Family Law

Smt Sunita Motwani v. Amitabh Sinha

There cannot be any bar for claiming maintenance under S. 24 HMA, even in the event of application under S. 125 CrPC having been filed.

Rupali Gupta v. Rajat Gupta

The wife, who is a qualified Chartered Accountant and in profession need not be granted interim maintenance under Section 24 of the Hindu Marriage Act.

Gaurav Nagpal v. Sumedha Nagpal, AIR 2009 SC 557

It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the "moral and ethical welfare of the child must also weigh with the court as well as his physical well- being". The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.

 

Jai Prakash Khadria v. Shyam Sunder Agarwalla & Anr., AIR 2000 SC 2172; and Mausami Moitra Ganguli v. Jayant Ganguli, AIR 2008 SC 2262

It is held that it is always permissible for the wards to apply for the modification of the order of the court regarding the custody of the child at any stage if there is any change in the circumstances.

Validity and Presumption of Marriage

Piers v. Piers [(1849) 2 HL Cas 331 : (1843-60) All ER Rep 159 : 9 ER 1118] – House of Lords

The question of validity of a marriage cannot be tried like any other issue of fact independent of presumption.The Court held that law will presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.

Lt. C.W. Campbell v. John A.G. Campbell [(1867) LR 2 HL 269] , also known as the Breadalbane case [(1867) LR 2 HL 269]

The House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute.

Sastry Velaider Aronegary v. Sembecutty Vaigalie [(1881) 6 AC 364 : (1881-85) All ER Rep Ext 1804 (PC)]

It was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

 Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [AIR 1927 PC 185] 

The Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

Mohabbat Ali Khan v. Mohd. Ibrahim Khan [(1928-29) 56 IA 201 : AIR 1929 PC 135]

The Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.

Gokal Chand v. Parvin Kumari [AIR 1952 SC 231]

Continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

Badri Prasad v. Director of Consolidation [(1978) 3 SCC 527]

The Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.

 Tulsa v. Durghatiya [(2008) 4 SCC 520]

It is held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.

Capt. Ramesh Chander Kaushal v. Veena Kaushal [(1978) 4 SCC 70 : 1978 SCC (Cri) 508 : AIR 1978 SC 1807]

Section 488  of Criminal Procedure Code, 1898 except for the fact that the parents have also been brought into the category of persons entitled for maintenance. It observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39.

Great  Krishna Iyer, J.

observed that

“9. … We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause—the cause of the derelicts.”

Vimala v. Veeraswamy [(1991) 2 SCC 375 : 1991 SCC (Cri) 442]

A three-Judge Bench of Supreme Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word “wife” the Court held: (SCC p. 378, para 3)

“3.

…The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective.”

Famous Shah Bano case-  Mohd. Ahmed Khan v. Shah Bano Begum [(1985) 2 SCC 556 : 1985 SCC (Cri) 245]

Considering the provision of Section 125 of the 1973 Code, opined that the said provision is truly secular in character and is different from the personal law of the parties. The Court further held that such provisions are essentially of a prophylactic character and cut across the barriers of religion. The Court further held that the liability imposed by Section 125 to maintain close relatives, who are indigent, is founded upon the individual’s obligation to the society to prevent vagrancy and destitution.

Dwarika Prasad Satpathy v. Bidyut Prava Dixit [(1999) 7 SCC 675 : 1999 SCC (Cri) 1345]

The standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached.

 Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav [(1988) 1 SCC 530 : 1988 SCC (Cri) 182 : AIR 1988 SC 644]

It is held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper (see para 6). The learned Judges also held (paras 4 and 8) that the expression “wife” in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

Savitaben Somabhai Bhatiya v. State of Gujarat [(2005) 3 SCC 636 : 2005 SCC (Cri) 787 : AIR 2005 SC 1809]

It is held that however desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of “wife”. The Bench held that this inadequacy in law can be amended only by the legislature.

Criminal Law

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State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198

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Discharge- at the stage of framing of charge-The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure.

