Legislative and Regulatory Update
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In This Issue [No.148] February 10, 2006
Supreme Court High Courts & Tribunals RBI Ministry of Environment and Forests SEBI Ministry of Health and Family Welfare Ministry of Shipping, Road Transport and Highways International Cases and News
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Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit, Indore Vs. President, Indore Development Authority
The present appeal was preferred against judgment of single judge holding that the appellant was not entitled to benefit of guidelines specified in Circular issued by the respondents relating to Housing Co-operative Societies to utilize the land owned by them by making plots for construction of houses for the benefit of their members. The appellant was denied the benefit of the Circular on the ground that it did not fulfill the requisite conditions.
The apex court held that the conditions as to society to be registered and purchase of land prior to publication of declaration under Section 50(2) of Authority was not fulfilled. The appellants also did not fulfill the mandate as to handing over a vacant and peaceful possession of the concerned land to the Authority while entering into an advance agreement with the Authority. The appellants not entitled to enter into advance agreement as it was neither the owner nor in possession of the concerned land. The appellant claim as to allotment to other non eligible society by respondents on basis of Right to equality under Article 14 could not be sustained as concept of equal treatment presupposes is existence of similar legal foothold and repetition of a wrong action will not make one right. Hence, the appeal was dismissed.
H.P. Pyarejan Vs. Dasappa (Dead) by LRs. and Ors.
The judgment rendered by learned single judge allowing the second appeal of plaintiff was under challenge in this appeal. The plaintiff’s claim for specific performance of contract was turned down by the trial Court as there was no compliance with Section 16 (c ) of Specific Relief Act. The High Court allowing the appeal held that there was specific pleading as regards the readiness and willingness of the plaintiff to perform his part of the contract. The issues concerned was whether High Court was right in its holding.
The apex Court enunciating the principles of specific relief set forth that the basic principle behind Section 16(c) read with Explanation (ii) as any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. There was no requirement as to the pleading should contain specific averment as to readiness and willingness of plaintiff to perform the contract. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract then specific averment to that effect can be mitigated. But since the finding on the question of readiness and willingness to perform the contract was a mixed question of law and fact , the High Court lacks jurisdiction to entertain the matter. Since plaintiff did not satisfy the requirement in Section 16(c) and did not prove he was willing to perform his part, the Order of High Court suffers from infirmity and was liable to be set aside.
BSES Ltd. (Now Reliance Energy Ltd.) Vs. Fenner India Ltd. and Anr.
The present appeal was preferred against the Order of High Court granting injunction to invoke bank guarantee. The issue to be resolved in the present case was that whether the High Court was justified in granting injunction to invoke bank guarantee eventhough there was breach of contractual obligation.
The Supreme Court rendering the verdict in favour of the appellant observed that the First Respondent can succeed only if the case can be brought under the two accepted exceptions to the general rule against intervention of bank guarantee. Evidently, there is no "egregious fraud" so as to fall within the first exception. And as there is no situation of "irretrievable injustice" by the encashment of bank guarantee. Hence, the High Court erred in interfering with the bank guarantee and granting injunction.
Punjab and Haryana
Patwant Kaur v Sarabjit Singh
The Appeal has been filed by the Appellant against the judgment and decree passed by the Additional District Judge where the Trial Court has concluded that the Petitioner- respondent has been able to prove the acts of cruelty on the part of the respondent-appellant as also the act of desertion for a continuous period of two years. The main issue involved was whether the respondent is guilty of cruelty and whether the respondent has deserted the petitioner for a continuous period of two years before filing the petition without any sufficient cause.
Dismissing the appeal the High Court held that it has established that the act on the part of the respondent –appellant culminating into the act of cruelty so far as the desertion is concerned has been amply proved. She had left the matrimonial home with the household articles along with her son with an intention not to come back. However, keeping in view the interest of the child it is directed that the petitioner- respondent shall deposit a sum of Rs. 4 lacks in the name of the child through the natural guardian for the benefit of the child.
Andhra Pradesh
P.Malleswaramma v P. Prathap Reddy
The Appeal has been filed against the order passed by the Subordinate Judge, which was filed under section 13 of Hindu Marriage Act, 1935, seeking a decree of divorce. The Trial court allowed the petition and thereby dissolved the marriage by granting a decree of divorce. The main issue involved was whether the statement made by the husband making certain allegations for purpose of grant of divorce was established and whether the grounds stated are sufficient for the same.
The High Court allowing the appeal held that the marital tie between wife and husband has been considered to be a holy relationship and courts in all cases shall not resort to grant divorce. The grounds invented by husband were not satisfactory and was not successfully established. Hence it was held that despite the factum of cohabitation with other woman could not lead to the conclusion that the relationship cannot be retrieved or that it is a case of prolonged incompatibility. The divorce decree passed by lower Court was therefore set aside.
Haryana State Consumer Disputes Redressal Commission, Chandigarh
MRF LTD.V Ram Sawrup and Anr
The Appeal has been filed by the Appellant against the order passed by the District Forum, Bhiwani whereby the Forum directed jointly and severally to pay 50% cost of the tyre with interest @10% per annum from the date of filing of the complaint till its realization. The main issue involved was whether the respondent is entitled to get the 50% cost of the tyre with interest @10% per annum for the tyre, which suffered damage within a period of six months of its purchase.
Dismissing the Appeal the Commission held that there is no reason or justification to interfere with the impugned order of the District Forum because the Complainant has fully established that the tyre in question had suffered damage within a period of six months of its purchase and within warranty period. Hence, the District Forum rightly concluded that there was deficiency of service on the part of the opposite parties.
National Consumer Dispute Redressal Commission
New India Assurance Co. Ltd. Vs Smt. Sukanti Paikray
In the Present case, appeal was made to the National Consumer Dispute Redressal Commission against the decision of the State Commission where the State Commission reviewed it’s own order by directing the Company to pay a further amount as directed in the review order passed by it.
The question of law involved in this case was whether the State Commission has the power to review it’s own orders passed under the Consumer Protection Act, 1986. The National Commission, quoting the Supreme Court decision in Jyotsana Avind kumar Shah and Others Vs Bombay Hospital Trust, held that the State Commission has got no power under Sections 17 and 21 of the Consumer Protection Act, 1986 to review it’s own orders passed by it on merits. Hence, the appeal was dismissed and the review order passed by the State Commission was set aside.
Gita Mechanical Works and Others Vs State Bank of India
In this case, review petition was made to the National Consumer Dispute Redressal Commission against the Bank for deficiency in service for not implementing the rehabilitation order passed by the High Court. Instead, the Bank had filed a suit for recovery of debts before the Debts Recovery Tribunal.
The dispute to be decided was whether the petition against the Bank is maintainable for non-compliance of the orders of the High Court. The National Commission held that the present petition is not maintainable under Section 21 of the Consumer Protection Act, 1986, as stay was not operating in the LPA filed by the Bank. Hence, the petition was dismissed.
DBOD
Guidelines on Securitisation of Standard Assets
Circular No: DBOD.NO.BP.BC.60/21.04.048/2005-06 Dated 01.02.2006. The Reserve Bank had issued draft guidelines on securitisation of standard and on the basis of the feedback received from all stakeholders, the draft guidelines have been suitably modified. The same shall come into force with immediate effect. The guidelines on securitisation of standard assets are applicable to banks, financial institutions and non-banking financial companies.
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