Medical College, Chennai; one in Stanley Medical College, Chennai and one in Madurai Medical College, Madurai. Out of the sanctioned seats, 50% are offered to All India quota allotted by the Director General of Health Services, New Delhi and the remaining are allotted to State quota, however, vacant seats under the All India quota will be surrendered for being filled up under the State quota among merit list candidates following the rule of reservation. 7. It is also stated in the prospectus that 50% seats in each Branch are reserved for service candidates and the remaining seats should go to open category. The relevant clauses in the prospectus issued for the year 2009-2010 are 54(a) and 54(b), which read thus : "54(a) The selection will be made by counselling based on merit and by applying the rule of reservation followed by the Government of Tamil Nadu wherever applicable. (b) 50% of seats in each branch are reserved for service candidates, in addition to those service candidates selected in the open category. In case of an odd number of vacancy that vacant seat shall be filled up by consideration of merit among Service candidates only.

Roster method of rule of reservation will be followed if the seats are more than 1 and less than 8 in each branch as per G.O. Ms. No. 241/dated 29.10.2007 of PandAR (K) Dept. of Government of Tamil Nadu. If the seats are 8 and more, the rule of reservation shall be as follows :

Open competition Backward Class ...

... 30%

31%

Most Backward/Denotified Scheduled Caste Scheduled Tribe ... ... 1%

... 18%

20%

Within the 30% reservation for Backward @page-Mad191 Classes 3.5% reservation will be provided for Muslims." 8. On the factual matrix, out of four sanctioned seats for Five Year M. Ch. (Neuro Surgery) course, two are to be admitted from State quota of which one should be from service candidate and the other from the open category and the remaining two are from the All India quota. 9. The case of the petitioner in W.P. No. 7067 of 2009 is that he belongs to service category and appeared for the entrance examination conducted by the respondents and obtained total marks of 69.04 and secured overall rank 63 and service rank 31. In the counselling that took place on 03.04.2009, he was offered only M.D. General Medicine though he is interested in M. Ch. (Neuro Surgery) and the petitioner was denied admission by applying the roster system under Clause 54(b) of the prospectus under which M. Ch. (Neuro Surgery) seat under service category is stated to have been reserved exclusively for MBC candidates alone in the academic year 2009-2010. 10. In respect of the appellants in two appeals before us, they sought for admission in M.D.S. Course for the academic year 2007-2008. Out of the total seats available in the State of Tamil Nadu in M.D.S. PostGraduate Dental course, 50% seats were allotted to All India quota and the remaining seats were earmarked for State quota to be allotted by the Selection Committee, the Director of Medical Education, Chennai. There are seven faculties in MDS Course conducted by Madras Dental College and in no faculty there were more than 8 candidates and in fact, it was not more than four candidates representing nonservice candidates. As per Clause 8 of the General Instructions issued for the year 2007-2008, "Rule of reservation is applicable when there are eight seats and more in each discipline"

However, the State Government issued G.O. Ms. No. 95 (Health and Family Welfare Department) dated 22.3.2007 providing for roster system to be followed, if there are less than eight seats in each discipline. According to the appellants, if, as per the prospectus, the reservation was not applied, they would have got admitted on merits and hence, they have filed the respective writ petitions for direction to admit them to MDS Course in the academic year 2007-08. 11. The contention raised by Mr. K.M. Vijayan, learned senior counsel appearing for the appellants and the writ petitioner is that the prospectus issued by the respondents for the year 2007-08 stating that the rule of reservation is applicable when there are eight seats or more in each discipline is binding upon the parties and in the absence of any rule made by the Government in accordance with the powers conferred under section 8 of the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments of Posts in the Services under the State) Act, 1993 (Act 45/1994), the Government Order issued in G.O. Ms. No. 95 (Health and Family Welfare Department) dated 22.3.2007 applying the rule of reservation even if the number of seats are less than eight has no statutory force. 11(a). It is also his submission that the roster system which has been referred to in the said G.O. for admission in Post-graduate Medical Education is not acceptable because, section 4 of the said Act (Act 45/94) speaks about the admission on annual basis applying the rule of reservation and what is applicable is section 5 which says that the appointment is a continuous process and according to him, the roster system will have no application in respect of admission on annual basis and it is applicable where the appointment is a continuous process. 11(b). It is his further submission that applying the roster system for admission, as per G.O. Ms. No. 95, dated 22.3.2007 is ultra vires. It is his submission that by applying the roster system, a particular group of communities would be completely denied their right of participating in the admission process in each year. It is his further submission that M. Ch. Course in Neuro Surgery is conducted as an integrated five year degree course and as a super-specialty course, it cannot be treated as a mere postgraduate course. According to him, postgraduate M.D. is awarded after completion of two years of the course and it is, thereafter admission is made to M. Ch. Course for another three years, and in the present case, by integrating both the courses, the period of course is increased to five years and, it would not take away the super-specialty character of M. Ch. Course. He therefore submitted that in respect of super-specialty course, the rule of reservation is not applicable @page-Mad192 and admission is to be made only on the basis of merit. It is his submission that for admission to M. Ch. (Neuro Surgery), M.B.B.S. cannot be the basic requirement. 12. On the other hand, it is the contention of the learned counsel for the respondents in the appeals as well as in the writ petition that the roster is only a continuation of existing reservation rule and as far as applicability of the rule of reservation it is for the authorities to decide from time to time as permitted by the Supreme Court. It is the further contention of the learned Additional Government Pleader that G.O. Ms. No. 95, dated 22.3.2007 was issued in furtherance of the executive functions of the

Government and, therefore, it should be treated as an executive instruction. It is his submission that it is not as if when Rules are not made, the purport of the Act should not be implemented by executive instructions and according to him, the G.O. Ms. No. 95, dated 22.3.2007 is not running contrary to the provisions of the Act. It is his further submission that simply because M. Ch. (Neuro Surgery) is an integrated five year course, it cannot be treated as a super-specialty course since the basic qualification required is only M.B.B.S. Degree and not a post-graduate degree and M. Ch. degree being a second degree should be treated as a post-graduate degree. 13. The learned Judge, while considering the said arguments, has held that by applying the roster system, the admission right of persons belonging to any community to be considered in the open category is not affected. It was further held that by applying the roster system, a particular community may not get a chance for admission in a particular year, but that community will get the chance in the next year and therefore it will be a carry forward rule that perpetuates. The learned Judge further held that merely because section 4 of Act 45 of 1994 does not provide for roster it does not mean that the Government cannot formulate the policy of roster. It is on that basis, the learned Judge held that the G.O. Ms. No. 95, dated 22.3.2007 cannot be held to be invalid or against the provisions of section 4 of the Act 45 of 1994. 14. As far as the principle of reservation is concerned, section 4 of Act 45 of 1994 provides for reservation of seats in educational institutions and section 5 provides for reservation in appointments of posts in the services under the State. For the purpose of understanding the issues involved in this case, it is relevant to extract sections 4 and 5 of the Act 45 of 1994 which are as follows : "4. Reservation of seats in Educational Institutions : (1) Notwithstanding anything contained in any judgment, decree or order of any court or authority, having regard to the social and educational backwardness of the Backward Classes of citizens and the persons belonging to the Scheduled Castes and the Scheduled Tribes who constitute the majority of the total population of the State of Tamil Nadu, the reservation in respect of the annual permitted strength in each branch or faculty for admission into educational institutions in the State, for the Backward Classes of citizens and for the persons belonging to the Scheduled Castes and the Scheduled Tribes, shall be sixty-nine per cent. (2) The reservation referred to in sub-section (1) shall, in respect of the persons belonging to the Backward Classes, the most Backward Classes and Denotified Communities, the Scheduled Castes and the Scheduled Tribes, be as hereunder : (a) Backward Classes - Thirty per cent (b) Most Backward Classes and Denotified Communities - Twenty per cent (c) Scheduled Castes - Eighteen per cent (d) Scheduled Tribes - One per cent.

