PREPAREDNESS FOR NCLT VARIOUS LAWS A PROFESSIONAL
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PREPAREDNESS FOR NCLT VARIOUS LAWS A PROFESSIONAL MUST KNOW By: CS RAVI BHUSHAN KUMAR M.COM, LLB, FCS Practicing Company Secretary SR Associates, Noida Past Chairman, Noida Chapter The Institute of Company Secretaries of India, e-mail id:
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01
PREPAREDNESS FOR NCLT
VARIOUS LAWS A PROFESSIONAL MUST KNOW
By: CS RAVI BHUSHAN KUMAR
M.COM, LLB, FCS
Practicing Company Secretary
SR & Associates, Noida
Past Chairman, Noida Chapter
The Institute of Company Secretaries of India,
e-mail id: cs.ravibhushan@gmail.com
Contact No. 9990339200
www.csravibhushan.com<br>
VARIOUS LAWS A PROFESSIONAL MUST KNOW
By: CS RAVI BHUSHAN KUMAR
M.COM, LLB, FCS
Practicing Company Secretary
SR & Associates, Noida
Past Chairman, Noida Chapter
The Institute of Company Secretaries of India,
e-mail id: cs.ravibhushan@gmail.com
Contact No. 9990339200
www.csravibhushan.com<br>
02
Substantive Laws are those that define:-
Rights
Duties
Liabilities
Under civil laws &
Crime, and
Punishment
Under criminal law.
Example:
Indian Penal Code,
Law of contracts,
Law of property,
Specific relief Act. Etc. Company Law
IBC Procedural Laws are those that define:-
Procedure for application of Substantive Laws
Provide for method of application, appeal, etc.
Prescribe Forms, fees, and other documents
Examples:
Criminal Procedure Code, Evidence Act, Civil procedure Code, etc.<br>
Rights
Duties
Liabilities
Under civil laws &
Crime, and
Punishment
Under criminal law.
Example:
Indian Penal Code,
Law of contracts,
Law of property,
Specific relief Act. Etc. Company Law
IBC Procedural Laws are those that define:-
Procedure for application of Substantive Laws
Provide for method of application, appeal, etc.
Prescribe Forms, fees, and other documents
Examples:
Criminal Procedure Code, Evidence Act, Civil procedure Code, etc.<br>
03
Indian Evidence Act 1872(An introduction) MODERN PRE-BRITISH ERA:
During Muslim Rule in India.
There was no codified Law relating to Law of Evidence. There existed customs and usages as provided in Muslim Law on the basis of which the matters were decided.
Indian Evidence Act, 1872 was introduced by Britishers as first codified law of evidence Back Ground: Nature of law of evidence: It is not exhaustive in nature:
It does not include each and every thing
Indian Evidence is Lex Fori:
(law of the forum or court in which the case is tried). Whether a witness is competent or not, whether a certain matter requires to be proved by writing or not, whether a certain evidence proves a certain fact or not are all to be determined by the law of country where the question arises.
It is part of law of procedure :
Law of Evidence is procedural law. It does not effect rights and duties, its only provide a facility to the Court to arived justice.
It is retrospective in nature
It is an adjective law
The aggregate of rules of procedure or practice according to which the Substantive Law is administered Applicability : whole of India except the State of Jammu and Kashmir and all judicial proceedings in or before any Court, including Courts-martial, but not to affidavits presented to any Court Officer, and not to proceedings before an arbitrator. Other than Courts-martial convened under, the Army Act., the Naval Discipline Act ,the Air Force Act, Etc.<br>
During Muslim Rule in India.
There was no codified Law relating to Law of Evidence. There existed customs and usages as provided in Muslim Law on the basis of which the matters were decided.
Indian Evidence Act, 1872 was introduced by Britishers as first codified law of evidence Back Ground: Nature of law of evidence: It is not exhaustive in nature:
It does not include each and every thing
Indian Evidence is Lex Fori:
(law of the forum or court in which the case is tried). Whether a witness is competent or not, whether a certain matter requires to be proved by writing or not, whether a certain evidence proves a certain fact or not are all to be determined by the law of country where the question arises.
It is part of law of procedure :
Law of Evidence is procedural law. It does not effect rights and duties, its only provide a facility to the Court to arived justice.
It is retrospective in nature
It is an adjective law
The aggregate of rules of procedure or practice according to which the Substantive Law is administered Applicability : whole of India except the State of Jammu and Kashmir and all judicial proceedings in or before any Court, including Courts-martial, but not to affidavits presented to any Court Officer, and not to proceedings before an arbitrator. Other than Courts-martial convened under, the Army Act., the Naval Discipline Act ,the Air Force Act, Etc.<br>
04
Court (Section 3 of Evidence Act, 1872): Court includes all judges and magistrates and all persons except arbitrators, legally authorized to take evidence.<br>
05
Applicability of this Act on administrative and quasi Judicial proceedings: All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860), the Tribunal and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Section 228 of IPC: Intentional insult or interruption to public servant sitting in judicial proceeding.—Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both Section 193 of IPC: Section 424(4) of the Companies Act 2013: Using evidence known to be false.—Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence. Section 196 of IPC<br>
06
While Doing Administrative act:
The duty to act judicially is not too important in performance of an Administrative Act. The only responsibly while discharging an administrative function is to follow the Principles of Natural Justice unless the Statute especially prohibits so. In State of Orissa v. Binapani Dei, (1967) 2 SCR 625, the Hon’ble Supreme Court categorically stated that an Administrative Order which involves civil consequences must be made consistently with the Principles of Natural Justice. When act of officer shall be treated as quassi judicial act? Cooper v. Wilson, (1937) 2 KB 309, wherein it was held that:
“The definition of a quasi-judicial decision clearly suggests that there must be two or more contending parties and an outside authority to decide those disputes.” The Hon’ble Supreme Court in the case of Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222, contemplated two situations relating to quasi-judicial acts:
1. If there is a Statutory Authority that decides disputes between two parties who oppose each other, determines their respective rights and has a duty to act judicially, then decision of such an Authority is a Quasi-Judicial Act.
2. If there is a single party approaching a Statutory Authority that has the power to prejudicially affect that party and the contest is between the authority proposing to do the act and the party opposing it, then also the Final Determination of the Statutory Authority, if it acts judicially, will be Quasi-Judicial Act.<br>
The duty to act judicially is not too important in performance of an Administrative Act. The only responsibly while discharging an administrative function is to follow the Principles of Natural Justice unless the Statute especially prohibits so. In State of Orissa v. Binapani Dei, (1967) 2 SCR 625, the Hon’ble Supreme Court categorically stated that an Administrative Order which involves civil consequences must be made consistently with the Principles of Natural Justice. When act of officer shall be treated as quassi judicial act? Cooper v. Wilson, (1937) 2 KB 309, wherein it was held that:
“The definition of a quasi-judicial decision clearly suggests that there must be two or more contending parties and an outside authority to decide those disputes.” The Hon’ble Supreme Court in the case of Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222, contemplated two situations relating to quasi-judicial acts:
1. If there is a Statutory Authority that decides disputes between two parties who oppose each other, determines their respective rights and has a duty to act judicially, then decision of such an Authority is a Quasi-Judicial Act.
2. If there is a single party approaching a Statutory Authority that has the power to prejudicially affect that party and the contest is between the authority proposing to do the act and the party opposing it, then also the Final Determination of the Statutory Authority, if it acts judicially, will be Quasi-Judicial Act.<br>
07
The Powers of Administrative Body to exercise powers of civil court under Companies Act 2013: There are four places where Companies Act 2013 has given powers of Civil Court to the officers of MCA: Section 138(4)(b)
have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 ( 5 of 1908), while trying a suit, in respect of the following matters, namely:— (i) discovery and production of books of account and other documents, at such place and at such time as may be specified by the National Financial Reporting Authority; (ii) summoning and enforcing the attendance of persons and examining them on oath; (iii) inspection of any books, registers and other documents of any person referred to in clause (b) at any place; (iv) issuing commissions for examination of witnesses or documents;
Section 207(3) - Conduct of inspection and inquiry
Section 217(5) - Procedure, powers, etc., of inspectors.
