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Jabalpur

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sec.420 – cheating – agreement of sale – received Rs.50 lakhs – sold parking place kept for a Club House as per municipal records – committed an offence – when there is ample evidence on record to say that accused played fraud on complainant – quashing of complaint is wrong – High court orders are set aside = Ashfaq Ahmed Quereshi & Anr. …Appellants Versus Namrata Chopra & Ors. …Respondents = judis.nic.in/supremecourt/filename=41096

sec.420 – cheating – agreement of sale – received Rs.50 lakhs – sold parking place kept for a Club House as per municipal records – committed an offence – when there is ample evidence on record to say that accused played fraud on complainant – quashing of complaint is wrong – High court orders are … Continue reading

Maharshi Mahesh Yogi Vedic Vishwavidyalaya Adhiniyam, 1995 (Act No.37 of 1995) Apex court declared sec.4 (1) also as ultravires which was omitted by Division bench – partly allowed the appeal confirming other findings of Division bench,= the Division Bench allowed the writ petition in part. The challenge in the writ petition was to the amendment introduced to Sections 2, 4, 9 and 17, as well as insertion of Sections 31-A, 31-B, 31-C, 37-A, 37-B to the Maharshi Mahesh Yogi Vedic Vishwavidyalaya Adhiniyam, 1995 (Act No.37 of 1995), hereinafter referred to as “1995 Act”. The Division Bench upheld the amendment to Section 4(1) of 1995 Act. The Division Bench also held that the amendment to Sections 9(2), 31-A(1) and (2), 31-B, 31-C, 37-B(a), 37-B(b), 37- B(d) and 37-B (e) are intra-vires. The Division Bench further held that the proviso to Section 4 is intra-vires, as far as it provides that no Centres shall be established without prior approval of the State Government and no centre would mean no further Centres excluding the existing ones. The Division Bench further held that the said proviso as far as it stipulated that no courses should be conducted or run without the prior approval of the State Government is ultra-vires, as far as, it related to the present stream of courses and the existing Centres. Section 37-A was held to be ultra-vires in its entirety. Section 37-B (e) was held to be not ultra-vires.= We also hold that the said provision does not in any way offend Article 14 of the Constitution, nor does it affect the autonomy of the appellant University. Apart from the above challenges, no other submission relating to the other amended provisions were seriously argued before us. 114. In the light of our above conclusion, this appeal is partly allowed. We hold that the amended Section 4(1) under Act 5 of 2000 inclusive of the introduction of proviso to the said Section is ultra-vires of the Constitution and the same is liable to be set aside. In other respects, the judgment of the Division Bench stands confirmed. The application for intervention considered, no merits, the same is dismissed.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40500 Page 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6736 OF 2004 Maharshi Mahesh Yogi Vedic Vishwavidyalaya …Appellan t – Versus – State of M.P. & Ors. …Respondents J U D G M E N T Fakkir Mohamed Ibrahim Kalifulla, J. 1. This appeal is directed against the Division … Continue reading

professional misconduct of the advocate=1. (a) Whether the Respondent-Advocate purchased the property from Jitendra Singh Bhakna as described at Page No. 5 in Sale Deed dated 3.11.99 of which the Respondent Advocate who was attesting witness? (b) Whether the Respondent Advocate deliberately filed suit for eviction in the name of Jitendra Singh Bhakna against the complainant although the respondent was the owner thereof as mentioned in the sale deed dated 3.11.99? (c) Whether the respondent advocate has been guilty of professional mis-conduct? 2. Result ? = who having knowledge purchased a disputed property with ulterior motive=The punishment for professional misconduct has twin objectives – deterrence and correction. Having

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s). 2293 OF 2005 DHANRAJ SINGH CHOUDAHRY Appellant (s) VERSUS NATHULAL VISHWAKARMA Respondent(s) WITH Civil Appeal NO. 4484 of 2005 J U D G M E N T R.M. Lodha, J. These two Appeals have been preferred by Advocate Dhanraj Singh Choudhary … Continue reading