5. Reservation in appointments or posts in the service under the State. - (1) Notwithstanding anything contained in any judgment, decree or order of any court or other authority, having regard to the inadequate representation in the services under the State, of the Backward Classes of citizens and the persons belonging to the Scheduled Castes and the Scheduled Tribes, who constitute the majority of the total population of the State of Tamil Nadu, the reservation for appointments or posts in the services under the State, for the Backward Classes of citizens and for the persons belonging to the Schedules Castes and the Scheduled Tribes, shall be sixty-nine per cent. Explanation. - For the purposes of this Act, "services under the State" includes the services under (i) the Government; (ii) the Legislature of the State; (iii) any local authority; @page-Mad193 (iv) any corporation or company owned or controlled by the Government; or (v) any other authority in respect of which the State Legislature has power to make laws. (2) The reservation referred to in sub-Section (1) shall, in respect of the persons belonging to the Backward Classes, the Most Backward Classes and Denotified Communities, the Scheduled Castes and the Scheduled Tribes, be as hereunder :(a) Backward Classes - Thirty per cent (b) Most Backward Classes and Denotified Communities - Twenty per cent (c) Scheduled Castes - Eighteen per Cent (d) Scheduled Tribes - One per cent." 15. A reading of the above provisions make it clear that the reservation in educational institutions is different from the reservation in appointment of posts in services under the State. It is clear from section 4 that the only reservation is applicable for the obvious reason that the admissions are made every year. Such a clause is not available under section 5 of the Act as the appointment to the Government service is a continuous process. In fact, the Government has prescribed the concept of roster system which was originally 50 point roster and subsequently 100 point roster and presently 200 point roster with an idea of providing employment opportunity to all classes of persons like, Backward Classes, Most Backward Classes, Scheduled Classes and Scheduled Tribes and therefore, the appointment which is a continuous process is made following the roster system. However, in respect of admission to educational institutions, it is an annual process and whether 100 points or 200 points of roster system are followed or not, the percentage prescribed for each classes of persons should be maintained.

16. A comparative reading of sections 4 and 5 makes it very clear that while in the case of educational institutions reservation has to be followed every year, in the case of appointments in services the reservation has to be followed as a continuous process by roster not pertaining to a particular year but, as and when vacancies arise in each of the departments. 17. There is one other difficulty in the roster system for being followed in admission to educational institutions. When admission is on yearly basis, every qualified student is entitled to participate in the admission process, of course, based on the percentage of reservation. As the roster points are to go to a particular community in a particular year, the applicability of roster system in admission to educational institutions is not desirable, especially in the circumstance where very limited number of seats are available, because students belonging to other communities may not get chance in a particular year and they have to wait for next year, and that would not amount to equal distribution of existing seats every year among the qualified students based on the rule of reservation. Further, it is not acceptable that if in any particular year persons belonging to a particular community may not be able to participate in the admission process they can wait for next year. It would not only be an abuse of the admission process, but would take away the valid rights of students in participating in the admission process every year. That is not the purport of section 4 of the Act. We are of the considered view that the finding of the learned Judge that a particular class of persons who are denied admission in a particular year can wait for next year is not the correct position of law. 18. The mere postponing the right of qualified students to participate in the admission process for next year in effect would cause enormous injustice which can never be the purport of any law including the policy of reservation. On the other hand, in the matter of appointment in service, it is, only as and when vacancy arises in a department, the post is filled up and therefore, the roster system is being followed as a continuing process with the intention to give the benefit of reservation policy to all communities turnwise. The concept of reservation being the basis for section 4 and 5 of the Act, the roster can be applicable only to service matters and that cannot be applied to the admission process in the educational institutions. In such view of the matter, the action of the respondents in not allowing the petitioner in W.P.No.7067 of 2009 to participate in the selection process for the year 2009-10 on the ground that in this year as per roster system, the opportunity would only go to candidates belonging to Most Backward Classes is illegal and not permissible in law and also opposed to the rule of reservation. @page-Mad194 19. Moreover, on the facts of the case in the writ petition, out of four seats, two seats have been handed over to All India quota. The only remaining two seats to be filled up among service candidates. By applying roster system it would cause disaster to the rule of reservation. 20. It is also relevant to point out that section 8 of the Act enables the Government to make Rules for the purpose of implementation of various provisions of the Act, but the Government has not framed Rules either regarding admission or appointment. Nevertheless, the intent of section 4 of the Act which contemplates reservation to Backward Classes, Most Backward Classes, Scheduled Castes and Scheduled Tribes at 30%, 20%, 18% and 1% respectively, remains to be enforced. When such legislative mandate

prevails, the question remains to be seen is whether it is possible for the Government to issue an order contrary to section 4 of the Act in the absence of any Rule made as per the Act. 21. When section 4 makes it clear that the percentage of reservation has to be given effect to based on the annually permitted strength in each branch or faculty, the Government Order in G.O. Ms. No.95, dated 22.3.2007 restricting the application of reservation only in case the seats are more than eight and introducing the roster system if the seats are less than eight, certainly runs contrary to section 4 of the Act. Apart from that, the contention that the said G.O.Ms.No.95, dated 22.3.2007 could be treated as executive instruction permissible under Article 162 of the Constitution of India cannot be countenanced, particularly when the Government Order runs contrary to the Act 45/1994. Further, the comparison of the power of Pollution Controlling Authority in declaring an area as pollution control area which is a distinct act of the Board being a competent authority for the said purpose with that of the present respondents in issuing the Government Order taking away the right of reservation in the matter of admission when the seats available are less than the prescribed norm is not acceptable. The law laid down by the Hon'ble Apex Court in Orissa State (Prevention and Control of Pollution) Board v. Orient Paper Mills [(2003) 10 SCC 421] : (AIR 2003 SC 1966) upholding the right of the Board to declare an area as air pollution control area even in the absence of framing of rules by the State Government is certainly distinct from the present case which relates to reservation and when the Act contemplates reservation process to be adopted annually, it is certainly not for the Government to issue the G.O.Ms.No.95, dated 22.3.2007 taking away the right of reservation where the number of seats to be filled up in a faculty are less than eight. In such view of the matter, we are of the considered view that the finding of the learned Judge in this regard is not correct. 22. However, in the writ petitions filed by the appellants, the prayer was to admit them in MDS Course for the academic year 2007-08 as per the conditions of the prospectus issued without following the rule of reservation when the number of seats sought to be filled up is less than eight in each faculty. It is true that the contents of the prospectus are binding on the parties and in the prospectus and general instructions issued for the year 2007-08, in clause-8 it was specifically stated that 'rule of reservation is applicable when there are eight seats and more in each discipline' thereby meaning that in case where the seats are less than eight, the rule of reservation has no application for admission for the year 200708. This is equally not in accordance with section 4 of the Act. The analogy that is applicable against the roster system which is opposed to section 4 of the Act would equally apply against clause 8 of the general instructions given for the year 2007-08 also. 23. The contention of the learned Additional Government Pleader that application of roster system if the seats are less than eight is a policy decision is not acceptable, in the light of section 4 of the Act which mandates that the reservation has to be followed in all cases of admission. In such view of the matter, the prayer of the writ petitioners who are the appellants in the above appeals runs contrary to the provision of section 4 of the Act which does not distinguish the number of seats for the purpose of application of the rule of reservation. Therefore, we have no hesitation to hold that the appellants' case in the writ petitions cannot be accepted, for the reason that the rule of reservation should not be given a goby even if the number of seats to be filled up were less than eight and that clause 8 of the general

instructions given for the year 2007-08 is opposed to section 4 of Act 45/1994. In this view of the matter, the dismissal @page-Mad195 of the writ petitions by the learned Judge need not be interfered with. Accordingly, the writ appeals stand dismissed. However, if roster system was followed in admission for the year 2007-2008, the same is not permissible in law. 24. Now, in respect of admission to M.Ch. Integrated Five Year Course, for the reasons explained above, the roster system cannot be made applicable to the admission by virtue of section 4 of Act 45/1994 and we are of the view that the denial of participation of the petitioner in the counselling for Five Year Integrated M.Ch. Neuro Surgery Course for the year 2009-10 on the above said ground is not permissible in law. That apart, the contention of the learned counsel for the respondents is that separate prospectus has been issued for super specialty course as well as post-graduate course in medicine and in respect of the super specialty course, viz., M.Ch. Neuro Surgery, out of four seats, two seats are to be admitted in Madras Medical College, one seat is to be admitted in Stanley Medical College and the remaining one seat is to be admitted in Madurai Medical College. Further, in the prospectus for Post Graduate Degree/Diploma/MDS 5 Year M.Ch (Neuro Surgery) Courses for the year 2009-10, of course, in Annexure-II under M.S. Course category, M.Ch. (Neuro Surgery) is added. The question is, by merely adding M.Ch.Neuro Surgery with M.S. Courses, whether M.Ch. Course ceases to be a super specialty course. In the absence of any material to show that the syllabus for M.Ch. Neuro Surgery as stated in the prospectus of super specialty course and the syllabus for Five Year M.Ch.Neuro Surgery Course included as one of the post-graduate courses in the prospectus issued by the respondents are distinct, it is not possible to accept the contention of the learned counsel for the respondents that both the courses are different. It is relevant to point out that including D.M. Course, all other super specialty courses are M.Ch. only. Therefore, it is clear that admission to such super speciality course as that of M.Ch. Neuro Surgery can be made only from among the persons who are the Post-graduate holders and merely a person who has completed graduation in medicine, viz., M.B.B.S. is not entitled for admission to M.Ch. Course. Accordingly, in our considered view, in the absence of any special circumstance showing that the syllabi for both the courses are entirely different, it is not possible to accept the contention that Five Year Integrated M.Ch. Neuro Surgery Course is a post-graduate course and not a super specialty course. 25. Law is well settled that in respect of super specialty course, the selection shall be only based on merits. The Supreme Court in Dr.Sanjay Mehrotra and another v. G.S.V.M. Medical College, Kanpur and others [A.I.R. 1989 SC 775], while dealing with the reservation of 75% of seats for institutional candidates, held as follows : " 4. According to the High Court, in view of the decision of this Court in Dr. Pradeep Jain v. Union of India (1984) 3 SCR 942 : (AIR 1984 SC 1420), admission to super speciality courses should be made strictly on the basis of present merit and as no examination was held by the college to assess the merits of the candidates, the High Court set aside the admission of the appellants and respondent No.9."