Section 424 (2) – power of NCLT/NCLTA<br>
have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 ( 5 of 1908), while trying a suit, in respect of the following matters, namely:— (i) discovery and production of books of account and other documents, at such place and at such time as may be specified by the National Financial Reporting Authority; (ii) summoning and enforcing the attendance of persons and examining them on oath; (iii) inspection of any books, registers and other documents of any person referred to in clause (b) at any place; (iv) issuing commissions for examination of witnesses or documents;
Section 207(3) - Conduct of inspection and inquiry
Section 217(5) - Procedure, powers, etc., of inspectors.
Section 424 (2) – power of NCLT/NCLTA<br>
08
What is principal of Natural Justice?: These are the principal of Natural Justice which a administrative body must follow:
Principles of natural justice includes:
(a) Rule against bias: Bias may include:
(i) Personal Bias; (ii) Pecuniary Bias ; (iii) Subject-matter Bias; (iv) Departmental Bias; (v) Preconceived notion bias.
(b) Right to fair hearing includes:
(i) Right to know adverse evidence; (ii) Right to present case; (iii) Right to rebut evidence; (iv) Right to cross-examination and legal re presentation; (v) Right to reasoned decision, etc.
(c) Reasoned Decision
‘Bias’ means an operative prejudice, whether conscious or unconscious, in relation to a party or issue. This is the idea that the judge may well have “strong views" or “preconceived ideas" concerning the case before them. Wherever an administration action inflicts a civil consequence, principles of natural justice have to be followed. Some Practical Example: 1. The Division Bench of the Rajasthan High Court in the case of PGO Processor P Ltd Vs. CCE 2000(41) RLT 741 (Raj) has held that “ assessee has a right to be supplied with authenticated copies of documents relied upon in the Show Cause Notice. It was made very specifically clear that the opportunity given to inspect and to obtain photocopies is not enough.<br>
Principles of natural justice includes:
(a) Rule against bias: Bias may include:
(i) Personal Bias; (ii) Pecuniary Bias ; (iii) Subject-matter Bias; (iv) Departmental Bias; (v) Preconceived notion bias.
(b) Right to fair hearing includes:
(i) Right to know adverse evidence; (ii) Right to present case; (iii) Right to rebut evidence; (iv) Right to cross-examination and legal re presentation; (v) Right to reasoned decision, etc.
(c) Reasoned Decision
‘Bias’ means an operative prejudice, whether conscious or unconscious, in relation to a party or issue. This is the idea that the judge may well have “strong views" or “preconceived ideas" concerning the case before them. Wherever an administration action inflicts a civil consequence, principles of natural justice have to be followed. Some Practical Example: 1. The Division Bench of the Rajasthan High Court in the case of PGO Processor P Ltd Vs. CCE 2000(41) RLT 741 (Raj) has held that “ assessee has a right to be supplied with authenticated copies of documents relied upon in the Show Cause Notice. It was made very specifically clear that the opportunity given to inspect and to obtain photocopies is not enough.<br>
09
2. The Division Bench of the Bombay High Court in the case of Silicon Graphics System India (P) Ltd 2006(204) ELT 247 (Bom) has held that “ unrelied documents may not be relevant for department but may be relevant for affected party to prepare reply to the Show Cause Notice. Any request made for supply of those documents cannot be termed as “frivolous”. 3. The Hon’ble Supreme Court in the case of Kothari Filaments Ltd Vs. CCE 2009 RLR 112 (SC) has held that “ if an enquiring authorities make use of any document or documents then they should supply copies of those documents to the person accused or opponent or must allow inspection of the same, denial of which shall amount to violation of principle of natural justice. When the Appellant asks for opportunity of cross-examination of witnesses relied upon by the Department (even in reply to the show cause notice), such cross examination must be allowed and failure or refusal would be held to be violative of principle of natural justice. Laxman Export Ltd Vs. CCE 2002 (143) ELT 21 (SC). The Adjudicating Authority cannot call upon the noticee to disclose the reasons with explanations, dis-allowing cross-examination was held to be violation of the law of natural justice. CCE Vs. Amrutbhai Vasudebhai Patel 2003(156) ELT 222 (Tri). The CESTAT in the case of Rath Ispat Ltd Vs. CCE 2001(129) ELT 701 (Tri – Delhi) has held that “ officers connected with the investigation should be made available by the Department for the purpose of cross-examination. Likewise, the Expert who conducted the Test and whose report has been relied upon by the Department, must be made available for cross-examination. At the same time, if the Department is relying upon the same “ Test Report”, then the assessee has right of “ Re-Testing”.<br>
10
Whether contempt of Court proceedings are Judicial Proceedings ? Brijnandan Sinha V. Jyothi Naryan AIR 1956 SC 66:
Though the Proceedings of Contempt of Court are Judicial in Character but they are outside the scope of Indian Evidence Act. Affidavit: Law of evidence does not apply to affidavit subject to one exception : Order 19 Rule 1 of Cp.C:
Power to Order any point to be proved by affidavit.- Any court may at any time for sufficient reason Order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:
Provided that where it appears to the court that either party bona fide desires the production of a witness for cross examination, and that such witness can be produced, an Order shall not be made authorizing the evidence of such witness to be given by affidavit. Sheoraj Singh V. A. P Batra AIR 1955 ALL638
Evidence Act does not apply to Affidavits, If facts is allowed to be proved by affidavit, it may be proved by affidavit, notwithstanding a provision is provided in Evidence Act. Evidentiary Value of Affidavit:<br>
Though the Proceedings of Contempt of Court are Judicial in Character but they are outside the scope of Indian Evidence Act. Affidavit: Law of evidence does not apply to affidavit subject to one exception : Order 19 Rule 1 of Cp.C:
Power to Order any point to be proved by affidavit.- Any court may at any time for sufficient reason Order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:
Provided that where it appears to the court that either party bona fide desires the production of a witness for cross examination, and that such witness can be produced, an Order shall not be made authorizing the evidence of such witness to be given by affidavit. Sheoraj Singh V. A. P Batra AIR 1955 ALL638
Evidence Act does not apply to Affidavits, If facts is allowed to be proved by affidavit, it may be proved by affidavit, notwithstanding a provision is provided in Evidence Act. Evidentiary Value of Affidavit:<br>
11
Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of universal application. Under that section, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Amba Lal Vs. Union of India MANU/SC/0090/1960<br>
12
Pleading: (Order VI Rule 1 of C.P.C)
Pleading shall mean plaint or written statement.
Plaint means statement of claim in which plaintiff set out his cause of action with all necessary particulars, and written statement is a defense in which defendant deals with every material facts alleged by the plaintiff in his statement of claim, and also states any facts which tell in his favor.
Object of pleading: to enable the party to know, before the trial, the real point to be discussed and decide. Code of Civil Procedure<br>
Pleading shall mean plaint or written statement.
Plaint means statement of claim in which plaintiff set out his cause of action with all necessary particulars, and written statement is a defense in which defendant deals with every material facts alleged by the plaintiff in his statement of claim, and also states any facts which tell in his favor.
Object of pleading: to enable the party to know, before the trial, the real point to be discussed and decide. Code of Civil Procedure<br>
13
Fundamental Rules of pleading : 1. Every pleading must state the facts and not the law
2. Every pleading state all material facts
It is well settled rule that if a party omits to plead some material fact, he will not be allowed to give evidence of that fact at the trial.
Facta probanda ought to be stated in the pleading while facta probantia should not be stated
Particulars are the part of material facts in case of misrepresentation, fraud, breach of trust, willful default , undue influence.
It was held over and again that fraud, undue influence, etc being an objective fact and not being a subjective process, known to the parties complaining particulars thereof must be given. Court do not take any notice of general allegation of fraud unless the particulars are also given in the pleading i.e nature of fraud, was, how it was committed, by whom it was committed and when it was committed.