2017-1-SCC-113 -Amarsang Nathaji v. Hardik Harshadbhai Patel and Others

Perjury- The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”)

Arif Khan @ Agha Khan Versus  State of Uttarakhand (SC) (27-04-2018)

NDPS Act- Section 50- It is mandatory to conduct search in the presence of Gazetted Officer or Magistrate as per Section 50, which is mandatory.- As per Section 50 obligation cast upon the Police Officials to follow the procedure envisaged under the section, irrespective of the fact the Accused invoked his right or not.

Two Views :

State of U.P. V. Ram Veer Singh and Another

The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case,one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.

Evidentiary Value of Hostile Witness.

Podyami Sukada v. State of M.P., (201[metaslider id=2951]0) 12 SCC 142 : (2011) 2 SCC (Cri) 161 at page 145

True it is that the evidence of the hostile witness is not altogether wiped out and remains admissible in evidence and there is no legal bar to base conviction on the basis of the testimony of hostile witness but as a rule of prudence, the court requires corroboration by other reliable evidence.

Lella Srinivasa Rao v. State of A.P., (2004) 9 SCC 713 : 2004 SCC (Cri) 1479 at page 719

Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused.

Paramjeet Singh v. State of Uttarakhand, (2010) 10 SCC 439 : (2011) 1 SCC (Cri) 98]

The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony.

Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661]

It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.

Rajendra v. State of U.P., (2009) 13 SCC 480 : (2010) 1 SCC (Cri) 1072]

Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable.

Govindappa v. State of Karnataka, (2010) 6 SCC 533 : (2010) 3 SCC (Cri) 184]

Deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution.

Non-Explanation of Injuries sustained by the Accused

Lakshmi Singh Vs. State of Bihar AIR 1976 SC 2263

In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences :
1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version ; 2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable ; 3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

Mohinder Singh vs. State of Punjab – 2006 AIR SCW 1610

Injuries suffered by accused were simple – Non- explanation thereof would not dislodge prosecution case, which is established by evidence of credit worthy witnesses.

Shahjahan vs. State of Kerala – 2007 AIR SCW 2123

Murder – Non-Explanation of injuries – Minor and superficial injuries would not affect prosecution case.

Credibility of Witness

State of Orissa vs. Brahmananda – AIR 1976 SC 2488.

Section 3 of Evidence Act, 1872 – Eye-witness not disclosing name of assailant for a day and half-Unnatural.

Harbans Lal vs. State of Punjab – 1996 SCC (Cri) 312.

Eye-witness – not informing about the incident till the third day to anyone – Unnatural conduct – Unsafe to rely upon their testimony.

Joseph vs. State of Kerala – 2003 SCC (Cri) 356

Eye-witness not disclosing the fact to anybody that he being an eye-witness till the next day conduct unnatural – not safe to sustain conviction.

Circumstantial Evidence

State of U.P. v. Desh Raj, (2006) 9 SCC 278 : (2006) 2 SCC (Cri) 489 at page 282

It is a well-settled principle that in order to sustain a conviction on circumstantial evidence, the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and inconsistence with his innocence. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.

Indus Financial Ltd. v. Quantum Ltd.

It was held that two parallel proceedings one under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘Securitisation Act’) and the other under the Code could run side-by-side against the same debtor.

Schweitzer Systemetek India (P.) Ltd. (NCLAT)

Moratorium only operated against assets of the corporate debtor. But if an action was brought for enforcing the personal guarantee provided by the promoters of the corporate debtor, then the same would survive and can be proceeded against.

Innoventive Industries Ltd. v. ICICI Bank (SC)

It was held that once an insolvency professional is appointed to manage the company, the erstwhile directors who are no longer in management, cannot even maintain an appeal on behalf of the corporate debtor. Accordingly, any appeal filed by the erstwhile directors challenging an order of the NCLAT is not
maintainable.

Raj Oil Mills Ltd., In re. (NCLT)

Normally a viable solution was to give a preference to the decision taken by that financial creditor which had the largest percentage in the voting rights. Thus, the wishes of the creditor having 61 per cent vote share was preferred over the other creditors.

Insurance Law Judgments

United India Insurance Co. Ltd. v. M.K.J. Corpn., (1996) 6 SCC 428

It is a fundamental principle of Insurance law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, “similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured.

General Assurance Society Ltd. v. Chandumull Jain,  AIR 1966 SC 1644 

In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.