26. Therefore, the super specialty course being a specialised course in medicine, merit alone shall be the criterion and not any other consideration including the communal reservation. In any event, on the facts of the case, it is seen that for the service candidates only one seat is available and the law is well settled that reservation cannot be applied if the seat to be filled up is only one. Therefore, the petitioner in W.P.No.7067 of 2009, having only M.B.B.S. degree is not entitled to be considered for M.Ch.Neuro Surgery Course for the year 2009-10. In these circumstances, the writ appeals and writ petitions are disposed of in the following terms : (1) W.A.Nos.763 and 764 are dismissed holding that the policy of reservation is applicable for admission even if the number of seats are less than eight; (2) Roster system is not applicable for admission in educational institutions since section 4 of the Act 45 of 1994 contemplates admission on annual basis; (3) Clause 8 of the prospectus/General Instructions to candidates issued by the respondents for the year 2007-08 denying reservation in case the seats are less than 8 is set aside; (4) Clause 54(b) of the prospectus for postgraduate degree/diploma/MDS 5 year M.Ch.(Neuro Surgery) courses, 2009-10 is set aside in so far as it relates to roster system of rule of reservation in cases where the @page-Mad196 seats are more than one and less than eight in each branch; (5) Five Year Integrated M.Ch. Neuro Surgery Course is to be treated as a super specialty course and admission shall be made only based on merit without following the rule of reservation. Further, it is made clear that for admission to M.Ch. Neuro Surgery course, the qualification shall not be undergraduation in Medicine and any admission made for the year 2009-2010, contrary to the above said ruling stands set aside. (6) W.P.No.7067 of 2009 is ordered accordingly. No costs. Connected miscellaneous petitions are closed. Order accordingly. AIR 2009 MADRAS 196 "Allied Blenders and Distillers Pvt. Ltd. v. Intellectual Property Appellate Board" MADRAS HIGH COURT Coram : 2 H. L. GOKHALE, C.J. AND D. MURUGESAN, J. ( Division Bench ) M/s. Allied Blenders and Distillers Pvt. Ltd., Mumbai v. Intellectual Property Appellate Board, Chennai and Ors. W.P. No. 1571 of 2009 and M. P. No. 1 of 2009, D/- 1 -9 -2009.

Trade Marks Act (47 of 1999), S.21 - Trade Marks Rules (2002), R.53 - TRADE MARK - LIMITATION Opposition to registration mark - Limitation - Notice of opposition and counter statement are like plaint and written statement - Same has to be filed within period prescribed under Act - Act being special statute provisions of Limitation Act would not be applicable - Consequently notice of opposition filed beyond prescribed time cannot be accepted by Registrar of Trade Marks. Limitation Act (36 of 1963), S.29(2). The Trade Marks Act, 1999 is a special Act. It gives a special right to the parties who want their goods and services to be protected by getting a registration of the trade mark. Anybody who is keen to oppose any such registration has also to be vigilant and has to oppose the registration in the prescribed manner, in the prescribed time, and on payment of prescribed fee within the time provided for that purpose. The counter statement is also to be filed in the prescribed time and in the prescribed manner. The notice of opposition and the counter statement are like the plaint and the written statement of the proceeding. If the Special Act provides for specific time, manner and fees for filing of the plaint, it has to be so done in compliance and the requirements cannot be relaxed. Sub-section 21(7) of the Act provides only for amendment of the notice of opposition and counter statement, but that cannot be construed as a provision to cure any deficiency in the requirement of Ss. 21(1) and 21(2) of the Act. S. 131 and Rule 53 can also not be pressed into service, since that Section will apply only where time is not expressly provided under the statute and Rule 53 is concerning the time for leading the evidence. It cannot apply to filing of notice of opposition or the counter statement. Any other interpretation will defeat the objective of the Act, and hence, cannot be accepted. Further, the Act being special statute provisions of Limitation Act would have no application. Consequently notice of opposition filed beyond prescribed time cannot be accepted by Registrar of Trade Marks. 1982 PTC 127 (Bom.), 2000 PTC 24 (Delhi) (FB) and 2002 (24) PTC 558 (Delhi) Distg. 1875 (1) Ch. D. 426 and AIR 1975 SC 915 Rel. on. Cases Referred : Chronological Paras 22 (Para 24)

2002 (24) PTC 558 (Delhi) (Disting)

AIR 2001 SC 4010 : 2001 AIR SCW 3994 : 2001 CLC 1536 26 2000 PTC 24 (Delhi) (FB) (Disting) 21, 22

AIR 1995 SC 2272 : 1995 AIR SCW 3389 25 1982 PTC 127 (Bom) (Disting) AIR 1975 SC 915 (Rel.on) AIR 1970 SC 1953 28 20, 21 23

1875 (1) Ch D 426 (Rel.on)

23

P.S. Raman, Advocate, General Assisted by Sanjay Chabra, for Petitioner; Sanjay Chabra, for Respondent No. 3. Judgement H. L. GOKHALE, C.J. :- This writ petition raises a question as to whether the Registrar of Trade Marks can allow a notice of opposition to the registration of a trade mark to be given beyond the period prescribed under Section 21 of the Trade Marks Act, 1999. 2. In other words, this writ petition raises the question as to whether the Registrar of Trade Marks can receive a notice of opposition to the registration of a trade mark given beyond the period prescribed under Section 21 of the Trade Marks Act, 1999. @page-Mad197 3. The short facts leading to the filing of this writ petition are hereunder : The petitioner and the respondent 3 herein are both companies engaged in the manufacture and marketing of alcoholic beverages including Indian Made Foreign Liquor (IMFL). One of the brands under which the petitioner sells its alcoholic beverages being whisky is known as Officers Choice. The petitioner claims that the product under this brand name is in the market since 1988, but the petitioner became the proprietor thereof from 23rd February, 2007. The trade mark registration for the mark Officers Choice in Class No.33 in respect of alcoholic beverages namely, whisky has been registered under Registration No.538927B with effect from 26th October, 1990, the same has been renewed subsequently, and presently it is duly recorded in the name of the petitioner. 4. The respondent 3 claims to be selling another alcoholic beverage being whisky under the mark Original Choice, and it claims that it was earlier used by its predecessor viz., one National Distillery and Allied Products Private Limited since about 1995. On 4th April, 1996 the respondent 3 applied for the trade mark registration of Original Choice by making Application No.722161 in Class No.33 in its name. The respondent 3 had also obtained a copy right registration for that label on 4th March, 2000 by claiming the date of first use in the year 1996. 5. In May, 2002 the petitioner filed a suit bearing Civil Suit (O.S.)No.1058 of 2002 in the High Court of Delhi for passing off on the ground of deceptive similarity, but did not get the injunction as sought for. It subsequently filed one more suit in the year 2007 on the basis alleged infringement. (We have been informed that ultimately the application for interim injunction in both the suits were rejected by a common order of the Delhi High Court on 11th July, 2008, and the appeal therefrom was rejected by a Division Bench of that Court on 29th September, 2008, and the Special Leave Petitions being Special Leave to Appeal (Civil) Nos.4601-4602/2009 were also dismissed by the Apex Court on 6th March, 2009).