3. Every pleading must state the facts on which the party pleading relies and not the evidence by which they are to be proved.
Pleading, not to embarrassing to the opposite party, should state those facts which will put him on his guard and tell him what he will have to meet when the case comes on for trial.<br>
2. Every pleading state all material facts
It is well settled rule that if a party omits to plead some material fact, he will not be allowed to give evidence of that fact at the trial.
Facta probanda ought to be stated in the pleading while facta probantia should not be stated
Particulars are the part of material facts in case of misrepresentation, fraud, breach of trust, willful default , undue influence.
It was held over and again that fraud, undue influence, etc being an objective fact and not being a subjective process, known to the parties complaining particulars thereof must be given. Court do not take any notice of general allegation of fraud unless the particulars are also given in the pleading i.e nature of fraud, was, how it was committed, by whom it was committed and when it was committed.
3. Every pleading must state the facts on which the party pleading relies and not the evidence by which they are to be proved.
Pleading, not to embarrassing to the opposite party, should state those facts which will put him on his guard and tell him what he will have to meet when the case comes on for trial.<br>
14
Necessary Party, Proper Party Proforma party Necessary Party:
1. A necessary party is one whose presence is indispensable to the constitution of the suit, against whom no effective order can be passed.
ADVERTISEMENTS:
2. In absence of necessary party, no decree can be passed.
3. Example: In a suit for partition, all sharers are necessary parties.
Proper Party:
1. A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the suit.
2. In the absence of a proper party a decree can be passed.
Proforma Party:
It is a defendant in a suit against whom no relief is claimed by the plaintiff.<br>
1. A necessary party is one whose presence is indispensable to the constitution of the suit, against whom no effective order can be passed.
ADVERTISEMENTS:
2. In absence of necessary party, no decree can be passed.
3. Example: In a suit for partition, all sharers are necessary parties.
Proper Party:
1. A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the suit.
2. In the absence of a proper party a decree can be passed.
Proforma Party:
It is a defendant in a suit against whom no relief is claimed by the plaintiff.<br>
15
THE LIMITATION ACT, 1963: Nature of law: the rule of limitation is a rule of procedure, a branch of adjective law.(law which affects the remedy and procedure) The intention of law of limitation is not to create a right where there is none, nor to extinguish a right where there is one, but to interpose a bar after a certain period to enforce an existing right.
Limitation & Prescription: Limitation limits the period after which a suit, apeal or other proceedings cannot be maintained where as prescription prescribed a period at expiry of which substantive or primary rights is acquired or extinguished. Prescription not only bars the remedy but also extinguishes the right of action.<br>
Limitation & Prescription: Limitation limits the period after which a suit, apeal or other proceedings cannot be maintained where as prescription prescribed a period at expiry of which substantive or primary rights is acquired or extinguished. Prescription not only bars the remedy but also extinguishes the right of action.<br>
16
Sec 3: Every suit instituted, appeal preferred, and application made after the prescribed time limit shall be dismissed although limitation has not been set up as a defence.
Query – A suit is held in a court and a decree is passed in favour of the plaintiff. No objection on the score of limitation has been raised by the defendant or any one else. Can the plea of limitation be raised for the first time
In the first appeal
In the second appeal
If so, under what condition and by whom?
Answer: This section is pre-emptory and the duty of the Courts is to notice the Act and give effect to it even though limitation is not referred to in the pleadings. The Court is bound to take notice of point of limitation if or the facts in the plaint, it patently appears to it that the suit is barred by time, even if the defence did not take up the plea or the pleas abandoned. But if the fats are not apparent of the fact of the record or if the question of limitation involves fresh issues of facts, the Court is not bound to speculate upon possible question that may arise in a suit and as such may not allow it.
A question of limitation can be raised in appeal though the same was not raised before the Trial Court (Hanutaram Vs. Kumbharam). But where the suit is not on the face of it obviously barred by limitation, the Appellate Court does not exercise a wise discretion in taking up the question of limitation on its own initiative.<br>
Query – A suit is held in a court and a decree is passed in favour of the plaintiff. No objection on the score of limitation has been raised by the defendant or any one else. Can the plea of limitation be raised for the first time
In the first appeal
In the second appeal
If so, under what condition and by whom?
Answer: This section is pre-emptory and the duty of the Courts is to notice the Act and give effect to it even though limitation is not referred to in the pleadings. The Court is bound to take notice of point of limitation if or the facts in the plaint, it patently appears to it that the suit is barred by time, even if the defence did not take up the plea or the pleas abandoned. But if the fats are not apparent of the fact of the record or if the question of limitation involves fresh issues of facts, the Court is not bound to speculate upon possible question that may arise in a suit and as such may not allow it.
A question of limitation can be raised in appeal though the same was not raised before the Trial Court (Hanutaram Vs. Kumbharam). But where the suit is not on the face of it obviously barred by limitation, the Appellate Court does not exercise a wise discretion in taking up the question of limitation on its own initiative.<br>
17
Query 2 Limitation for filing suit by A expires on 30th September 1998, which is half-holiday. The Court remains closed on 1st and 2ndOctober, 1998 due to Gandhiji`s birthday. Suit was filed on 3rd October 1998 by A to which defendant pleads that it was time-barred. Answer : It was held in Surendra Saurvavini that if the law or a Court directs a thing to be done within a period fixed by it and it is impossible of performance on the last day fixed for no fault of the party required or directed to do the act, it will be recognised as properly done, if it is done on the day next day, it is possible of performance.
Section 4 provides that where the period of limitation prescribed for any suit, application expires on a day when he Court is partly or wholly closed, the suit, appeal or application may be filed on the day when the Court reopens. Hence, the suit filed by A is not time-barred and the plea of defendant cannot be sustained.<br>
Section 4 provides that where the period of limitation prescribed for any suit, application expires on a day when he Court is partly or wholly closed, the suit, appeal or application may be filed on the day when the Court reopens. Hence, the suit filed by A is not time-barred and the plea of defendant cannot be sustained.<br>
18
Section 5: Any appeal or any application, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.— The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. Answer : Extension of time under Sec 5 cannot be claimed as matter of right. The power of the Court to grant this concession. The discretion must, however, be exercised in a judicial and not arbitrary manner. There must be sufficient cause shown. [Kaura Mal Vs. Mathura Dass, AIR, (1959) Pun. 645] Query: Extension under Section 5 can be claimed as right?<br>
19
Query: Had it not been for serious accident on the way A would have reached the civil courts well in time filing on appeal and also for instituting a suit for recovery of Rs 10,000, it was the last day of limitation for appeal as was for the suit. A who had lost consciousnesses immediately after he injuries, succumbed to them the same evening? He left a five year’s son, the only legal representative. You are approached on behalf of the son the next day when both the appeal and suit have become time barred. Advise Answer: Inability to reach the Court and to instruct the counsel due to unconsciousness and subsequent death are sufficient cause for the appeal to be admitted because the accident was serious and fatal. But in case of suit, extension cannot be obtained because Section 5 does not apply to suit. Query Two brothers, A major and B minor, were members of an undivided Hindu family of which A was the manager. After A`s death and on attaining majority. B sues for recover a debt advanced out of the family funds which had become due in A`s lifetime claiming extension of time on the ground of his minority. Is B entitled to any extension? Ans: B is not entitled to any extension. The cause of action arose in A`s lifetime. As a manager he was entitled to give a valid discharge on behalf of all members of the family. Hence the minority of B does not extend the period of limitation.<br>
20
The Hon’ble Supreme court in Manoharan Vs. Sivarajan and Ors. MANU/SC/1192/2013 : (2014) 4SCC 163 held that the Courts while deciding the application under Section 5 of the limitation act should not go the merits of the case but the grounds set out in the application seeking condonation of delay to be weighed and judged. The Hon’ble Supreme Court in N.Balakrishnan Vs. M. Krishnamurthy 2008(228) ELT 162(SC) held that the Under Section 5 of the Limitation Act , for condonation of delay , the length of the delay is immaterial whereas the explanation or the reason for such delay is of importance.<br>
21
What constitute sufficient cause? Following are some of the instances where delay may be condoned:
Subsequent changes in law
Mistake of counsel – A bona fide mistake of computation of limitation period ofr appeal [Punjabi University Vs. Acharya Swamy Ganesh AIR (1972) SC 1973]
Illness of party
Party being a woman or pardanashin lady
Minority if sufficient
Poverty or lack of funds
Party being a government servant.