Code of Civil Procedure, 1908: s.47 – Execution of decree – Executing court – Jurisdiction of – Scope – Held: Executing court has no jurisdiction to modify a decree – It cannot go behind the decree and must execute the decree as it is. Default clause contained in a compromise decree – Nature of – Held: It is not penal in nature – s.74 of the Contract Act is not attracted – Stipulation to pay interest @ 18% p.a. for default in payment within agreed period not unreasonable. In a suit for declaration and permanent injunction between brothers and sisters in respect of ancestral property, compromise petition was filed by the parties which was accepted by the Court. A decree was passed thereupon. Some of the terms of compromise decree were that the respondents-defendants would pay Rs.10 lakhs to the appellants-plaintiffs and in case of failure of payment within stipulated time, appellant would be entitled to claim interest thereon @ 18% p.a. and that respondents would be at liberty to alienate/sell the suit property. As payment was not made in terms of the consent decree, the appellants filed an application for execution. Respondents filed objection under s.47 CPC before the executing Court, which was rejected. A revision petition was filed thereagainst contending that the respondents were not liable to pay interest @ 18% p.a. The High Court rejected the objection holding that the consent decree was beyond the subject matter of the suit. Moreover, it opined that the question as to whether the stipulation of payment of interest @ 18% p.a. on the judgment debtors is in the nature of penalty and is unreasonable within the purview of s.74 of the Contract Act, 1872 or not, should be considered afresh by the Executing Court. The Executing Court directed payment of interest @ 14% p.a. Respondents filed writ petition. High Court reduced the rate of interest to 9% p.a. holding that the litigating parties were real brothers and sisters, the consent decree was not in respect of any commercial transaction and in the circumstances, the stipulation of interest in default of payment within the agreed period was by way of penalty, and thus the rate of interest of 18% p.a., looking at the nature of decree, was unreasonable and excessive. Hence the present appeal. =Allowing the appeal, the Court HELD: 1. A decree remains valid unless set aside. Respondents never challenged the validity or otherwise of the said consent decree. It was acted upon. They disposed of the suit property pursuant thereto and, thus, took advantage of a part thereof. It was, therefore, impermissible for them to resile therefrom. There is no doubt or dispute as regards interpretation or application of the said consent terms. [Paras 10 and 11] [643-d-e] 2. An executing court cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is. A default clause contained in a compromise decree even otherwise would not be considered to be penal in nature so as to attract the provisions of Section 74 of the Indian Contract Act. [Para 11] [643-f] Sova Ray & Anr. v. Gostha Gopal Dey & Ors. AIR (1988) SC 981, referred to. 3. Interest becomes leviable either under a statute or under a contract. The stipulation to pay interest at the rate of 18% per annum cannot, by itself, be said to be unreasonable. [Para 14] [645-d] P. D’Souza v. Shondrilo Naidu (2004) 6 SCC 649, distinguished Yogesh Mehta v. Custodian appointed under the Special Court & Ors. (2007) 2 SCC 624, held inapplicable. 4. The question as to whether the executing court had any jurisdiction to travel beyond the decree was not raised. The executing court had no such jurisdiction. The High Court while exercising the revisional jurisdiction also had no jurisdiction to invoke the provisions of Section 74 of the Contract Act which for all intent and purport amounts to modification of a valid decree passed by a competent court of law. The decision of the High Court, therefore, was wholly without jurisdiction. Furthermore, the High Court did not hold that Section 74 of the Contract Act will have application. It only remitted the matter to the executing court. [Para 17] [646-d-e] 5. No legal principle was adverted to by the executing court in reducing the rate of interest to 14 per cent and the High Court in reducing the same further to 9 per cent. In a large number of decisions, interest has been directed to be paid even at the rate of 18 per cent or 21 per cent per annum. The executing court is directed to proceed to execute the decree as it is. [Paras 18 and 19] [646-f] Case Law Reference: AIR (1988) SC 981 referred to Para 12 (2004) 6 SCC 649 distinguished Para 15 (2007) 2 SCC 624 held inapplicable Para 16 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7310-11 of 2008. From the Judgment and final Order dated 29.9.2006 of the High Court of Madhya Pradesh at Jabalpur in Writ Petition Nos. 4112 of 2006 & 4173 of 2006. Arvind Kumar Shukla, Alok Shukla, G.P. Mishra, Purcham Mubarak and Irshad Ahmad for the Appellants. Shiv Sagar Tiwari, Varun Thakur and Rajesh Singh for the Respondent. =, , , 2008(16 )SCALE305 , 2009(1 )JT151