6. The above referred petition of the respondent 3 for registration of the trade mark Original Choice was published in the Trade Mark Journal Mega-2 on 2nd December 2003 (at page 5307) inviting the objections from the public. 7. Section 21 of the Trade Marks Act requires a party opposing such registration to file a notice of opposition to the registration within three months from the date of the advertisement. The Registrar, however, has the power to extend the period by one month, if any such application is made in the prescribed manner and on payment of the prescribed fees. Accordingly, the petitioner filed the necessary application for extension of time on 1st March, 2004 in Form TM-44 along with the requisite fee of Rs.500/- i.e., within three months period, and got the extension of one month. The period of four months was to expire on 1st April, 2004. On 31st March, 2004, the petitioner presented a paper book with the requisite form TM 5 before the Registry along with the leaflet of a cheque on which the requisite fee of Rs.2,500/- was written, but the cheque was not signed. The Trade Mark Registry sent a letter to the petitioner on the next day i.e., on 1st April, 2004 returning the cheque for compliance. The petitioner re-presented the cheque duly signed on 13th April, 2004, which was received by the Trade Mark Registry on 15th April, 2004 (encashed on 30th April, 2004). 8. Much later, i.e., on 17th July, 2007 the respondent 2 Deputy Registrar of Trade Marks, Chennai passed the following order : No.TOP/5603 GOVERNMENT OF INDIA TRADE MARKS REGISTRY IP Building, GST Road, Guindy, Chennai 600 032. Dated : 17.07.2007 To M/s. International Trade Marks Bureau, 1st Floor, Manekji Wadia Buildings, 127, Mahatma Gandhi Road, Fort, Mumbai 400001. Sub : Proposed Opposition No. 170976 to Application No.722161 in Class 33 advertised on Journal Mega 2, dated 25.09.2003, made available to public on 02.12.2003.

Ref : Hearing held on 10.11.2005 Sirs, With reference to the above, I am directed to convey the following order passed by the @page-Mad198 Deputy Registrar of Trade Marks in the above referred matter :Mr. C. S. Rao, advocate authorized by M/s.International Trade Marks Bureau appeared for the Proposed Opponents. Though TM-44 dated 01.03.2004 is filed within 3-month period, the TM-5 filed on 15.04.2004, is beyond the prescribed time limit of 4-month period, hence the TM-5 filed on 15.04.2004 cannot be taken on record. Yours faithfully, For Deputy Registrar of Trade Marks. Copy to : M/s.Harikrishna S.Holla, 34/3, V Main Road, Gandhi Nagar, Bangalore 3. For Deputy Registrar of Trade Marks." 9. Since, the respondent 2 had declined to take the opposition on record, the petitioner filed a petition for review on 21.08.2007 seeking recall of that order. As can be seen from that order, it was contended on behalf of the petitioner that erroneously the cheque had not been signed due to oversight. Reliance was placed on the judgment of the Apex Court reported in AIR 1976 SC 1977 (sic) to contend that the procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It was submitted that the opposition be permitted to be taken on record to maintain the purity of the Trade Mark Register. 10. The above referred review petition was opposed by the respondent 3 by pointing out that the same could not be said to be maintainable on any of the grounds which are otherwise available under Order 47 Rule 1 of the Code of Civil Procedure in the sense that there was no discovery of any new or important matter, there was no mistake or error apparent on the face of the record, nor any sufficient reason could be invoked. The opposition had to be filed in the prescribed form and with the fee within the time provided. Since, the requisite fee was not paid, the Deputy Registrar of Trade Marks was right in declining to take the application on record. It was submitted that this was as per the mandate of the statute and the opposition could not be entertained in breach thereof.

11. The Deputy Registrar of Trade Marks in his order merely reproduced all these submissions, and as can be seen from the order passed on 27th November, 2007 this is all that he has stated of his own viz., in view of the above the review petition dated 21st August, 2007 filed by the opponent is disallowed, and the Application No.722161 in Class 33 shall proceed for registration. There shall be no order as to costs. 12. Being aggrieved by this order the petitioner filed an appeal under Section 91 of the Trade Marks Act, 1999 before the Intellectual Property Appellate Board, Chennai. It was canvassed on behalf of the petitioner/appellant before the Appellate Board that in the facts as narrated above, the opposition had been filed within the prescribed extended time along with the requisite fee in the form of a cheque, that only the cheque remained unsigned inadvertently, that the Deputy Registrar of Trade Marks ought to have received this opposition, that in any case when the review was filed, the same has been dismissed without assigning any reasons whatsoever, that the petitioner/appellant had a good case in opposition, and that it should not be allowed to be frustrated by taking such a technical approach. 13. As against this submission of the petitioner/appellant it was submitted on behalf of the respondent that the petitioners appeal was only against the second order declining to take the application for opposition on file, and that the same was beyond time when counted from the first order dated 17.07.2007. This is because the appeal is required to be filed within three months from the date of the impugned order. In any case, it was submitted that this was a provision in a special Act, and since, there was no provision to condone the delay, the delay could not have been condoned. 14. The Appellate Board went into the question as to whether the review was maintainable, and held that the case had not been made out under Order 47 Rule 1 of the Code of Civil Procedure, and therefore, dismissed the appeal by its order dated 14th November, 2008. 15. Being aggrieved by this order dated 14th November, 2008 as well as the earlier two orders dated 17th July, 2007 and 27th November, 2007, this writ petition is filed to quash all the three orders and to direct the respondent 2 viz., the Deputy Registrar of Trade Marks, Chennai to take on record the notice of opposition filed by the petitioner and to decide the same, in accordance with law. @page-Mad199 16. Mr.P.S.Raman, learned Advocate General has appeared for the petitioner and his principal submission has been that the notice of opposition has been filed within time, at the most there was a technical error in not signing the cheque, and therefore, all these orders be set aside. The Registrar should be deemed to have the power to extend the time under Section 21 read with Section 131 of the Trade Marks Act, 1999. 17. As against that, Mr.Sanjay Jain, learned Senior Counsel appearing on behalf of the respondent 3 submitted that the Trade Marks Act is a special Act, the opposition to registration is in fact a kind of a plaint, it has to be filed within the period of limitation provided under the special Act in the manner prescribed and on payment of the prescribed fee as provided thereunder, and if that was not so done there was no power with the Registrar to extend time and receive the cheque subsequently. The Form

TM-5 in which the notice of opposition is to be filed, at the top of it, specifically mentions the fee of Rs.2,500/-. Since, the petitioner has filed a leaflet of a cheque without the signature thereon, it could not be said to be a negotiable instrument and the filing had to be held to be defective. If a statute requires a thing to be done in a particular manner, it had to be done in that particular manner only. No such power to extend the time and receive the cheque subsequently could be read in Section 21 of the Trade Marks Act, nor could Section 131 be pressed into service, because, that Section will apply only where time is not expressly provided under the statute for doing a particular act. The order of Deputy Registrar refusing to review the initial order, though not happily worded, could be understood as accepting the submissions of respondent No.3, since they were incorporated in his order. He defended the order of the appellate board. It was dealing with the appeal against the order refusing to review the earlier order and it was correct on the touchstone of Order 47 Rule 1 of the Code of Civil Procedure. That apart, the petitioner was not without any remedy. On the trade mark of the respondent 3 being registered (which has been subsequently registered in December, 2007) the petitioner had the remedy to apply for rectification of the register under Section 57 of the Trade Marks Act. The petitioner had, in fact, made such a request in the proceedings before the Delhi High Court, and had filed the Rectification Application in June, 2008. Therefore, the petitioner was not remediless, and there was no reason for this Court to interfere with the orders passed by the authorities below. On merits also, it was submitted on behalf of the respondent 3 that the respondent 3 had a good case for registration of his trade mark and the petitioner had failed to get any injunction in the suits that the petitioner had filed in the Delhi High Court, which orders had been confirmed up to Supreme Court. 18. Inasmuch as Section 21 is a section under which this opposition to registration is filed, it would be advisable to refer to the same. This Section reads as follows : "21. Opposition to registration (1) Any person may, within three months from the date of the advertisement or re-advertisement of an application for registration or within such further period, not exceeding one month in the aggregate, as the Registrar, on application made to him in the prescribed manner and on payment of the prescribed fee, allows, give notice in writing in the prescribed manner to the Registrar, of opposition to the registration. (2) The Registrar shall serve a copy of the notice on the applicant for registration and, within two months from the receipt by the applicant of such copy of the notice of opposition, the applicant shall send to the Registrar in the prescribed manner a counter-statement of the grounds on which he relies for his application, and if he does not do so he shall be deemed to have abandoned his application. (3) If the applicant sends such counter-statement, the Registrar shall serve a copy thereof on the person giving notice of opposition. (4) Any evidence upon which the opponent and the applicant may rely shall be submitted in the prescribed manner and within the prescribed time to the Registrar, and the Registrar shall give an opportunity to them to be heard, if they so desire.