Illiterate of ignorance.
Conflicting legal advice resulting in delay.
Absence on military duty [Hirayanga Vs Nui, AIR (1959) Ass. 7]<br>
Subsequent changes in law
Mistake of counsel – A bona fide mistake of computation of limitation period ofr appeal [Punjabi University Vs. Acharya Swamy Ganesh AIR (1972) SC 1973]
Illness of party
Party being a woman or pardanashin lady
Minority if sufficient
Poverty or lack of funds
Party being a government servant.
Illiterate of ignorance.
Conflicting legal advice resulting in delay.
Absence on military duty [Hirayanga Vs Nui, AIR (1959) Ass. 7]<br>
22
B) Section 14 of Limitation Act:
Where the party has been pursuing the matter before a wrong court diligently and in good faith, the period undergone in the trial before the wrong court, is liable to be condoned by the competent court before whom the petition has been filed subsequently.<br>
Where the party has been pursuing the matter before a wrong court diligently and in good faith, the period undergone in the trial before the wrong court, is liable to be condoned by the competent court before whom the petition has been filed subsequently.<br>
23
In Mohinder Prakash v. DLF Commercial Developers Ltd., MANU/DE/6320/2012 it was held as under:
“The plaintiff must establish that while pursuing a wrong remedy there was an element of mistake in the remedy or the selection of the wrong forum. Besides establishing such fact it is necessary that he must also establish that the mistake was committed with due diligence and good faith. Good faith has been defined as “exercise of due care and attention.” Therefore, the time is excluded before forum of inappropriate jurisdiction and delay condoned. “<br>
“The plaintiff must establish that while pursuing a wrong remedy there was an element of mistake in the remedy or the selection of the wrong forum. Besides establishing such fact it is necessary that he must also establish that the mistake was committed with due diligence and good faith. Good faith has been defined as “exercise of due care and attention.” Therefore, the time is excluded before forum of inappropriate jurisdiction and delay condoned. “<br>
24
The Hon’ble Supreme Court in the case of Union of India Vs. West Coast paper Mills Ltd MANU/SC/0191/2004 has observed as under:-
“However, Section 14 of the Limitation Act is wide in application, in as much as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to the cases where the prior proceedings have failed on account of other causes of the like nature.”<br>
“However, Section 14 of the Limitation Act is wide in application, in as much as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to the cases where the prior proceedings have failed on account of other causes of the like nature.”<br>
25
The Hon’ble Supreme Court in MP Steel Corporation v. CCE, MANU/SC/0484/2015 has held that the Quasi-Judicial Authority including Tribunal (though strictly they are not Court in legal sense) can condone the delay which, occur due to pendency of the matter before wrong Courts/Authority.<br>
26
C): Section 18 of Limitation Act:
Where before the expiration of the prescribed period of for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgement is to signed.<br>
Where before the expiration of the prescribed period of for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgement is to signed.<br>
27
Where no period of limitation is prescribed:
The Full Bench of Rajasthan High Court in Chiman Lal v. State of Rajasthan and Ors. MANU/RH/0180/2000 : 2000 (2) RLR 39, had held that when no period of limitation is provided then it has to be exercised within a reasonable time and that will depend upon the facts and circumstances of each case like:
when there is a fraud played by the parties;
the orders are obtained by misrepresentation or collusion with public officers by the private parties;
orders are against the public interest;<br>
The Full Bench of Rajasthan High Court in Chiman Lal v. State of Rajasthan and Ors. MANU/RH/0180/2000 : 2000 (2) RLR 39, had held that when no period of limitation is provided then it has to be exercised within a reasonable time and that will depend upon the facts and circumstances of each case like:
when there is a fraud played by the parties;
the orders are obtained by misrepresentation or collusion with public officers by the private parties;
orders are against the public interest;<br>
28
the orders are passed by the authorities who have no jurisdiction;
the orders are passed in clear violation of rules or the provisions of the Act by the authorities;
and void orders or the orders are void ab initio being against the public policy or otherwise.<br>
the orders are passed in clear violation of rules or the provisions of the Act by the authorities;
and void orders or the orders are void ab initio being against the public policy or otherwise.<br>
29
Section 19 of Limitation Act, 1963 Section 19 says that before the expiry of limitation, in case the debtor or his agent makes part payment of the amount due, then the period of limitation shall be counted from the date of such part payment.
In M/s Naraingarh Suger Mills Ltd. v. Krishna Malhotra, MANU/DE/1447/2012 it was held as under:
“The limitation period for the determination of the debt partly paid commences from the day of last payment and suit for the recovery of the part amount was held to be in limitation.”<br>
In M/s Naraingarh Suger Mills Ltd. v. Krishna Malhotra, MANU/DE/1447/2012 it was held as under:
“The limitation period for the determination of the debt partly paid commences from the day of last payment and suit for the recovery of the part amount was held to be in limitation.”<br>
30
In Sanjeev Chopra v. All Wear Clothing (India) P. Ltd., MANU/DE/0664/2012 , it was observed as under:
“In case a debtor makes the part payment of a debt or of interest before the expiration of the prescribed period of limitation, fresh period of limitation shall commence from the period when such payment is made.”<br>
“In case a debtor makes the part payment of a debt or of interest before the expiration of the prescribed period of limitation, fresh period of limitation shall commence from the period when such payment is made.”<br>
31
c): Article 113 of Limitation Act, 1963:
Any suit for which no period of limitation is provided elsewhere in this Schedule – A period of three years from the date of accrual of cause of action. In IFCI Venture Capital Funds Ltd. v. Santosh Khosla, MANU/DE/1078/2012 it was observed as under:
“The limitation period for the recovery of loan amount was held to be commenced from the date of default and not from the date of grant of loan.”<br>
Any suit for which no period of limitation is provided elsewhere in this Schedule – A period of three years from the date of accrual of cause of action. In IFCI Venture Capital Funds Ltd. v. Santosh Khosla, MANU/DE/1078/2012 it was observed as under:
“The limitation period for the recovery of loan amount was held to be commenced from the date of default and not from the date of grant of loan.”<br>
32
In Sineximco Pte Ltd. v. Dinesh International Ltd., MANU/DE/4261/2012 it was held as under:
“In case of suits based upon a bill of exchange payable by installments the right to sue/ cause of action would accrue/ arise on each default by the payee of the bill of the exchange and a fresh cause of action would accrue on each default unless the parties to the agreement are satisfied that the whole of the amount shall become due in case of default. “<br>
“In case of suits based upon a bill of exchange payable by installments the right to sue/ cause of action would accrue/ arise on each default by the payee of the bill of the exchange and a fresh cause of action would accrue on each default unless the parties to the agreement are satisfied that the whole of the amount shall become due in case of default. “<br>
33
The Delhi High Court in the case of Punjab National Bank Vs. BSES Rajdhani Power Limited MANU/DE/3730/2015 has observed as under:-
“In civil law, a person's right to recover money on account of mistake would be a period of three years from discovery of the mistake. In view of Article 113 of the Schedule of the Limitation Act and which is a residuary article for a suit which is not covered under any of the preceding articles of the Schedule of the Limitation Act.”<br>
“In civil law, a person's right to recover money on account of mistake would be a period of three years from discovery of the mistake. In view of Article 113 of the Schedule of the Limitation Act and which is a residuary article for a suit which is not covered under any of the preceding articles of the Schedule of the Limitation Act.”<br>
34
INDIAN CONTRACT ACT, 1872
Section 10: All agreements are contracts if:-
a) Made by free consent of parties;
b)Made by the parties competent to contract;
c) For lawful consideration;
d) For a lawful object;<br>
Section 10: All agreements are contracts if:-
a) Made by free consent of parties;
b)Made by the parties competent to contract;
c) For lawful consideration;
d) For a lawful object;<br>
35
Section 15 of Indian Contract Act, 1872 : Coercion
The definition of Coercion is reproduced as under:
“the committing or threatening to commit any act forbidden by the Indian Penal Code, or unlawful detaining or threatening to detain, any property to the prejudice of any person whatever with the intention of causing any person to enter into an agreement”.<br>
The definition of Coercion is reproduced as under:
“the committing or threatening to commit any act forbidden by the Indian Penal Code, or unlawful detaining or threatening to detain, any property to the prejudice of any person whatever with the intention of causing any person to enter into an agreement”.<br>
36
Section 16 of Indian Contract Act, 1872 : Undue Influence
Under Section 16 of the Indian Contract Act, 1872, a contract is said to be produced by undue influence “where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other”.