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 7310-7311 OF 2008 (Arising out of SLP (C) Nos.19271-19272 of 2007) Deepa Bhargava & Anr. … Appellants Versus Mahesh Bhargava & Ors. … Respondents JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. Whether the terms of a consent decree can be varied … Continue reading

Malegaon bomb blast – to enlarge her on bail on the ground of violation of the mandate of Article 22(1) and 22(2) of the Constitution of India and also on the ground of non-filing of charge sheet within 90 days as contemplated by Section 167(2) of the Code of Criminal Procedure, is rejected.-The plea that Article 22(2) of the Constitution was violated is based on the averment by the appellant that she was arrested on October 10, 2008. Factually this plea has not been found to be correct. The appellant was in fact arrested only on October 23, 2008. The affidavit filed by the appellant on November 17, 2008, on a careful perusal shows that the appellant was not arrested on October 10, 2008. Prayer in the said application did not ask for being set at liberty at all and only ask for an enquiry. Finding recorded by both the Courts i.e. the Trial Court and the

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1845 OF 2011 (Arising out of S.L.P. (Criminal) No. 5908 of 2010) Sadhwi Pragyna Singh Thakur … Appellant Versus State of Maharashtra …Respondent J U D G M E N T J.M. PANCHAL, J. Leave granted. 2. This appeal, by grant of … Continue reading

murder case convicted = `interested witness’ as: “A close relative who is a natural witness cannot be regarded as an interested witness. The term 9 `interested’ postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason.” =time of death- as the physical condition of a body after death depends upon various factors i.e. age, geographical and climatic conditions of the place of occurrence etc. = value of medical evidence – the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. = witness pshychology- “The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.”

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 339 of 2008 Rakesh & Another …Appellants Versus State of Madhya Pradesh …Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This criminal appeal has been preferred against the judgment and order dated 15.12.2006 passed by the … Continue reading