Oriental Insurance Company Ltd. v. Meena Variyal, (2007) 5 SCC 428

Mere absence of or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party. The insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon the facts breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident

B.V. Nagaraju v. Oriental Insurance Co. Ltd Divisional Officer, Hassan- (1996) 4 SCC 647.

Mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle

Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd. & Anr., (2010) 10 SCC 567

It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance law have to be strictly construed and no exception can be made on the ground of equity. Thus, it needs little emphasis that in construing the terms of a contract of insurance important, and it is not open for the court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.

New India Assurance Co. Ltd. v. Ram Dayal [(1990) 2 SCC 680
National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi[(1997) 1 SCC 66]

In absence of any specific time mentioned in the policy, the contract would be operative from the midnight of the day by operations of the provisions of the General Clauses Act but in view of the special contract mentioned in the insurance policy, the effectiveness of the policy would start from the time and date indicated in the policy.

Oriental Insurance Co. Ltd. v. Sunita Rathi[(1998) 1 SCC 365]

In this case, the accident occurred at 2.20 p.m. and the cover note was obtained only thereafter at 2.55 p.m. The Court observed that the policy would be effective from the time and date mentioned in the policy.

New India Assurance Co. v. Bhagwati Devi [(1998) 6 SCC 534]

This Court observed that, in absence of any specific time and date, the insurance policy becomes operative from the previous midnight. But when the specific time and date is mentioned, then the insurance policy becomes effective from that point of time.

J. Kalaivani v. K. Sivashankar [(2007) 7 SCC 792 : JT (2001) 10 SC 396]

It is the obligation of the court to look into the contract of insurance to discern whether any particular time has been specified for commencement or expiry of the policy.

National Insurance Co. Ltd. v. Sobina Iakai, (2007) 7 SCC 786

A very large number of cases have come to our notice where insurance policies are taken immediately after the accidents to get compensation in a clandestine manner. In order to curb this widespread mischief of getting insurance policies after the accidents, it is absolutely imperative to clearly hold that the effectiveness of the insurance policy would start from the time and date specifically incorporated in the policy and not from an earlier point of time.

Mackinnon Mackenzie & Co. Pvt. Ltd. v. Ritta Famandes, 1969 ACJ 419 (SC).

In the said decision while dealing with section 3 of the Workmen’s Compensation Act, 1923, the Supreme Court had held as follows:

“It is well established that under this section there must be some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease, he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death or if the death was due not only to the disease but the disease coupled with the employment then it could be said that the death arose out of the employment and the employer would be liable. Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under the circumstances which can be said to be accidental, his death results from injury by accident.

Assam Railways & Trading Co. Ltd. v. Saraswati Devi, 1958-65 ACJ 394 (Assam).

In the said case, it was held that a person having died of heart attack, but having regard to the nature of the work it could not be related to the disease though heart attack preceded the fall.

United India Insurance Co. Ltd. v. C.S Gopalakrishnan, 1989 ACJ 794 (Kerala).

It was held that the stress and strain due to the work is contributory to the death and as such is causally connected with the employment.

United India Insurance Co. Ltd. v. Yasodhara Amma, 1989 ACJ 1075 (Kerala).

In the said case, the Kerala High Court held that a person having become actually ill in the course of employment though such illness was not a serious injury to the heart, yet it could be related to since stringently driving of the vehicle from one place to another accelerated his illness and resulted into death. Thus, there was direct evidence to come to the conclusion that the stress and strain related to the employment had resulted into an accident.

Tejubai v. General Manager, Western Railway, Bombay, 1983 ACJ 661 (Gujarat).

This case concerns a driver driving the railway. While such driving, he felt pain at one station and he took rest. Then the train proceeded to another station and again he felt pain and then he was taken to hospital. However, he was discharged from the hospital but subsequently he developed pain and died at the railway quarter. In this case, it was held that it was connected with the employment.

Shakuntala Chandrakant Shreshti [(2007) 11 SCC 668

The factors to be established to prove that an accident has taken place have been culled out and stated as under in para 26: (SCC p. 677)

“26. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:
(1) stress and strain arising during the course of employment,
(2) nature of employment,
(3) injury aggravated due to stress and strain.