The Settlement Deed cannot be cancelled unless either one of the elements of fraud, misrepresentation, undue influence or coercion is present.<br>
Under Section 16 of the Indian Contract Act, 1872, a contract is said to be produced by undue influence “where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other”.
The Settlement Deed cannot be cancelled unless either one of the elements of fraud, misrepresentation, undue influence or coercion is present.<br>
37
Section 17 of Contract Act ,1872: Fraud
“Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-
i) the suggestion of a fact, of that which is not true,
ii)the active concealment of a fact by one having Knowledge or belief of the fact;<br>
“Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-
i) the suggestion of a fact, of that which is not true,
ii)the active concealment of a fact by one having Knowledge or belief of the fact;<br>
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iii) a promise made without any intention of performing it
iv) any other act fitted to deceive;
v) any such act or omission as the law specially declares to be fraud:<br>
iv) any other act fitted to deceive;
v) any such act or omission as the law specially declares to be fraud:<br>
39
SPECIES OF FRAUD : HOW SUPREME COURT DEFINED
a) The Hon’ble Supreme Court in the case of Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. (MANU/SC/0495/2005 : JT 2005 (7) SC 530) dealt with effect of fraud.
Fraud is proved when it is shown that a false representation has been made
(i) knowingly, or
(ii) without belief in its truth, or
(iii) recklessly, careless whether it be true or false'.<br>
a) The Hon’ble Supreme Court in the case of Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. (MANU/SC/0495/2005 : JT 2005 (7) SC 530) dealt with effect of fraud.
Fraud is proved when it is shown that a false representation has been made
(i) knowingly, or
(ii) without belief in its truth, or
(iii) recklessly, careless whether it be true or false'.<br>
40
b) Suppression of a material document would also amount to a fraud on the court. ( Gowrishankar v. Joshi Amba Shankar Family Trust (MANU/SC/0555/1996 : 1996 (3) SCC 310).<br>
41
The Supreme Court in the case of Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd., MANU/SC/0657/1996 : AIR 1996 SC 2592 has laid down that the judiciary in India possesses inherent power to recall its judgment or order if it is obtained by fraud on Court and the above principles will also apply to statutory Tribunal.<br>
42
SECTION 25 of Indian Contract Act, 1872:
An Agreement without consideration is void unless an agreement is made out of natural love and affection;
The Supreme Court in the case of John Tinson & Co. P. Ltd. v. Surjeet Malhan MANU/SC/0331/1997 has held there should be consensus ad idem for a concluded contract and it is seen that Section 25(1) of the Contract Act contemplates that when a transfer is without consideration, it is a void contract.<br>
An Agreement without consideration is void unless an agreement is made out of natural love and affection;
The Supreme Court in the case of John Tinson & Co. P. Ltd. v. Surjeet Malhan MANU/SC/0331/1997 has held there should be consensus ad idem for a concluded contract and it is seen that Section 25(1) of the Contract Act contemplates that when a transfer is without consideration, it is a void contract.<br>
43
The Supreme Court in Manna Lal Khetan Vs. Kedar Nath Khetan MANU/SC/0060/1976 has observed as under:-
It is well established that a contract which involves in its fulfillment the doing of an act prohibited by statute is void. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. What is done in contravention of the provisions of an Act of the Legislature cannot be made the subject of an action.
(The case deals with transfer of shares which stood attached under orders of Court – SC held that Shares under attachment cannot be transferred ).<br>
It is well established that a contract which involves in its fulfillment the doing of an act prohibited by statute is void. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. What is done in contravention of the provisions of an Act of the Legislature cannot be made the subject of an action.
(The case deals with transfer of shares which stood attached under orders of Court – SC held that Shares under attachment cannot be transferred ).<br>
44
SALE OF GOODS ACT, 1930:
Section 45: The seller of goods is deemed to be an unpaid seller within the meaning of this Act (a) When the whole of the price has not been paid or tendered.
The Rajasthan High Court in the case of Samnath India Exports Vs. Shanti Lal Jain MANU./RH/1688/2013 has observed as under:
The Sale of Goods Act, 1930 covers all issues relating to sale of goods. Section 55(1) provides that "where under a contract of sale the property in the goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may sue him for the price of the goods."<br>
Section 45: The seller of goods is deemed to be an unpaid seller within the meaning of this Act (a) When the whole of the price has not been paid or tendered.
The Rajasthan High Court in the case of Samnath India Exports Vs. Shanti Lal Jain MANU./RH/1688/2013 has observed as under:
The Sale of Goods Act, 1930 covers all issues relating to sale of goods. Section 55(1) provides that "where under a contract of sale the property in the goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may sue him for the price of the goods."<br>
45
(II)How Power Of Attorney to be Executed: Section 85 of Indian Evidence Act, 1872:
If the Power of Attorney is not executed in accordance with law, then no power has been validly conferred on the Attorney and any petition is liable to be dismissed on this short ground alone.<br>
If the Power of Attorney is not executed in accordance with law, then no power has been validly conferred on the Attorney and any petition is liable to be dismissed on this short ground alone.<br>
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REQUISITES OF VALID POWER OF ATTORNEY.
a): Board Resolution in a validly convened Board Meeting
b): The date of affixation of Common Seal and date of attestation by Notary Public should match;
c): Affixation of Common Seal (now optional under Companies Act, 2013)<br>
a): Board Resolution in a validly convened Board Meeting
b): The date of affixation of Common Seal and date of attestation by Notary Public should match;
c): Affixation of Common Seal (now optional under Companies Act, 2013)<br>
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d): The Power of Attorney must be on Stamp Paper of requisite value as per rules of State Stamp Act;
e): There must be notorial stamp affixed during attestation.
i)Electric Construction & Equipment Co. Ltd. v. Jagjit Works, 1984 RLR 549 DHC.
ii)Syndicate Bank v. M/s. S.A. Trading Corporation & Others, 1990 (3) Delhi Lawyer 356 DHC.<br>
e): There must be notorial stamp affixed during attestation.
i)Electric Construction & Equipment Co. Ltd. v. Jagjit Works, 1984 RLR 549 DHC.
ii)Syndicate Bank v. M/s. S.A. Trading Corporation & Others, 1990 (3) Delhi Lawyer 356 DHC.<br>
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CODE OF CIVIL PROCEDURE, 1908:
Section 151 of CPC: Inherent Powers of Court = Regulation 44 of CLB Regulations, 1991 (now Rule 11 of NCLT Rules, 2016)
The Hon’ble Supreme Court in the case of Vinod Seth Vs. Devinder Bajaj MANU/SC/0424/2010 has observed as under:-
“ Section 151 is intended to apply where the Code does not cover any particular procedural aspect, and interests of justice require the exercise of power to cover a particular situation. It is a procedural provision saving the inherent powers of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code.”<br>
Section 151 of CPC: Inherent Powers of Court = Regulation 44 of CLB Regulations, 1991 (now Rule 11 of NCLT Rules, 2016)
The Hon’ble Supreme Court in the case of Vinod Seth Vs. Devinder Bajaj MANU/SC/0424/2010 has observed as under:-
“ Section 151 is intended to apply where the Code does not cover any particular procedural aspect, and interests of justice require the exercise of power to cover a particular situation. It is a procedural provision saving the inherent powers of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code.”<br>
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In the very recent verdict of K.K. Velusamy v. N. Palaanisamy, (2011) 11 SCC 275 the Hon’ble Supreme Court upheld that Section 151 of the Code recognizes the discretionary power inherited by the every Court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’.<br>
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HOW PETITION TO BE DRAFTED:
ORDER 6 RULE 1 & 2 CPC.