(5) The Registrar shall, after hearing the parties, if so required, and considering the evidence, decide whether and subject to what conditions or limitations, if any, the registration is to be permitted, and may take into account a ground of objection whether relied upon by the opponent or not. (6) Where a person giving notice of opposition or an applicant sending a counter@page-Mad200 statement after receipt of a copy of such notice neither resides nor carries on business in India, the Registrar may require him to give security for the costs of proceedings before him, and in default of such security being duly given, may treat the opposition or application, as the case may be, as abandoned. (7) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement on such terms as he thinks just. 19. While looking at Section 21, it is to be noted that the Trade Marks Act, 1999 is an Act to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks. Chapter 3 of this Act provides for the procedure for and duration of registration. Section 25(1) of the Act lays down that the Registration of a trade mark shall be for a period of 10 years, but may be renewed from time to time, in accordance with the provisions of this Section. Amongst others sub-section (3) of Section 25 provides that at the end of this period one has to obtain the renewal by paying the prescribed fee and if the same is not paid, a trade mark may be removed from the register. When it comes to application for registration Section 18 provides for the payment of necessary fee and sub-section 2 thereof provides that a single application may be made for registration of a trade mark for different classes of goods and services and fee payable thereof shall be in respect of each such class of goods or services. Similarly, Section 21(1) provides that an opposition to the registration has to be filed in the prescribed manner and on payment of prescribed fee. It also provides that such opposition is to be filed within three months from the date of advertisement, though the Registrar on an application made to him may extend the time not exceeding one month in the aggregate. Subsection (2) of Section 21 provides that the counter statement has to be filed within two months from the receipt of the copy of the notice of opposition or else it shall be deemed to have been abandoned. Only as far as the evidence upon which the parties are relying upon is concerned subsection(4) of Section 21 provides that it shall be submitted in the prescribed manner and within the prescribed time. As far as the submitting of evidence is concerned there is no specific period laid down for that. 20. These provisions have come to be considered by different High Courts from time to time. Thus, a single Judge of the Bombay High Court in Kantilal Tulsidas Jobanputra v. The Registrar of Trade Marks reported in 1982 PTC 127 while considering the requirement of filing of the evidence held that for filing of the evidence the benefit of Rule 53(2) of the earlier Trade and Merchandise Marks Rules, 1959 will be available. That was a case under the old Rules and was decided on 27th March, 1980. The Court held that the legislature never intended to lay down rigid rule. Same is the provision in the Rule 53 under the present Trade Marks Rules, 2002, which permits the Registrar to give leave to either of the parties to lead any evidence upon such terms as to costs or otherwise as he may think fit.

21. The distinction between the provisions under the sub-sections (1) and (2) of Section 21 on the one hand and sub-section (4) on the other was considered by a Full Bench of the Delhi High Court in Hastimal Jain v. Registrar of Trade Marks reported in 2000 PTC 24. Speaking for the Full Bench S.N.Variava, C.J. (as he then was) held that where legislature intended to prescribe a fixed time, it has specifically so done under Section 21(1) and 21(2) of the Act, but it has not so done under Section 21 (4), and the benefit of Rule 53 would be available for Registrar to give extended time to the parties to file evidence. The Full Bench quoted with approval the judgment of the Bombay High Court in Kantilal Tulsidas Jobanputra (supra). 22. In Seiko Cables of India v. Hattori Seiko Company Ltd. reported in 2002 (24) PTC 558 (Del) a learned single Judge of the Delhi High Court was concerned with the situation where the counter statement under Section 21(2) was filed within the prescribed period, but was deficient in fee by Rs.20/-, and it was not made good in time. Relying upon the dicta in Hastimal Jain (supra) the learned single Judge held that the Registrar was justified in making an order about abandonment. This view also stands to reason for the simple reason otherwise it will mean that there will be a separate and extended time limit for filing prescribed fee. As seen earlier the Form TM-5 clearly states at the top of it that the fee prescribed is Rs.2,500/-. It is a special Act and one has to be vigilant and careful about ones right and steps to be taken. To oppose the registration @page-Mad201 of a trade mark, one has to go in the particular manner as prescribed under the Act. 23. This is also in consonance with the proposition long laid down in Taylor v. Taylor, 1875 (1) Ch.D. 426 where Jessel, M.R. laid down that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, and that other methods of performance are necessarily forbidden. This dicta has been followed in a number of judgments and to cite one, in Ramachandra Keshav Adke v. V.Govind Jyoti Chavare reported in AIR 1975 SC 915, the question before the Apex Court was with respect to surrender of a tenancy by a tenant in order to be valid and effective under the Bombay Tenancy and Agricultural Lands Act, 1948. The Apex Court held that the surrender had to be done in the manner prescribed under the Act and then only it would be effective. 24. The other submission of Mr. P. S. Raman, learned Advocate General for the petitioner was that this was a fit case where period of limitation deserved to be extended. We are afraid that it will be difficult to accept this proposition when considered on the touchstone of Section 29(2) of the Limitation Act. Section 29(2) of the Limitation Act lays down that where a special Act provides a period of limitation different from the period specified under the Limitation Act, the provisions of Section 4 to 24 of the Limitation Act will apply only so far as and to the extent to which, they are not expressly excluded by such special or local law to the suits, appeals or applications under the special law. 25. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker reported in (1995) 5 SCC 5 : (AIR 1995 SC 2272) the Apex Court was concerned with the special provision of limitation provided under Section 18 of the Kerala Rent Control Act. Although there was no express exclusion of any provision, in view of this special provision the Apex Court held that the provisions of the Special Rent Act on limitation will apply.

26. Similarly, in Union of India v. Popular Construction Company reported in (2001) 8 SCC 470 : (AIR 2001 SC 4010) while considering the limitation under Section 34(3) and its proviso as occurring in the Arbitration and Conciliation Act, 1996, the Apex Court held that the express exclusion can also be inferred from the scheme and objectives of the Act, one of which was to restrict judicial intervention in arbitral matters as much as possible. 27. In the instant case, the Trade Marks Act, 1999 is a special Act. It gives a special right to the parties who want their goods and services to be protected by getting a registration of the trade mark. Anybody who is keen to oppose any such registration has also to be vigilant and has to oppose the registration in the prescribed manner, in the prescribed time, and on payment of prescribed fee within the time provided for that purpose. The counter statement is also to be filed in the prescribed time and in the prescribed manner. The notice of opposition and the counter statement are like the plaint and the written statement of the proceeding. If the Special Act provides for specific time, manner and fees for filing of the plaint, it has to be so done in compliance and the requirements cannot be relaxed. Subsection 21(7) of the Act provides only for amendment of the notice of opposition and counter statement, but that cannot be construed as a provision to cure any deficiency in the requirement of Sections 21(1) and 21(2) of the Act. Section 131 and Rule 53 can also not be pressed into service, since that Section will apply only where time is not expressly provided under the statute and Rule 53 is concerning the time for leading the evidence. It cannot apply to filing of notice of opposition or the counter statement. Any other interpretation will defeat the objective of the Act, and hence, cannot be accepted. 28. The last submission of Mr.P.S.Raman, learned Advocate General is that a litigant should not be made to suffer on account of the failure on the part of its counsel or power of attorney holder as in the present case. Mr.Raman, relied upon the observations of the Apex Court in Lala Mata Din v. A. Narayanan reported in (1969) 2 SCC 770 : (AIR 1970 SC 1953). That was a case concerning a suite for rendition of accounts and an error had crept up in the manner in which the valuation of the reliefs was done, which was because of the mistake of their counsel. It was in that background that the time was extended by invoking Section 5 of the Limitation Act. In the present case, as seen above, we are concerned with a special Act, where there are specific provisions to act in a particular manner for filing the notice of opposition to the registration as well as for filing the counter statement. It may also be @page-Mad202 noted that it is a specialized field where specialized attorneys appear for the parties. That apart, an effective alternative remedy is very much available to the petitioner under the statute by filing a rectification application under Section 57 of the Act, which the petitioner has already filed. The only difference between the two proceedings will be that in the rectification proceedings the burden of proof will be on the petitioner, whereas in the opposition proceedings the burden of proof will be on the respondent 3. 29. For the reasons stated above, we do not see any error in the order passed by the Deputy Registrar of Trade Marks, Chennai in returning the notice of opposition filed by the petitioner, nor do we see any