Transfer of Property Act, 1882: s.58 – Mortgage by conditional sale – Held: For transaction to constitute mortgage by conditional sale, it is necessary that the condition is embodied in the document that purports to effect the sale – Mortgage. s.58(e) – Mortgage – Essential conditions for a transaction to constitute an English mortgage – Held: What is important in terms of the requirement of s.58(e) is not that the purchaser has agreed or bound himself to transfer the property by a particular date but that the seller has bound himself to pay the amount by a certain date – In the instant case, sale- deed did not contain any stipulation binding the seller to pay an amount on a certain date – Agreement for re-conveyance was signed by purchaser only – Seller was not a signatory to the said agreement – The seller cannot, therefore, be said to have bound himself to re-pay the mortgage money on future date – The transaction was, thus, not in the nature of English Mortgage. Contract: Agreement for re-conveyance – Held: In a case where the parties enter into a transaction of sale and also execute an agreement for re- conveyance of the property sold, time stipulated for re-conveyance is the essence of the contract – In the instant case, the plaintiff-seller had failed to prove that he had tendered the stipulated amount to the purchaser within the date stipulated in the agreement for re-conveyance – Any claim for re-conveyance made in default of the said stipulation must fail for the right of re-conveyance cannot be saved from forfeiture in the case of default. Specific Relief Act, 1963: s.16(c) – Specific performance – Held: In a suit for specific performance, it is absolutely necessary for the plaintiff to assert that he/she was always ready and willing to perform the essential terms of the contract sought to be enforced against the defendant – s.16(c) makes that requirement mandatory – In the instant case, there was no averment as to the readiness and willingness of the plaintiff to perform his part of the contract – In the absence of such an averment, amendment of the plaint to incorporate a prayer for specific performance of the agreement for re-conveyance would not have advanced the case of the plaintiff. The plaintiff had executed a sale deed in favour of defendant no.1 on 6th, July 1974 in respect of the suit land for Rs.6000/-. He filed a suit for declaration that the sale deed executed by him was void and ineffective and that he continued to be in cultivating possession of the land as owner thereof. The plaintiff’s case was that the transfer of the suit land was only by way of security for the repayment of Rs. 6000/- which was taken only as a loan and an agreement was executed between the parties on 6th July, 1974 itself that the return of the loan amount by 6th July, 1981 would result in transfer back of the suit land. The trial court dismissed the suit. The plaintiff filed appeal before the first appellate court. During the pendency of the appeal, the plaintiff filed an application for permission to amend the plaint to add an alternative prayer to the effect that in case the sale-deed in favour of defendant no.1 was held to be validly executed, the plaintiff may be given a decree for specific performance by execution of a sale-deed for the transfer of the suit property in his favour. The first appellate court heard the appeal and the application for amendment together and dismissed both. The High Court held that the dismissal of the application for amendment by the first appellate court was not correct as the proposed amendment would not have made any material difference. On merits, the High Court took the view that whenever a sale-deed is accompanied by a document for re- conveyance of the property sold, the transaction between the parties would amount to a mortgage, subject to the condition that the mortgagee must get the property re-conveyed within the period stipulated for that purpose. The High Court relied upon revenue records for the year 1980-81 and on that basis held that the finding of the courts below that the property was not held jointly by the plaintiff and defendant no.2 was perverse and restrained defendant no.1 from interfering with the possession of the plaintiff till such time he obtained a decree for partition from the revenue court concerned. The instant appeal was filed challenging the order of the High Court = Dismissing the appeal, the Court HELD: 1.1. A bare reading of Section 58 of Transfer of Property Act, 1882 would show that for a transaction to constitute mortgage by conditional sale, it is necessary that the condition is embodied in the document that purports to effect the sale. That requirement is stipulated by the proviso which admits of no exceptions. The High Court overlooked the proviso to Section 58(c) according to which the condition regarding payment of the mortgage money as a condition for transfer of the property to the seller must be embodied in the sale-deed itself. That was not so in the instant case. The sale-deed executed by the plaintiff in the instant case did not embody any condition like the one referred to in clause (c) of Section 58. The broad statement of law made by the High Court to the effect that every sale accompanied by an agreement for re-conveyance of the property would constitute a mortgage by conditional sale was, therefore, not correct. [Paras 12, 13] [1030-H; 1031-A-D] K. Simrathmull v. Nanjalingiah Gowder AIR 1963 SC 1182 – relied on. 1.2. For a transaction to constitute an English mortgage the following essential conditions must be satisfied: (1) The mortgagor must bind himself to re-pay the mortgage money on a certain date; (2) The property mortgaged should be transferred absolutely to the mortgagee; (3) Such absolute transfer should be made subject to proviso that the mortgagee shall re- convey the property to the mortgagor upon payment by him of the mortgage money on the date the mortgagor binds himself to pay the same. It is only in cases where all the three requirements are satisfied that the transaction constitutes an English mortgage and not otherwise. The case at hand does not satisfy all the three requirements. In particular, the first requirement where