Order 6 Rule 2: Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be, but no evidence by which they are to be proved.
“In the absence of any concise statement of material facts, the mere raising of a plea of tenancy is not enough. D H Deshpande Vs. Janardhan Kashinath AIR 1999 SC 1464.<br>
ORDER 6 RULE 1 & 2 CPC.
Order 6 Rule 2: Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be, but no evidence by which they are to be proved.
“In the absence of any concise statement of material facts, the mere raising of a plea of tenancy is not enough. D H Deshpande Vs. Janardhan Kashinath AIR 1999 SC 1464.<br>
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AMENDMENTS OF PLEADINGS –
ORDER 6 RULE 17 CPC
The power to grant amendment of pleadings is intended to serve the ends of justice and is not governed by any narrow or technical limitations. Reliance was placed on the case law reported at MANU/SC/0016/1969 : AIR 1969 SC 1267<br>
ORDER 6 RULE 17 CPC
The power to grant amendment of pleadings is intended to serve the ends of justice and is not governed by any narrow or technical limitations. Reliance was placed on the case law reported at MANU/SC/0016/1969 : AIR 1969 SC 1267<br>
52
The Supreme Court in Ganesh Trading Co. v. Moji Ram , MANU/SC/0018/1978: AIR 1978 SC 484, while dealing with the amendments of pleadings, has observed as under:
“Even very defective pleadings may be permitted to be cured so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional court fee, which may be payable or of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should ordinarily refuse prayers for amendments of pleading.”<br>
“Even very defective pleadings may be permitted to be cured so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional court fee, which may be payable or of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should ordinarily refuse prayers for amendments of pleading.”<br>
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AMENDMENT PLEADINGS
Even admission can be withdrawn:
MANU/UP/0746/2004, MANU/SC/1017/1995 (para 4), MANU/PH/0715/2005 (para 11) and
MANU/SC/0019/1983 (para 3).<br>
Even admission can be withdrawn:
MANU/UP/0746/2004, MANU/SC/1017/1995 (para 4), MANU/PH/0715/2005 (para 11) and
MANU/SC/0019/1983 (para 3).<br>
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Signing of pleadings As per provisions of Rule 6 CPC, the last page of the petition/ written statement/replication/rejoinder are required to be signed by the parties and also by their pleader. All pleadings are required to be supported by an affidavit. The affidavit can be given by the Managing Director, Director or Company Secretary or other officer duly authorized by either Board Resolution or Power of Attorney. The affidavit should be on stamp paper of the value as prescribed under the State Stamp Act of the State where the affidavit is executed. The affidavit is required to be notarized either by a Notary Public or by Oath Commissioner.<br>
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The date of the affidavit shall always be subsequent to the date of petition or of the same date. The date of affidavit can never be prior to the date when the petition is ready.<br>
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Amendment barred by law – Still Allowable.
In Ragu Thilak D. John v. S. Rayappan And Others - MANU/SC/0057/2001 : (2001) 2 SCC 472, the Supreme Court held that if the relief sought by way of amendment would be barred by the law of limitation, yet the amendment would still be allowable and the disputed matter made the subject-matter of an issue.<br>
In Ragu Thilak D. John v. S. Rayappan And Others - MANU/SC/0057/2001 : (2001) 2 SCC 472, the Supreme Court held that if the relief sought by way of amendment would be barred by the law of limitation, yet the amendment would still be allowable and the disputed matter made the subject-matter of an issue.<br>
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In Pankaja And Another v. Yellappa (Dead) By LRs And Others - MANU/SC/0590/2004 : (2004) 6 SCC 415, the Supreme Court held that even where the relief sought to be added by amendment is allegedly barred by limitation, there is no absolute rule that amendment in such a case should not be allowed and that an amendment subserving the ultimate cause of justice and avoiding further litigation should be allowed.<br>
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HOW TO DRAFT WRITTEN STATEMENT/ REPLY
ORDER 8 RULE 5 CPC
Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendants, shall be taken to be admitted.<br>
ORDER 8 RULE 5 CPC
Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendants, shall be taken to be admitted.<br>
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Denial to be specific:
It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Sulekha v. Ashok Kumar. MANU/UP/0389/2016.<br>
It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Sulekha v. Ashok Kumar. MANU/UP/0389/2016.<br>
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The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact; he must not do so evasively, but answer the point of substance. If his denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.
Badat & Co. v. East India Trading Co., AIR 1964 SC 538<br>
Badat & Co. v. East India Trading Co., AIR 1964 SC 538<br>
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In Mahanagar Telephone Limited v. Suman Sharma, 2011(1) AD (Delhi) 331 it was observed as under: “Suit by the company and instituted by secretary – Suit was instituted and filed by the secretary who was a principal officer of the appellant company. The suit was instituted in terms of Order 29 and Rule 1 of CPC. Its dismissal was held to be unjustified and liable to be set aside.” ORDER 29 RULE 1 CPC – Authorisation to file legal proceedings before Court/tribunal<br>
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The Supreme Court in the case of State Bank of Travancore Vs. Kingston Computers (P) Ltd. MANU/SC/0280/2011 has observed as under:
“Because the Respondent had not produced any evidence to prove that Shri Ashok K. Shukla was appointed as a Director of the company and a resolution passed by the Board of Directors of the company to file suit against the Appellant and authorised Shri Ashok K. Shukla to do so”.<br>
“Because the Respondent had not produced any evidence to prove that Shri Ashok K. Shukla was appointed as a Director of the company and a resolution passed by the Board of Directors of the company to file suit against the Appellant and authorised Shri Ashok K. Shukla to do so”.<br>
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The letter of authority issued by Shri Raj K. Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K. Shukla to authorise another person to file suit on behalf of the company.<br>
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How Affidavit in support of petition to be drawn. ORDER 19 RULE 1 AFFIDAVIT Unless the affidavits are properly verified and are in conformity with the rule, they will be rejected by the Court. MANU/BH/0026/1962: MANU/WB/0079/1968: MANU/MH/0004/1964 :
Where the matter deposed to is not based on personal knowledge, but on information, the source of information should be clearly disclosed MANU/SC/0016/1952 : 1952CriLJ1269 : MANU/WB/0143/1956 : AIR1956Cal496 .<br>
Where the matter deposed to is not based on personal knowledge, but on information, the source of information should be clearly disclosed MANU/SC/0016/1952 : 1952CriLJ1269 : MANU/WB/0143/1956 : AIR1956Cal496 .<br>
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THE PROVISIONS OF CPC ARE APPLICABLE TO CLB/NCLT
The court further held that provisions of CPC are applicable to the proceedings pending before CLB. Krithika Mullengada Vs. Wipro Ltd . 2012 (108) CLA 28 Kar DB.<br>
The court further held that provisions of CPC are applicable to the proceedings pending before CLB. Krithika Mullengada Vs. Wipro Ltd . 2012 (108) CLA 28 Kar DB.<br>
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INDIAN PENAL CODE: In case it is found that the Opposite Party has deliberately made false statement or filed forged and fabricated documents (which very often occurs), paper, return, the aggrieved party may, besides moving an application for dismissal of the petition, also file an application U/s 340 of Cr.P.C. read with Section 192 of IPC.