error on the part of the Appellate Board in rejecting the appeal against the refusal to review that order. No case is made out to review the order passed by the Deputy Registrar of Trade Marks, Chennai, and therefore, there was no error in rejecting the appeal. In the circumstances, we hereby dismiss this writ petition, however, without any order as to costs. Consequently, connected miscellaneous petition is also dismissed. Petition dismissed. AIR 2009 MADRAS 202 "T. T. Gananamurugan v. Inspector General of Registration" MADRAS HIGH COURT Coram : 1 K. N. BASHA, J. ( Single Bench ) T. T. Gnanamurugan and Anr. v. Inspector General of Registration, Chennai and Anr. W.P. No. 6015 of 2000, D/- 6 -4 -2009. Stamp Act (2 of 1899), Sch.1, Art.58(A)(ii), Art.4, S.2(24) - STAMP DUTY - DOCUMENTS - DEED - Stamp duty - Construction of instruments - In order to constitute 'settlement' there must be disposition or distribution of property - Document in question titled as 'agreement deed' - Recital revealed that patta of property wrongly given in name of petitioner's brother and nephew as such they have no objection for giving separate patta in name of petitioner - No disposition or distribution of property - Document concerned is not 'settlement deed' - Same is merely deed of declaration - Stamp duty would be payable under Art.4 and not under Art.58(A)(ii). (Paras 17, 18) Cases Referred : 2003 (2) Mad LW 253 2003 (1) CTC 295 AIR 2001 Mad 101 AIR 1977 SC 500 AIR 1950 SC 218 Chronological Paras 7 7 7 13 7

N. Damodaran, for Petitioners; Mrs. Lita Srinivasan, Govt. Advocate, for Respondents. Judgement ORDER :- This petition was heard on 08.04.2009 and again posted on 24.04.2009 for certain clarifications and after hearing both sides this order is passed today, i.e., on 28.04.2009. 2. The petitioner has come forward with this Writ Petition seeking for the relief of calling for the records relating to the proceedings of the Inspector General of Registration, Santhome High Road, Chennai-600 028 made in Pa.Mu.No. 17473/E3/95 dated 14.10.1999 received on 8.2.2000 the 1st respondent herein

and the proceedings of the District Registrar, Tirupur made in No.3271/83/94 dated 20.1.1995, the second respondent herein and quash the same. 3. The case of the petitioner is that as per the compromise decree passed on 25.4.1970 in O.S.No.272/1990 on the file of the Subordinate Judge, Coimbatore for partition and separate possession of the property comprised in Survey No.376, Ravanapuram Village, the petitioner and all other respective parties were in possession and absolute enjoyment of their shares. That being the position, the petitioner applied to the Tahsildar, Udumalpet to effect sub-division of the property to their respective possession on 12.1.1992 and necessary fees also paid. The Tahsildar, Udumalpet while effecting the sub-division committed mistakes and omissions in respect of the properties. It is further stated that the wrong inclusion of the survey numbers by the Revenue authorities will not confer any title upon other sharers, namely, the brother of the petitioner in respect to the said extent of lands and as such, the petitioner and his brother and his brother's son entered into a deed of confirmation dated 30.5.1994, wherein it was made clear that the other sharers namely, the brother of the petitioner and his brother's son have no objection for the petitioner to get a separate patta in respect of the portion under his possession and enjoyment. The petitioner further states that by such confirmation, the petitioner's brother and his brother's son only confirmed the title interest and possession of the petitioner herein in an extent of 89 cents in @page-Mad203 Survey No.376/2 of Ravanapuram Village and by the said document they have also conveyed their no objection for transferring the patta wrongly given in their names. 4. The further version of the petitioner is that when the above said document was presented for registration before the Sub-Registrar, Komangalam on 30.5.1994, the said authority impounded the said document by treating it as a Settlement Deed and valued the property at Rs.3,25,954/- and directed the petitioner to pay the deficit stamp duty of Rs.39,120/-. The 2nd respondent accepted the said view of the Sub-Registrar, Koramangalam by interpreting the said document as Settlement Deed, issued a showcause notice dated 18.11.1994 calling upon the petitioner to give his explanation why he should not pay the deficit stamp duty of Rs.39,110/- and Rs.90/- towards penalty within one month from the date of the said show cause notice. The petitioner submitted a detailed explanation dated 12.1.1995 to the said show cause notice. 5. It is further stated by the petitioner that the second respondent without properly considering the facts of the case and without properly adverting to the recitals of the documents confirmed the earlier order in his proceedings No.3271/B1/94 dated 20.1.1995 and directed the petitioner to pay the amount within one month from the date of receipt of such proceedings. Being aggrieved against such order, the petitioner preferred a statutory appeal before the first respondent herein and the first respondent after hearing the matter, passed the impugned order dated 14.10.1999 confirming the orders of the second respondent herein. 6. Mr.N.Damodaran, the learned counsel appearing for the petitioner contended that both the respondents 1 and 2 have wrongly interpreted the disputed document as settlement deed without

considering the actual contents and recitals of the document. It is further contended that the reading of the document on the face of it makes it very clear that it is only a deed of confirmation and not a deed of settlement. The learned counsel for the petitioner also contended that both the authorities have ignored the detailed explanation given by the petitioner herein and passed the order mechanically without application of mind. It is contended that the second respondent while passing the original order dated 20.1.1995 clearly stated that the petitioner is entitled to prefer an appeal and accordingly, the petitioner preferred an appeal under Section 56(1) of the Indian Stamp Act, 1899 (hereinafter referred to as 'the Act') raising elaborate grounds. 7. The learned counsel would also submit that the first respondent passed the impugned order without even adverting to and considering the detailed grounds raised by the petitioner herein. It is contended that the first respondent has not given reasons for confirming the order passed by the second respondent except incorporating certain portion of the disputed document presented by the petitioner for registration as a deed of confirmation. It is pointed out by the learned counsel for the petitioner that the portion incorporated from the disputed document in the impugned order shows that the brother and the son of the brother of the petitioner have no objection for the change of patta in the name of the petitioner and as such recitals, the said document could not be construed to be a deed of settlement as the brother and the brother's son of the petitioner have not conveyed or transferred any of their property and they have simply declared and confirmed the property which were already in possession and enjoyment of the petitioner and the title of the property belonging to the petitioner. It is contended that as such the disputed document has construed to be a 'deed of declaration' confirming the earlier partition effected between the parties and as such it would come under the Article 4 to the Schedule I of the Act attracting the stamp duty of Rs.20/- only. The learned counsel for the petitioner lastly contended that even assuming if not admitting that there is any doubt about the interpretation of the document in dispute, the first respondent ought to have invoked Section 57 of the Act and referred the matter to this Court. The learned counsel in support of his contention placed reliance on the following decisions : (1) Chief Controlling Revenue Authority v. M.S.Dhanakodi reported in 2000 (IV) CTC 275 : AIR 2001 Mad 101; (2) Dulip Singh v. Chief Controlling Revenue Authority and Inspector General of Registration reported in 2003 (1) CTC 295; (3) V.S.Somasundaram v. The Chief Controlling Revenue Authority reported in 2003 (2) L.W. 253; and (4) Chief Controlling Revenue Authority @page-Mad204 v. The Maharashtra Sugar Mills Limited reported in AIR 1950 SC 218; 8. Per contra, the learned Government Advocate contended that there is no illegality or infirmity in the impugned order passed by the first respondent and the original order passed by the second respondent to the effect that the disputed document is a deed of settlement and not a mere deed of confirmation.

