advocatemmmohan
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Quash – Private complaint – Ex-employees filed criminal complaint against the company on criminal charges – Magistrate took cognizance – petition for quash dismissed by High court – again filed the again dismissed – Apex court directed to pay the amounts of complainants and set aside the orders of magistrate and quashed the complaint = J.L. Soman & Ors. … Appellants Vs. State of Bihar & Anr. … Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41100
Quash – Private complaint – Ex-employees filed criminal complaint against the company on criminal charges – Magistrate took cognizance – petition for quash dismissed by High court – again filed the again dismissed – Apex court directed to pay the amounts of complainants and set aside the orders of magistrate and quashed the complaint = … Continue reading
Sec.138, 142 N.I.Act Sec.482 Cr.P.C. – Limitation – pending trial – petition for quash of complaint – cheque presented 25/10/08 – bounced 27/10/08 – issued notice 27/10/08 – no reply – again presented 10-11-08 – again bounced 10-11-08 – again issued notice 27-12-08 – filed complaint 07-01-09 – No bar to present the cheque several times with 6 / 3 months from the date of cheque – Limitation of 30 days starts from the date of information of cheque bounce – the complainant admitted in his complaint that cheque was bounced on 10-11-2008 – Complaint filed 07-01-2009 = beyond 30 days from the date of cheque bounce – though two witnesses were examined – is not a bar to quash the complaint – High court committed wrong – Apex court allowed the appeal and quashed the complaint = Kamlesh Kumar …..Appellant Vs. State of Bihar & Anr. ….Respondents = Published in / Cited in / Reported in judis.nic.in/supremecourt/filename=41067
Sec.138, 142 N.I.Act Sec.482 Cr.P.C. – Limitation – pending trial – petition for quash of complaint – cheque presented 25/10/08 – bounced 27/10/08 – issued notice 27/10/08 – no reply – again presented 10-11-08 – again bounced 10-11-08 – again issued notice 27-12-08 – filed complaint 07-01-09 – No bar to present the cheque several … Continue reading
Sec.138 ,139 and sec. 118 of N.I.Act – Burden of proof – when the complainant not able to say the date when the amount was given – when failed to produce source of income – when gave contradictory statement about filling of cheque whether by accused or by himself – when there is no pleading that cheque was filled with the consent of accused – mere lack of issuing a reply notice and mere non putting a suggestion that the cheque was a blank cheque are not countable points to over throw the positive admissions made by the complainant – Lower court rightly dismissed the complaint – High court wrongly with out assigning valid reasons convict the accused – Apex court set aside the high court orders = John K. Abraham …. Appellant VERSUS Simon C. Abraham & Another …. Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41045
Sec.138 ,139 and sec. 118 of N.I.Act – Burden of proof – when the complainant not able to say the date when the amount was given – when failed to produce source of income – when gave contradictory statement about filling of cheque whether by accused or by himself – when there is … Continue reading
Or. 47 rule 1 C.P.C. = Review of it’s own judgement basing on fresh documents & fresh thoughts – not correct = Or.1, rule 10 impleading a party with out asking for any relief against him is maintainable as the very purpose of impleading is only for having full and final settlement and to avoid multiple proceedings = N.ANANTHA REDDY Petitioner(s) VERSUS ANSHU KATHURIA & ORS. Respondent(s) = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41043
Or. 47 rule 1 C.P.C. = Review of it’s own judgement basing on fresh documents & fresh thoughts – not correct – Review of it’s judgement arose only in case of patent errors occurred in earlier judgement but not on fresh out look of the case – High court confirmed the order of lower court when … Continue reading
Jurisdiction of courts under Reg.Trademarks Act & Copy Rights Act = Original jurisdiction Sec. 20 of C.P.C., Or. 2 , rule 3 of C.P.C – where the cause of action arose , there the case has to be filed under Registration of Trademarks Act : Special Jurisdiction under sec.62(2) of Copy Rights Act – Confirming on the courts where the plaintiff resides = Clubbing of both causes of actions in one suit – is a composite suit – When it is a composite suit, the court where the defendants goods are not available , nor do the defendants carry on business and reside within the jurisdiction of this Hon’ble Court, that court holds no jurisdiction under Registration of Trademarks Act simply because the plaintiff is residing : but the same court holds jurisdiction under sec.62(2) of Copy right Act for copyright violation suit = M/s. Paragon Rubber Industries …Appellant VERSUS M/s. Pragathi Rubber Mills & Ors. …Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41036
Jurisdiction of courts under Reg.Trademarks Act & Copy Rights Act = Original jurisdiction Sec. 20 of C.P.C., Or. 2 , rule 3 of C.P.C – where the cause of action arose , there the case has to be filed under Registration of Trademarks Act : Special Jurisdiction under sec.62(2) of Copy Rights Act – Confirming on the … Continue reading