ESI Corpn. case [ESI Corpn. v. Francis De Costa, (1996) 6 SCC 1

The tests attracting the provisions of Section 3 of the Act. The principles are:

(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) If the evidence brought on record establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the facts of each case.

Sundarbai v. Ordnance Factory [1976 Lab IC 1163 (MP)] Lab IC

In this Decision, the following principles are culled out.

(A) ‘Accident’ means an untoward mishap which is not expected or designed by the workman. ‘Injury’ means physiological injury.

(B) ‘Accident’ and ‘injury’ are distinct in cases where accident is an event happening externally to a man; e.g. when a workman falls from a ladder and suffers injury. But accident may be an event happening internally to a man and in such cases ‘accident’ and ‘injury’ coincide. Such cases are illustrated by bursting of an aneurism, failure of heart and the like while the workman is doing his normal work.

(C) Physiological injury suffered by a workman due mainly to the progress of a disease unconnected with employment, may amount to an injury arising out of and in the course of employment if the work which the workman was doing at the time of the occurrence of the injury contributed to its occurrence.

(D) The connection between the injury and employment may be furnished by ordinary strain of ordinary work if the strain did in fact contribute to or accelerate or hasten the injury.

(E) The burden to prove the connection of employment with the injury is on the applicant, but he is entitled to succeed if on a balance of probabilities a reasonable man might hold that the more probable conclusion is that there was a connection.”

United India Insurance Co. Ltd., v. C.S Gopalakrishnan (1989 ACJ 794)

A bus conductor had died of heart attack while sleeping in the parked bus during rest hours. Even though the employer had contended that the bus conductor died in a natural death when he was not on duty and had no obligation to sleep inside the bus, it was held that there was causal connection between the death and employment and employer liable to pay compensation for the stress and strain of the work due to long hours with limited rest interval had contributed towards the death of the employee which arose out of and during the course of the employment.

T. Shanmuga Mudaliar v. Tmt. Noorjahan and others (2003 Vol. 102 F.J.R 90)

Where the driver bringing a bus to halt at the bus stop and collapsing due to heart attack, it was held that the death had occurred during the course of the employment since the deceased would not have been at the spot where he died but for the fact he was discharging his duty as a driver.

Management Of Vanniar Estate v. Kamatchi & Commissioner For Workmen ‘s Compensation (II (1991) ACC 633)

It is held that a pre-existing heart condition which was aggravated by the strain of the work of the deceased resulting in his death would constitute accidental injury within the meaning of the Act.

Management Of Deveon Estate, Nilgiris v. Nabeesa (1991 ACJ 489)

It is held that a workman while going to field from the muster suffered from acute chest pain and died instantaneously due to pre-existing heart condition, which was aggravated by the strain of work, it was held that the death arose out of and in the course of employment.

Madras State Electricity Board v. Ambazhtingal Ithachutti Umma(1966 II LLJ 12)

The principle in heart cases seems to be that, if death or disability is due to heart attack which resulted from the exertion of the employee in the performance of the duties of his employment, compensation should be awarded.

Bhagwanji Murubhai Sodha And Others v. Hindustan Tiles And Cement Industries, Jamoagar (1977 II LLJ 95)

It deals with heart cases has laid down the following principle:

“The sudden collapse of the worker after he suffered this injury resulting in his chest pain was clearly the result of his work connected with the work he was doing. In fact, this was a clear case where the old age got coupled with the employment and, therefore, the employment was a contributory cause and the causal connection being established, the conclusion was inescapable that the accident arose out of and during the course of the employment.
Unless there were circumstances to the contrary, it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time, and it would also be natural to presume that if such work involved some strain, the disease, infirmity or old age, that was existing was likely to contribute to or accelerate the death. In such cases, the pre-existing disease, infirmity or old age is the pre-disposing factor which will supply the necessary causal link to make this a work connected injury, if death takes place while the workman is engaged in his normal work”

Management, Hindustan Aeronautics Ltd., v. M.S Bhagya, reported in 1999 (4) LLN 303

The Karnataka High Court held that the burden is cast on the claimant to establish that there must be a causal connection between the death of the workman and his employment. The Court further held that there must be evidence on record to establish that the workman died on account of the work, he was carrying on and if the death had taken in the normal course of way, automatically, it goes to show that there was no connection between his death and employment.