under the mortgagor binds himself to re-pay the mortgage money on a certain date is not satisfied. That is so because the sale-deed executed by the plaintiffs-appellants does not contain any such stipulation binding the seller to pay the amount of Rs.6,000/- on a certain date. As a matter of fact, the sale-deed does not even remotely suggest that the transaction is in the nature of a mortgage or that there is any understanding or agreement between the parties whereunder the property sold has to be re-transferred to the seller. The only other document which could possibly contain such a stipulation binding the mortgagor to return the mortgage money is the agreement for re-conveyance. Significantly, this document was signed only by the purchaser and not by the seller. The document signed by purchaser is described as an agreement for re- conveyance. There is no doubt a stipulation that the purchaser has agreed to re-transfer the property to the seller in case the plaintiff returns the sum of Rs.6,000/- by 6th July, 1981, yet there is nothing in the document to suggest that the seller had bound himself to abide by that stipulation. What is important in terms of the requirement of Section 58(e) is not that the purchaser has agreed or bound himself to transfer the property by a particular date but that seller has bound himself to pay the amount by a certain date. Since the seller is not a signatory to the agreement of re- conveyance, it is difficult to see how he can be said to have bound himself to re-pay the mortgage money by the 6th July, 1981. The transaction was therefore, not in the nature of an English Mortgage and the suit was not a suit for redemption of such a mortgage. [Paras 16, 17] [1032-E-H; 1033-A-G] 1.3. It is incorrect to say that the stipulation of a date for payment of money as a condition for re-conveyance of the property is a clog on equity of redemption. The suit filed by the appellants did not proceed on the basis that the transaction between the parties tantamounted to a mortgage nor did the plaintiff pray for a decree for redemption from the court. The suit was one for declaration to the effect that the sale-deed executed by him was void and the plaintiffs continued to be owner and in occupation. The contention that the transaction between the parties was in the nature of a mortgage or that the suit was in substance one for redemption is accordingly rejected. [Para 17] [1033-G-H; 1034-A-B] 2. In a suit for specific performance, it is absolutely necessary for the plaintiff to assert that he/she was always ready and willing to perform the essential terms of the contract sought to be enforced against the defendant. Section 16(c) of the Specific Relief Act 1963 makes that requirement mandatory. There was no averment as to the readiness and willingness of the plaintiff to perform his part of the contract. In the absence of such an averment, amendment of the plaint to incorporate a prayer for specific performance of the agreement for re-conveyance would not have advanced the case of the plaintiff or the appellants who have succeeded him. Therefore, the view of the High Court that even if the prayer was allowed to be incorporated by amendment, since there was no averment in the plaint to the effect that the plaintiff was ready and willing to perform his part of the contract, any such amendment would be of little value was correct. [Para 18] [1034-C-G] Chunchun Jha v. Ebadat Ali AIR 1954 SC 345; Bismillah Begum (Smt) Dead by Lrs. v. Rahmtullah Khan (Dead) by Lrs. (1998) 2 SCC 226; Gauri Shankar Prasad and Ors. v. Brahma Nand Singh (2008) 8 SCC 287; Caltex (India) Ltd. v. Bhagwan Devi Marodia AIR 1969 SC 405 – relied on. 3. In a case where the parties have entered into a transaction of sale and also executed an agreement for re-conveyance of the property sold, time stipulated for re-conveyance is the essence of the contract. The courts below have concurrently held that the plaintiff had failed to prove that he had tendered the amount of Rs.6,000/- to the purchaser within the date stipulated in the agreement for re-conveyance. That being a finding of fact, any claim for re-conveyance made in default of the said stipulation must fail for the right of re-conveyance cannot in the case of default be saved from forfeiture. The general principle of law that equity grants relief against penalty in a money bond and also against the penal sums made payable on breach of bonds has an exception to it. The exception was recognized by the Federal Court in Shanmugam Pillai case where, by a majority, the Court held that if under an agreement an option to a vendor is reserved for re-purchasing the property sold by him, the option is in the nature of a concession or a privilege and may be exercised in fulfillment of the conditions on the fulfillment of which it is made exercisable. In the instant case there is no allegation of fraud, accident or surprise to call for intervention of equity so as to save the plaintiffs right of re-conveyance of the property against forfeiture. [Paras 19, 21, 22] [1034-H; 1035-A-C; 1036-C-F; 1037-B-C] Ardeshir H. Mama v. Flora Sassoon AIR 1928 PC 208 – relied on. Davis v. Thomas (1830) 39 ER 195; Shanmugam Pillai v. Annalakshmi Ammal AIR 1950 FC 38 – referred to. Case Law Reference: AIR 1963 SC 1182 relied on Para 13 AIR 1954 SC 345 relied on Para 19 (1998) 2 SCC 226 relied on Para 19 (2008) 8 SCC 287 relied on Para 19 AIR 1950 FC 38 referred to Paras 19, 21 AIR 1969 SC 405 relied on Para 19 AIR 1928 PC 208 relied on Para 20 (1830) 39 ER 195 referred to Para 21 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7471 of 2003. From the Judgment & Order dated 25.02.2003 of the High Court of Madhya Pradesh, Bench at Gwalior in Second Appeal No. 230 of 1995. Sushil Kumar Jain, Puneet Jain, Trishna (for Pratibha Jain) for the Appellant. Shiv Sagar Tiwari for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO.7471 OF 2003 Raj Kishore (Dead) By Lrs. …Appellants Versus Prem Singh & Ors. …Respondents JUDGMENT T.S. THAKUR, J. 1. This appeal by special appeal arises out of a judgment and order dated 25th February, 2003, passed by the High 2 Court … Continue reading

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