Section 340 of Cr.P.C. provides that the party, who has made deliberately false statement or created false evidence, may be punished with imprisonment upto seven years and also with fine. Besides the above, by virtue of the judgment of the Hon’ble Supreme Court in the case of S.P. Chengalvarya, the petition could be dismissed by NCLT without waiting for the whole trial to complete.<br>
Section 340 of Cr.P.C. provides that the party, who has made deliberately false statement or created false evidence, may be punished with imprisonment upto seven years and also with fine. Besides the above, by virtue of the judgment of the Hon’ble Supreme Court in the case of S.P. Chengalvarya, the petition could be dismissed by NCLT without waiting for the whole trial to complete.<br>
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Section 405 of IPC define Criminal Breach of Trust to say that if a person, who has been entrusted with any property, which include money and if dishonestly misappropriate the same he shall be liable for the offence of Criminal Breach of Trust punishable U/s 406 with imprisonment for a term which may extend to three years or with fine or both.
Section 408 of IPC
Criminal breach of trust by clerk or servant. – Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any domain over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.<br>
Section 408 of IPC
Criminal breach of trust by clerk or servant. – Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any domain over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.<br>
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Section 409 of IPC
Criminal breach of trust by public servant, or by banker, merchant or agent. – Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The difference between Section 405 and Section 409 – the imprisonment U/s 409 is for a period of life whereas in case of Criminal Breach of Trust, it is only three years.<br>
Criminal breach of trust by public servant, or by banker, merchant or agent. – Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The difference between Section 405 and Section 409 – the imprisonment U/s 409 is for a period of life whereas in case of Criminal Breach of Trust, it is only three years.<br>
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Section 420 OF IPC
Section 420 in a simple way says – whoever with dishonest intention, induces the person deceived to deliver any property to any person, or to alter or destroy the valuable security to cause any wrongful gain to himself and cause wrongful loss to the other, such person shall be deemed to have committed an offence of cheating punishable with imprisonment extendable upto a period of seven years also with fine.<br>
Section 420 in a simple way says – whoever with dishonest intention, induces the person deceived to deliver any property to any person, or to alter or destroy the valuable security to cause any wrongful gain to himself and cause wrongful loss to the other, such person shall be deemed to have committed an offence of cheating punishable with imprisonment extendable upto a period of seven years also with fine.<br>
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Section 463 of IPC
Forgery. – Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery and shall be punishable u/s 468 of IPC with imprisonment for a term of seven years and also with fine.<br>
Forgery. – Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery and shall be punishable u/s 468 of IPC with imprisonment for a term of seven years and also with fine.<br>
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IMPORTANT PRINCIPLES OF LAW AND PROCEDURE
The provisions of new law shall not apply in case of action has taken place when the old law was applicable:
In Katikara Chintamani Dora v. Guntreddi Annamanaidu MANU/SC/0336/1973 : (1974) 1 SCC 567, this Court held:
“It is well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (Maxwell on Interpretation, 12th Edn. 220). That is to say, "in the absence of anything in theAct, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed".<br>
The provisions of new law shall not apply in case of action has taken place when the old law was applicable:
In Katikara Chintamani Dora v. Guntreddi Annamanaidu MANU/SC/0336/1973 : (1974) 1 SCC 567, this Court held:
“It is well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (Maxwell on Interpretation, 12th Edn. 220). That is to say, "in the absence of anything in theAct, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed".<br>
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EVERY SUBSTANTIAL LAW IS PROSPECTIVE.
The Supreme Court in the case of Zile Singh v. State of Haryana MANU/SC/0876/2004:(2004)8SCC1, examined the various authorities on statutory interpretation and concluded as under:-
“It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation.”
Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only.<br>
The Supreme Court in the case of Zile Singh v. State of Haryana MANU/SC/0876/2004:(2004)8SCC1, examined the various authorities on statutory interpretation and concluded as under:-
“It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation.”
Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only.<br>
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Statutory returns have no evidential value unless supported by documents/evidence:
Srichand Bajaj Vs. Bajaj Promoters Ltd 2006(75) CLA 303 and also Harish K Berry Vs. S Berry Automotive Udyog (P) Ltd., 2005 (64) CLA 144.
A mere entry in the Register of Members does not enable a member to claim membership: 2001 (44) CLA 36.<br>
Srichand Bajaj Vs. Bajaj Promoters Ltd 2006(75) CLA 303 and also Harish K Berry Vs. S Berry Automotive Udyog (P) Ltd., 2005 (64) CLA 144.
A mere entry in the Register of Members does not enable a member to claim membership: 2001 (44) CLA 36.<br>
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Duty to speak, contradict or deny
If the party has written number of letters and other party has not replied back, the party not replying to the letters, forfeits his rights to contend otherwise. M/s Arosan Enterprises Vs. Union of India 1999 (VIII) SLT 104 and Delhi Jal Board Vs. Kaveri Infrastructure (P) Ltd., 2014 (206) DLT 136.<br>
If the party has written number of letters and other party has not replied back, the party not replying to the letters, forfeits his rights to contend otherwise. M/s Arosan Enterprises Vs. Union of India 1999 (VIII) SLT 104 and Delhi Jal Board Vs. Kaveri Infrastructure (P) Ltd., 2014 (206) DLT 136.<br>
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A person cannot convey better title than what he himself has.
A general proposition of law is that no person can confer on another a better title than he himself has. [Reference in this regard may be made to the decisions of this Court in Mahabir Gope v. Harbans NArain Singh MANU/SC/0059/1952 : 1952 SCR 775; Asaram v. Mst. Ram Kali 1958 SCR 986 and All India Film Corporation Ltd. v. Raja Gyan Nath MANU/SC/0403/1969 : (1969) 3 SCC 79.]<br>
A general proposition of law is that no person can confer on another a better title than he himself has. [Reference in this regard may be made to the decisions of this Court in Mahabir Gope v. Harbans NArain Singh MANU/SC/0059/1952 : 1952 SCR 775; Asaram v. Mst. Ram Kali 1958 SCR 986 and All India Film Corporation Ltd. v. Raja Gyan Nath MANU/SC/0403/1969 : (1969) 3 SCC 79.]<br>
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The figures shown in Income Tax Return is admission:
The Supreme Court in Uttam Singh Dugal & Co. Ltd. v. Union Bank of India MANU/SC/0485/2000 : [2000] 39 CLA l/[2000] 102 Comp Cas 118/[2000] 7 SCC 120, observed that the Income-Tax Returns showing transfer of shares of the Petitioners is an admission, thereby by virtue, of the said admission, the petition is to be rejected on admissions as per law laid down under Order 12, Rule 6 of the Code of Civil Procedure.<br>
The Supreme Court in Uttam Singh Dugal & Co. Ltd. v. Union Bank of India MANU/SC/0485/2000 : [2000] 39 CLA l/[2000] 102 Comp Cas 118/[2000] 7 SCC 120, observed that the Income-Tax Returns showing transfer of shares of the Petitioners is an admission, thereby by virtue, of the said admission, the petition is to be rejected on admissions as per law laid down under Order 12, Rule 6 of the Code of Civil Procedure.<br>
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Waiver and Acquiscence:
The principles of acquiescence holds that it is unjust to give a claimant the remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver. U.P. Jal Nigam v. Jaswant Singh MANU/SC/5073/2006 : (2006) 11 SCC 464.<br>
The principles of acquiescence holds that it is unjust to give a claimant the remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver. U.P. Jal Nigam v. Jaswant Singh MANU/SC/5073/2006 : (2006) 11 SCC 464.<br>
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Person signing documents cannot deny knowledge.
When a person signs a documents, presumption is that he has read the documents properly and understood it and only then affixed his signatures thereon, unless there is a proof of force or fraud. Such presumption is much stronger in case of businessmen. If there is no allegation of force or fraud, such contention cannot be accepted. Grasim Industries Ltd Vs. Agarwal Steel 2010(1) SCC 83.<br>
When a person signs a documents, presumption is that he has read the documents properly and understood it and only then affixed his signatures thereon, unless there is a proof of force or fraud. Such presumption is much stronger in case of businessmen. If there is no allegation of force or fraud, such contention cannot be accepted. Grasim Industries Ltd Vs. Agarwal Steel 2010(1) SCC 83.<br>
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Fraud vitiates all solemn acts:
It is now well settled that fraud vitiated all solemn act. Any order or decree obtained by practicing fraud is a nullity.