It is submitted that the petitioner only preferred a revision invoking Section 56(1) of the Act and not an appeal. The learned Government Advocate would further contend that the authorities have rightly classified the document as a deed of settlement as per the definition of the deed of settlement under the sub-section (24) of section 2 of the Act and chargeable to duty as per Article 58(A) (ii) of the Schedule I to the Act, 1899. Therefore, it is submitted that the Writ Petition is liable to be dismissed as devoid of merits. 9. I have carefully considered the rival contentions put forth by either side and also thoroughly scrutinised the entire materials available on record including the impugned orders passed by the first respondent herein confirming the order passed by the second respondent. 10. The crux of the question involved in this matter is in respect of the interpretation of the disputed document involved in this matter, namely, whether the instrument is a 'deed of settlement' as held by the respondents or a 'deed of confirmation' as contended by the petitioner. 11. Before proceeding to consider the above said question, it is relevant to refer the provision for definition of 'settlement' under the Act. Section 2(24) of the Act defines 'settlement' which reads hereunder : "2. Definitions (24) Settlement :- "Settlement" means any non-testamentary disposition in writing of movable or immovable property, made(a) .... (b) for the purpose of distributing property of the settlor among his family or those for whom he desired to provide, or for the purpose of providing for some person dependent on him, or (c)...." 12. A reading of the above said provision makes it crystal clear that the quintessence of the definition of the word "settlement" in clause 24 (b) to Section 2 of the Act is that the property should be distributed among the members of the family of the settlor or should be ordained to be given to near and dear to him. In the absence of any such clause express or implied to be culled out by necessary implication from out of the instrument to conclude about distribution of property, either movable or immovable among the settlor's heirs or relatives, it would be difficult to hold that such an instrument should be treated as a settlement. 13. The Hon'ble Apex Court in Madras Refineries v. Chief Controlling Revenue Authority reported in AIR 1977 SC 500 while dealing with the definition of "settlement" also referred the definition of the term "disposition" used in the above said provision as hereunder :

"The terms "disposition" has been defined in Stroud's Judicial Dictionary as a devise "intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law" and "includes transfer and charge of property." 14. In the light of the above said definition of the term "settlement", let me now scrutinise and peruse the disputed document involved in this matter. 15. It is to be borne in mind that in order to interpret the nature of a document, the document should be read as a whole and any isolated portion of the document cannot be taken into consideration. It is well-settled by a catena of decisions of the Hon'ble Apex Court that it is a sound cannon of construction that all parts of a document are to be read together; no portion can be read disjunclively or in isolation or omitted. 16. It is also equally important that in order to interpret a document, the recitals in the said document ought to be generally safe and sole guide for such interpretation. The Hon'ble Apex Court in the decision cited supra in the Madras Refineries's case also held that, "In order to determine whether any, and if any, what stamp duty is chargeable upon an instrument the legal rule is that the real and true meaning of the instrument is to be ascertained, that the description of it given in the instrument, itself by the parties is immaterial." 17. A perusal of the disputed document discloses that it is dated 30.05.1994 and titled as "agreement deed". There are three parties to the document, namely, the petitioner, the petitioner's brother and his @page-Mad205 brother's son. The third party to the document is the petitioner herein; the first party is the brother of the petitioner; the second party is the brother's son of the petitioner. The recitals of the document reveals that all the three parties including the petitioner were in actual possession and enjoyment of the property situated at Ravanapuram village under Survey No.376/2 as per the partition deed dated 01.08.1949 under the document No.2908/49. It is revealed from the impugned document that the patta was wrongly given in the names of the parties 1 and 2, namely, the petitioner's brother and brother's son in respect of the portion of the property under the above said survey Number, namely, 376/2 and as such the parties 1 and 2 have no objection for giving a separate patta in favour of the third party, namely, the petitioner herein. Therefore, the above said recitals contained in the impugned document makes it crystal clear that there is no distribution or disposition of the property in favour of the petitioner or any one of the parties to the impugned document and the parties 1 and 2 have not transferred or conveyed any share of their property in favour of the petitioner herein. All the three parties to the impugned document were in continuous possession and enjoyment of their respective portion of the property as per the partition deed dated 01.08.1949 as stated above. The ingredients of the provision under Section 2(24)(b) of the Act to the definition of settlement are not at all attracted from the recitals of the impugned document. 18. Though the document is described as "agreement deed", the recitals of the document reveals that it is nothing but a deed of declaration of confirmation of the earlier partition effected between the parties

and their possession and enjoyment of their respective portion of the property and as such it would attract stamp duty under the Article 4 to the Schedule I of the Act, namely, affidavit including the confirmation or declaration in the case of persons by law allowed to affirm or declare instead of swearing. 19. Now coming to the impugned orders passed by the respondents 1 and 2, it is to be stated, at the outset, that both the respondents have wrongly interpreted the instrument involved in this matter construing the said document as "settlement deed" ignoring and overlooking the fact that none of the ingredients to the definition of settlement under Section 2(24)(b) of the Act made out. It is pertinent to note that both the respondents considered and referred only an isolated portion of the impugned document instead of reading the document as a whole. The respondents 1 and 2 have not read the recitals together and also not considered the true character of the document. Therefore, this Court has no hesitation to hold that the impugned orders passed by the respondents 1 and 2 are unsustainable in law and accordingly, the impugned orders passed by the first respondent in Pa.Mu.No. 17473/E3/95 dated 14.10.1999 and the second respondent in No.3271/83/94 dated 20.01.1995 are hereby quashed. 20. It is made clear, as already pointed out, that the impugned document would attract stamp duty under Article 4 to the Schedule I of the Act. The Writ Petition ordered accordingly. No costs. Petition allowed. AIR 2009 MADRAS 205 "R. Gunaseelan v. Dental Council of India, New Delhi" MADRAS HIGH COURT Coram : 1 S. NAGAMUTHU, J. ( Single Bench ) Dr. R. Gunaseelan v. Dental Council of India, New Delhi. W.P. No. 6431 of 2009, D/- 29 -4 -2009. Dentists Act (16 of 1948), S.6(1) - Dental Council of India (Term of Office of Members of DCI) Regulation (2008), Regn. 2 - DENTIST - ELECTION - Term of office of elected members - S.6 of Act provides that elected member shall hold office for 5 years or until his successor has been duly elected, whichever is longer - Whereas Regulation of 2008 provides that elected members shall not remain in office beyond 6 months from expiry of above said 5 years term - Apparent inconsistency in both provisions - Regulation of 2008 declared as void to the extent of inconsistency with Act - Non-mention of time limit either in Act or Regulation with regard to holding of elections, causing all such confusions - Need for amendment emphasised. (Paras 11, 14, 17, 18) Cases Referred : Chronological Paras

AIR 2008 SC 2941 : 2008 AIR SCW 4946 10, 12

2004 (3) SCC 48 10, 12.1 AIR 2003 SC 1191 : 2003 AIR SCW 752 @page-Mad206 10, 12

O.P. No. 1808 of 2003 D/-21-3-2003 (Ker) AIR 1999 SC 3853 : 1999 AIR SCW 3931 3, 7, 17

R. Krishnamurthy, Sr. Counsel, for V.R. Appaswamee, for Petitioner; M. Ravindran, A.S.G., for P. Chandrasekaran, S.C.G.C., for Respondents. Judgement ORDER :- The petitioner challenges the Dental Council of India (Term of Office of Membership of DCI) Regulations 2008 as ultra vires of the provisions of the Dentists Act, 1948. 2. The petitioner is an elected member of Dental Council of India from Tamil Nadu State Dental Council with effect from 27.06.2003. The term of office is only for five years. Section 6(1) of the Dentist Act 1948 states, "that subject to the provisions of this section, an elected or nominated member shall hold office for a term of five years from the date of his election or nomination or until his successor has been duly elected or nominated, whichever is longer". But there is no provision in the Act, which compels the authorities to hold election to fill up the vacancies or expected vacancies within a prescribed time. 3. This Court is informed that several such elected members to the Dental Council of India see to that there is no election from the respective State Dental Councils and as a result they perpetuate the office forever. The above situation was brought to the notice of the Hon'ble Supreme Court in Dental Council of India and another v. Dr.H.R.Prem Sachdeva and others reported in (1999) 8 SCC 471 : (AIR 1999 SC 3853). 4. The Supreme Court after analysing various provisions of the Act as well as the Dental Council Election Regulations of 1952, in paragraph Nos. 7 and 8 held as follows : "7. A conjoint reading of the various provisions of the Act and the Regulations referred to above go to show that the term of office of the members of the Council is five years from the date of the election or nomination, as the case may be. Section 6(1), however, also provides that a nominated or elected member, after the expiry of the term, may continue "until his successor has been duly elected or nominated, whichever is longer". The expression "whichever is longer" does suggest the continuation after the expiry of the term. Can it, however, be construed to mean that if the authorities fail to act as per clauses (a) to (f) of Section 3, the member concerned can continue to remain in office till perpetuity? In our opinion that could not be the intention of the law-makers. Regulation 23 (supra) does give an indication of what we have said above.