Indian Easements Act, 1882 – s.13(b) – Easement rights – Easement by grant – Suit for declaration of easement rights over `B’ schedule property of the plaint as a pathway to `A’ schedule property of the plaint – `A’ Schedule property had been allotted to plaintiff in terms of a settlement deed – `B’ Schedule pathway was situated within property under control and use of defendants – Held: Grant can be by implication as well – There was implied grant of `B’ schedule property as pathway, which can be inferred for the reason that no other pathway was provided to plaintiff for access to `A’ schedule property and there was also no objection from defendants to use of `B’ schedule property by plaintiff as pathway for number of years, at least up to the time, when alone cause of action for the suit arose – Plaintiff acquired right of easement in respect of `B’ schedule pathway by way of implied grant. = Sree Swayam Prakash Ashramam & Anr. …Appellants VERSUS G. Anandavally Amma & Ors. …Respondents = published in http://judis.nic.in/supremecourt/helddis.aspx
Indian Easements Act, 1882 – s.13(b) – Easement rights – Easement by grant – Suit for declaration of easement rights over `B’ schedule property of the plaint as a pathway to `A’ schedule property of the plaint – `A’ Schedule property had been allotted to plaintiff in terms of a settlement deed – `B’ Schedule … Continue reading
Fraud on party also void one = Fraudulently obtained a consent decree with in 3 days on illiterate women = kept quiet for long time and again filed another suit for injunction against the same women basing on earlier decree – where the fraud came to light – All lower courts went on routine manner with out analyzing the evidence – how the decree will be passed against one sharers with out adding co sharers and how the court pass a decree with out hearing the parties under or.10, rule 1 C.P.C. – which clearly discloses a fraud = Allowed the civil appeal and set aside all decrees and judgement of lower courts = “Fraud generally lights a candle for justice to get a look at it; and rogue’s pen indites the warrant for his own arrest.” 26. Ex consequenti, the appeal is allowed and the judgment and decree of the High Court in the Second Appeal as well as the judgments and decrees of the courts below are hereby set aside and as a natural corollary the judgment and decree dated 27.11.1973 is also set aside. There shall be no order as to costs. ““Fraud-avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” Smt. Badami (Deceased) By her L.R. ….. Appellant Versus Bhali … Respondent = published in http://judis.nic.in/supremecourt/helddis.aspx
SUIT: Fraudulent suit – Suits for permanent injunction and possession – Based on an earlier compromise decree – Held: All facets of fraud get attracted to the case at hand – A rustic and illiterate woman is taken to court by a relation on the plea of creation of a lease deed and magically in … Continue reading
s.149 CPC = No document which is chargeable with a fee under the Act shall be acted on by any court or any public office unless the appropriate fee payable under the Act in respect of such a document is paid – When a document on which court fee is payable is received in any court or public office, though the whole or any part of the appropriate court fee payable on such document has not been paid, either because of a mistake or inadvertence of the Court, the Court, in its discretion, may allow the payment of the deficit court fee within such time as may be fixed – Upon such payment, such document “shall have the same force and effect” as if the court fee had been paid in the first instance – Indisputably, the expression “document” takes within its sweep a plaint contemplated under the Code of Civil Procedure – Court Fees Act, 1870. Judicial discretion: Exercise of – Scope – Held: It is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law – It must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation.= A. Nawab John & Ors. ….Appellants Versus V.N. Subramaniyam ….Respondent = published in http://judis.nic.in/supremecourt/helddis.aspx
Court Fees Act, 1870: Filing of plaint – Deficient court fee – Right of defendant to raise objection – Held: Question of court fee is a matter between the plaintiff and the Court – If the Court comes to the conclusion that the court fee paid in the lower court is not sufficient, … Continue reading
whether a suit filed seeking a declaration that a will and a sale deed are void, resulting their cancellation, will fall u/s. 7(iv-A) of the Court Fees Act, 1870, as amended by the U.P. Amendment Act (Act XIX of 1938) or Article 17(iii) of Schedule II of the Court Fees Act, 1870 for the purpose of valuation. = Shailendra Bhardwaj & Others .. Appellants Versus Chandra Pal & Another .. Respondents = Published in http://judis.nic.in/supremecourt/helddis.aspx
COURT FEES ACT, 1870: s.7(iv-A) and Articles 17(iii) as amended by U.P. Act, 19 of 1938 – Suit for declaration of a will and a sale deed as null and void and for cancellation thereof – Court fee payable – Held: The suit having been filed after death of testator, suit property covered … Continue reading
Sec.25,26 and 27 of Consumer Act = Builder failed to provide amenities , Club House etc., and made constructions against the rules of Municipal Nagara Palika – Deficiency in service – consent decree to pay interest on failure to full fill obligations – Executions filed – Appeal lies but not revision – On merits also the builder is at deficiency of service = M/s. Sunny Brooks -vs – Aparajitha Bhandary = published in http://164.100.72.12/ncdrcrep/judgement/0013111410493830RP386238762010.htm
Sec.25,26 and 27 of Consumer Act = Builder failed to provide amenities , Club House etc., and made constructions against the rules of Municipal Nagara Palika – Deficiency in service – consent decree to pay interest on failure to full fill obligations – Executions filed – Appeal lies but not revision – On merits also the builder is at deficiency of service = The State … Continue reading
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