(a)Ram Chandra Singh v. Savitri Devi and Ors. MANU/SC/0802/2003 : (2003)8SCC319 followed in
(b) Vice Chairman, Kendriya Vidyalaya Sangathan and Anr. v. Girdhari Lal Yadav ;
(c) State of A.P. and Anr. v. T. Suryachandra Rao MANU/SC/0431/2005 : AIR2005SC3110.<br>
It is now well settled that fraud vitiated all solemn act. Any order or decree obtained by practicing fraud is a nullity.
(a)Ram Chandra Singh v. Savitri Devi and Ors. MANU/SC/0802/2003 : (2003)8SCC319 followed in
(b) Vice Chairman, Kendriya Vidyalaya Sangathan and Anr. v. Girdhari Lal Yadav ;
(c) State of A.P. and Anr. v. T. Suryachandra Rao MANU/SC/0431/2005 : AIR2005SC3110.<br>
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Maintainability of petition:
The Supreme Court has held that when the issue of maintainability is pending, no issue on merit should be considered and hence, the maintainability of the application should be first decided before considering the reliefs sought for in the application. In T.K. Lathika v. Seth Karsandas Jamnadas MANU/SC/0535/1999.<br>
The Supreme Court has held that when the issue of maintainability is pending, no issue on merit should be considered and hence, the maintainability of the application should be first decided before considering the reliefs sought for in the application. In T.K. Lathika v. Seth Karsandas Jamnadas MANU/SC/0535/1999.<br>
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Plea taken for the first time in replication:
While canvassing the proposition that any plea taken by the plaintiff in the replication to which the defendants have no opportunity to reply inconsistent with the original pleading should be refused to be taken on record and if taken shall be liable to be struck off and taken off the file, learned counsel has relied upon Anant Constructions Pvt. Ltd. v. Ram Niwas MANU/DE/0407/1994 : 1994IVAD(Delhi)185 wherein it was observed that a plea which is foundation of the plaintiff's case or essentially a part of cause of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication.<br>
While canvassing the proposition that any plea taken by the plaintiff in the replication to which the defendants have no opportunity to reply inconsistent with the original pleading should be refused to be taken on record and if taken shall be liable to be struck off and taken off the file, learned counsel has relied upon Anant Constructions Pvt. Ltd. v. Ram Niwas MANU/DE/0407/1994 : 1994IVAD(Delhi)185 wherein it was observed that a plea which is foundation of the plaintiff's case or essentially a part of cause of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication.<br>
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Vexatious, frivolous and mischievous litigation:
The Supreme Court in the case of Dalip singh Vs. State of UP 2010(2) SCC 114 has held as under:-
“In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice, or two touches the pure fountain of justice with tained hands, is not entitle dto any relief, interim or final.”<br>
The Supreme Court in the case of Dalip singh Vs. State of UP 2010(2) SCC 114 has held as under:-
“In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice, or two touches the pure fountain of justice with tained hands, is not entitle dto any relief, interim or final.”<br>
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In cash transaction, the party who alleges, there is heavy burden on him about payment in cash.
Mahesh Kumar Wadhwa Vs. Bimal Luthra MANU/DE/1830/2008 : 2009 (107) DRJ 271 holding, though in the context of grant of leave to defend under Order 37 of the CPC, that when a party enters into a transaction involving large sums of money in cash through non bank channels those transactions will always remain open to challenge and the burden heavily lies on the party to prove that he had entered into the said transaction;<br>
Mahesh Kumar Wadhwa Vs. Bimal Luthra MANU/DE/1830/2008 : 2009 (107) DRJ 271 holding, though in the context of grant of leave to defend under Order 37 of the CPC, that when a party enters into a transaction involving large sums of money in cash through non bank channels those transactions will always remain open to challenge and the burden heavily lies on the party to prove that he had entered into the said transaction;<br>
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LIFTING OF CORORATE VEIL
It is very seen that the Government Authorities for realization of government dues or even parties for the purpose of recovery of their dues from the government, initiate proceedings against the working directors of the company – though the judgment and decree is only against the company and not against the Director in his personal capacity.
State of UP Vs. Renusagar MANU/SC/0505/1988
New Horizon Ltd Vs. UOI MANU/SC/0564/1995.
LIC VS. ESCORTS MANU/SC/0015/1985.<br>
It is very seen that the Government Authorities for realization of government dues or even parties for the purpose of recovery of their dues from the government, initiate proceedings against the working directors of the company – though the judgment and decree is only against the company and not against the Director in his personal capacity.
State of UP Vs. Renusagar MANU/SC/0505/1988
New Horizon Ltd Vs. UOI MANU/SC/0564/1995.
LIC VS. ESCORTS MANU/SC/0015/1985.<br>
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Juggilal Kamlapat Vs. CIT MANU/SC/0091/1968.
Bajrang Pd Jalan Vs. Mahabir Pd Jalan Vs. 1999 AIR Cal 155
JB Exports Vs. BSES Rajdhani Power Ltd MANU/DE/0880/2006
Singer India Limitd Vs. CM Chadha MANU/SC/0626/2004= AIR 2004 SC 4368
Vipul Gupts Vs. Trident Projects Ltd MANU/DE/0082/2009= 2009(157) DLT 1.<br>
Bajrang Pd Jalan Vs. Mahabir Pd Jalan Vs. 1999 AIR Cal 155
JB Exports Vs. BSES Rajdhani Power Ltd MANU/DE/0880/2006
Singer India Limitd Vs. CM Chadha MANU/SC/0626/2004= AIR 2004 SC 4368
Vipul Gupts Vs. Trident Projects Ltd MANU/DE/0082/2009= 2009(157) DLT 1.<br>
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If the company is represented through Directors or in other words, the petition or reply has been filed through directors of the company, no execution petition can be filed against such Directors for realisation of the amount under the money decree passed against the company of which the person is director because he is signing the petition or written statement in the capacity of a director and not in his personal capacity. Dr Rakha Kamat Vs. Nath steel Equipments 2010 (4) Current Civil Cases 34.<br>
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NO INTERIM RELIEF, IF NO CHALLENGE IN MAIN PRAYER.
It is well settled that no Order can be passed on any interlocutory application, if there is no prayer in the Main Prayer/Final Prayer in the Petition – no relief can be granted at interlocutory stage which are beyond scope of suit – prayers made for interlocutory application in present case outside scope of suit – same cannot be entertained at such stage – no order can be passed on such application except Order to expedite suit. MANU/WB/0470/2002. MANU/SC/0086/1999.<br>
It is well settled that no Order can be passed on any interlocutory application, if there is no prayer in the Main Prayer/Final Prayer in the Petition – no relief can be granted at interlocutory stage which are beyond scope of suit – prayers made for interlocutory application in present case outside scope of suit – same cannot be entertained at such stage – no order can be passed on such application except Order to expedite suit. MANU/WB/0470/2002. MANU/SC/0086/1999.<br>
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Where the company law Board by impugned order had restrained the appellant and its Board of directors from implementing the decision take in the Board of Directors meeting and the decision taken by the Board of Directors have not been challenged in the main petition, no relief can be granted. Shree Ram Urban Infrastructure Ltd Vs. R K Dhall 2010(98)CLA (Snr) 3 (Bom).<br>
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Even where a person is not a member but he has indeffasible right to be a member, is entitled to file a company petition .
SVT Spinning Mills (P) Ltd Vs. M Palanisami 2009(95) SCL 112., Gulab rai Kalidas Naik Vs. Laxmidas Lallubhai Patel 1947 (47) Company Cases 151.<br>
SVT Spinning Mills (P) Ltd Vs. M Palanisami 2009(95) SCL 112., Gulab rai Kalidas Naik Vs. Laxmidas Lallubhai Patel 1947 (47) Company Cases 151.<br>
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THANK YOU<br>