The Divisional Controller, North v. Sangamma, reported in 2005 ACJ 455

The Division Bench held as follows:

“Therefore, if a workman suffers from a personal injury unexpectedly or suddenly and such personal injury suffered by the workman can be attributed to the work undertaken by the workman or has some connection to the nature of duties discharged by a workman, such an injury suffered can be treated as a result of and in the course of his employment.”

IPR

Gangavishnu Shrikisondas v. Moreshvar Bapuji Hegishte and Others –  ILR 13 Bom 358

A new arrangement of old matters will give a right to the protection afforded by the law of copyright. If anyone by pains and labour collects and reduces it as a systematic compilation in the form of a book it is original in the sense that that entitles such person to the copyright.

Agarwala Publishing House v. Board of High School and Intermediate Education and Another, AIR 1967 All. 91,

The question involved in the case was whether the question papers are `original literary work and come within the purview of Section 13 of the Copyright Act, 1957. It was urged that no copyright can exist in examination papers because they are not original literary work. It was held that the original literary works referred to in Section 13 of the Copyright Act, 1957, are not confined to the works of literature as commonly understood. It would include all works expressed in writing, whether they have any literary merits or not. This is clear from the definition given in Section 2(o) of the Act which states that literary work includes tables and compilations. The Court further held that the word original used in Section 13 does not imply any originality of ideas but merely means that the work in question should not be copied from some other work but should originate in the author, being the product of his labour and skill.

V. Govindan v. E.M. Gopalakrishna Kone and Another – AIR 1955 Madras 391

The Court held that in law books and in books as mentioned above there is very little amount of originality but the same is protected by law and no man is entitled to steal or appropriate for himself the result of another’s brain, skill or labour even in such works. The Court further clarified that where there is a common source, the person relying on it must prove that he actually went to the common source from where he borrowed, employing his own skill, labour and brains and that he did not merely copy

C. Cunniah & Co. v Balraj & Co., AIR 1961 Madras 111

In order to obtain copyright production for literary, domestic, musical and artistic works, the subject dealt with need not to be original, nor the ideas expressed be something novel. What is required is the expenditure of original skill or labour in execution and not originality of thought.

K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 

The expression “property” in Article 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law.

State of A.P. v. National Thermal Power Corpn. Ltd. [(2002) 5 SCC 203]

The Supreme Court, noticing the earlier authorities, held that the definition of “goods” in Article 366(12) of the Constitution was very wide and included all kinds of movable properties. It was held that the term “movable property” when considered with reference to “goods” as defined for the purposes of sales tax cannot be taken in a narrow sense. It was held that merely because electric energy was not tangible or could not be moved or touched like, for instance, a piece of wood or a book it would not cease to be movable property when it had all the attributes of such property. It was held that electricity was capable of abstraction, consumption and use which, if done dishonestly, was punishable under Section 39 of the Electricity Act, 1910. It was held that electric energy could be transmitted, transferred, delivered, stored and possessed in the same way as any other movable property. It was held that electricity was thus “goods” within the meaning of the Sales Tax Act.

M.P. Cement Manufacturers’ Assn. v. State of M.P.[(2004) 2 SCC 249]

It was held that there was no legislative competence in the State to levy cess as Parliament had exclusive legislative competence in respect of electricity  by virtue of Entry 84 in List I of Schedule VII. However, in this case also it has been held that electricity was “goods” and that the State would have competence to levy tax on the sale and consumption of electricity but could not levy cess on the production of electricity.

Associated Cement Companies Ltd. v. Commr. of Customs[(2001) 4 SCC 593]

The question was whether customs duty was leviable on technical material supplied in the form of drawings, manuals and computer disc, etc. The further question was if customs duty was leviable, how it was to be valued. In that case also it was inter alia argued that customs duty could not be levied as the drawings, designs, diskettes, etc. were not goods and that they only constituted ideas. It had been submitted that what was being transferred was technology i.e. the knowledge or know-how and thus, even though this may be valuable, it was intangible property and not goods.

CCE v. Acer India Ltd. [(2004) 8 SCC 173

The Supreme Court has considered in detail what a software program is. After so considering, it has been held that a computer and operative software are different marketable commodities. 