8. A reasonable interpretation of the provisions of the Act and the Regulations would be that elections/nominations to the Council should normally be held/made once in five years. However, if for some valid reasons the elections cannot be held during the term of five years, the same should be held within a reasonable time thereafter and the continuance in office of the elected/nominated members should not go on for perpetuity. The continuance in office, after the expiry of the term, should only be a stopgap arrangement to avoid a vacuum. The obligation to nominate/hold elections is of various authorities obliged to elect/nominate members to the Council under clauses (a) to (f). The Act and the Regulations are silent about the period during which elections/nominations should be made/held as also about the consequences of not holding the elections or making nominations within the five-year term or soon thereafter and this lacuna gives rise to unnecessary litigation. We hope that the authorities concerned shall take appropriate measures by amending the provisions of the statute or the Regulations or frame appropriate rules so that the ambiguity regarding the maximum period, after the expiry of the five-year term during which election/nomination should be held/made is removed". 5. Subsequently, going by the said observation made by the Supreme Court, the Dental Council of India introduced a new Regulation as Dental Council of India (Term of Office of Membership of DCI) Regulations 2008, taking effect from the date of notification. The said Regulation reads as follows : "1. Short title and commencement : (i) These Regulations shall be called the "Dental Council of India (Term of Office of Membership of DCI) Regulations, 2008. (ii) They shall come into force from the date of its publication in the Official Gazette. 2. Term of Office of Membership of DCI : Subject to the provisions of this section an elected or nominated member shall hold office for a term of five years from the date of his election/nomination or until his successor has been duly elected/nominated but not beyond six months from the expiry of his five-year term when he shall cease to be a member of the DCI. (Provided that a member nominated under clause (e) or clause (f) @page-Mad207 of section 3 shall hold office during the pleasure of the authority nominating him)." 6. According to the petitioner, the above regulation to the extent that it provides that an elected or nominated member of DCI shall not hold office beyond six months from the expiry of his five-year term when he shall cease to be a member of the DCI is contrary to Section 20 as well as Section 6(1) of the Dentists Act. It is submitted that in so far as Section 6(1) of the Act is concerned, it makes it abundantly clear that an elected or nominated member will continue to hold office even after the expiry of the period of five years till a new member is duly elected. Whereas, the impugned Regulation is contrary to the same to say that an elected or nominated or nominated member shall not hold office beyond six months from the date of expiry of his term. This according to the petitioner is inconsistent with the provisions of the Act and thus, it is null and void.

7. In the counter-affidavit filed by the respondent, it is stated that the Regulation was introduced in tune with the observations made by the Hon'ble Supreme Court in the case of Dental Council of India and another v. Dr.H.R.Prem Sachdeva and others reported in (1999) 8 SCC 471 : (AIR 1999 SC 3853), in order to see that the office of the membership in the Dental Council of India is not perpetuated by any one even after the expiry of the term of office. It is further submitted that there is no inconsistency between the impugned Regulation and any of the provisions of the Dentists Act. It is also stated that a Division Bench of Kerala High Court in Indian Dental Association, Central Kerala Branch v. Union of India in O.P.No.1808 of 2003 (S) by an order dated 21.03.2003 held that the provision in Section 6 cannot entitle a member to continue perpetually, merely because the State or the University or any other concerned authority does not hold the election. The impugned Regulation is in tune with the said view taken by the Division Bench of Kerala High Court, it is contended. 8. I have heard Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the petitioner and Mr.M.Ravindran, learned Additional Solicitor General appearing for the respondent and also perused the records. 9. A perusal of the judgment of the Supreme Court as extracted above would show that the Supreme Court has expressed its anguish that the Act and the Regulations are silent about the period during which elections or nominations should be made or held as also about the consequences of not holding the elections or making nominations within the five-year term or soon thereafter and this lacuna gives rise to unnecessary litigation. After expressing the said anguish, the Supreme Court has further observed that it is for the authorities concerned to take appropriate measures by amending the provisions of the statute or the Regulations or to frame appropriate Rules. If the entire judgment of the Supreme Court is analysed, there can be no difficulty to understand that the Supreme Court has only said that the Parliament authorities should amend the Act or the Regulation so as to ensure that elections are held within a prescribed time either within the five-year term or soon thereafter. The Hon'ble Supreme Court has not said that the authorities may issue a Regulation so as to limit the continuation of an elected member after the expiry of the term of his office. But obviously, the judgment of the Supreme Court has not been properly understood by the Dental Council and the Dental Council has misdirected itself to issue the impugned Regulation only to say that an elected member shall not remain in office beyond six months from the date of expiry of his five-year term when he shall cease to be a member of the DCI. No effort has been taken to amend the Dental Council (Election) Regulations, 1952 so as to prescribe a time limit for holding the election either within the five-year term or soon thereafter as observed by the Supreme Court. 10. Mr.R.Krishnamoorthy, learned Senior counsel for the petitioner has relied on the following decisions of the Supreme Court, in support of his arguments that the impugned Regulation is void as the same is inconsistent with Section 6(1) of the Act. (i) State of M.P. and another v. Bhola alias Bhairaon Prasad Raghuvanshi reported in (2003) 3 SCC 1 : AIR 2003 SC 1191. (ii) ITW Signode India Ltd., v. Collector of Central Excise reported in (2004) 3 SCC 48.

(iii) Novva Ads v. Secretary, Department of Municipal Administration and Water Supply and another reported in (2008) 8 SCC 42 : AIR 2008 SC 2941. 11. A comparison of Section 6(1) and the impugned Regulation would go to show that Section 6(1) does not prescribe that an elected member shall not remain in office beyond six months from the date of expiry of his five-year term and instead it says that @page-Mad208 he shall hold office until his successor has been duly elected or nominated, whichever is longer. But the impugned Regulation prescribes that he shall not remain in office beyond six months from the expiry of his five-year term. Thus the inconsistency is so apparent. 12. In State of M.P. and another v. Bhola alias Bhairaon Prasad Raghuvanshi reported in (2003) 3 SCC 1 : (AIR 2003 SC 1191), the Supreme Court in paragraph 20 has held as follows : "20. A delegated legislation can be declared invalid by the court mainly on two grounds: firstly, that it violates any provision of the Constitution and secondly, it is violative of the enabling Act. If the delegate which has been given a rule-making authority exceeds its authority and makes any provision inconsistent with the Act and thus overrides it, it can be held to be a case of violating the provisions of the enabling Act but where the enabling Act itself permits ancillary and subsidiary functions of the legislature to be performed by the executive as its delegate, the delegated legislation cannot be held to be in violation of the enabling Act" 12.1 In ITW Signode India Ltd., v. Collector of Central Excise reported in (2004) 3 SCC 48, in Paragraph No.56, the Supreme Court has held as follows : "56. ... It is a well-settled principle of law that in case of a conflict between a substantive Act and delegated legislation, the former shall prevail inasmuch as delegated legislation must be read in the context of the primary/legislative Act and not vice versa." 12.2 In Novva Ads v. Secretary, Department of Municipal Administration and Water Supply and another reported in (2008) 8 SCC 42 : (AIR 2008 SC 2941), the Supreme Court in paragraph No.40 has held as follows : "40. It is well settled that a delegated legislation would have to be read in the context of the primary statute under which it is made and, in case of any conflict, it is primary legislation that will prevail." 13. A close reading of all the above judgments of the Supreme Court would show that the Supreme Court has time and again held that a delegated legislation should be read in the context of the primary statute and it should not be in any manner inconsistent with the statute. 14. As I have already held, in the case on hand, the Regulation to the extent that it prescribes that an elected member shall not remain in office beyond six months from the expiry of his five-year term when

he shall cease to be a member of the DCI is inconsistent with the Act and therefore to that extent, I have to hold that it is void. 15. The learned Additional Solicitor General would submit that because of the interim stay granted by this Court in this case, there has been no election held by the State Dental Council. He would further state that somehow or the other, the elected members from the State Councils see to that there is no fresh election held in time and as a result they perpetuate their office. He would also submit that therefore, there may be a direction issued to the Tamil Nadu State Dental Council to hold the election to fill up the existing vacancies within a time frame. 16. Though the Tamil Nadu State Dental Council is not a party before this Court, I do not think that by issuing a direction to the State Council to discharge their statutory function to hold election, would be in any manner prejudicial because they are not heard in this writ petition. Therefore, I deem it appropriate and also necessary to issue such a direction. 17. I would also like to mention that though the Hon'ble Supreme Court as early as in 1999 in the case of Dental Council of India and another (cited supra) emphasised the need for appropriate measures by amending the provisions of the statute or to issue appropriate Regulation, it is unfortunate that no such amendment has been brought in the Act or no Regulation has been issued in respect of the election so as to make it mandatory for the authorities to hold election well in time. I am hopeful that at least now such provisions would be made without any further delay. 18. In the result, the writ petition is allowed; the Dental Council of India (Term of Office of Membership of DCI) Regulations 2008, to the extent that it provides that an elected or nominated member shall not hold office beyond six months from the expiry of his five-year term when he shall cease to be a member of the DCI, is declared null and void and the same is struck down. The Tamil Nadu State Dental Council is directed to hold election to fill up the existing vacancies on or before 30.06.2009. No costs. Consequently, connected miscellaneous petitions are closed. Petition allowed.