 Jagir Singh v. State of Bihar [(1976) 2 SCC 942

The general rule of construction is not only to look at the words but to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under the circumstances. Sometimes definition clauses create qualification by expressions like ‘unless the context otherwise requires’; or ‘unless the contrary intention appears’; or ‘if not inconsistent with the context or subject-matter’. ‘Parliament would legislate to little purpose’, said Lord Macnaghten in Netherseal Co. v. Bourne [(1889) 14 AC 228 : 61 LT 125 (HL)] , ‘if the objects of its care might supplement or undo the work of legislation by making a definition clause of their own. People cannot escape from the obligation of a statute by putting a private interpretation on its language’. The courts will always examine the real nature of the transaction by which it is sought to evade the tax.”

Advent Systems Ltd. v. Unisys Corpn. [925 F 2d 670 (3d Cir 1991)].

It was held that “Computer programs are the product of an intellectual process, but once implanted in a medium are widely distributed to computer owners. An analogy can be drawn to a compact disc recording of an orchestral rendition. The music is produced by the artistry of musicians and in itself is not a ‘good’, but when transferred to a laser-readable disc becomes a readily merchantable commodity. Similarly, when a professor delivers a lecture, it is not a good, but, when transcribed as a book, it becomes a good.

That a computer program may be copyrightable as intellectual property does not alter the fact that once in the form of a floppy disc or other medium, the program is tangible, movable and available in the marketplace. The fact that some programs may be tailored for specific purposes need not alter their status as ‘goods’ because the Code definition includes ‘specially manufactured goods’.

The topic has stimulated academic commentary with the majority espousing the view that software fits within the definition of a ‘good’ in the UCC.

Applying the UCC to computer software transactions offers substantial benefits to litigants and the courts. The Code offers a uniform body of law on a wide range of questions likely to arise in computer software disputes: implied warranties, consequential damages, disclaimers of liability, the statute of limitations, to name a few.

The importance of software to the commercial world and the advantages to be gained by the uniformity inherent in the UCC are strong polity arguments favoring inclusion. The contrary arguments are not persuasive, and we hold that software is a ‘good’ within the definition in the Code.”

Constitutional Law

​

Dr.Shanthi Rengarajan v the Oriental Insurance Company

2018-4-MLJ 368

Medi-claim- Writ petition is maintainable as against repudiation of mediclaim, when there is no disputed question of facts.

The National Federation of the Blind Maharashtra and anr. .. Vs. The High Court of Judicature of Bombay (Bombay HC- 03-05-2018)

The High Court on its administrative side falls within the definition of State as per Article 12 of Constitution of India. But, on the judicial side, it is an independent body and not fall within the definition of State.

Union Public Service Commission  Versus  M. Sathiya Priya and others (SC) [13-04-2018]

The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body, i.e., the Selection Committee.  The Courts have very limited scope of judicial review in such matters.

The Andhra Pradesh Industrial Infrastructure Corporation Limited and Others .v. S.N. Raj Kumar and Another (10-04-2018)

In the realm of Administrative Law ‘proportionality’ is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities and reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise – the elaboration of a rule of permissible priorities⁴. De Smith⁵ also states that ‘proportionality’ involves ‘balancing test’ and ‘necessity test’. The ‘balancing test’ permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations.

K.S.Puttaswamy and another V. Union of India and others –

2017-10-SCC 1

Right to Privacy is a basic fundamental right. It forms an intrinsic part of Article 21 and freedoms guaranteed under Part-III of the Constitution of India.

Rakesh Kumar Paul V. State of Assam – 2017-15 -SCC 67

In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of ‘default bail’ after 60 days in case charge-sheet is not filed.

Krishna Kumar Singh v. State of Bihar –  2017-3- SCC 1

Art.213 and 123- Re-promulgation of ordinances is constitutionally impermissible.

Pratibha Ramesh Patel Versus  Union of India & Ors. -2016-12-SCC-375

Having invoked a constitutional remedy before the High Court under Article 226 of the Constitution of India, the petitioner cannot, under Law, file another petition under Article 32 of the Constitution of India on identical set of facts for identical reliefs

Abhiram Singh V. C.D. Commachen (Dead) by LRs & Ors. – 2017-2-SCC-629

Seeking votes in the name of Religion, Caste or community amounted to corrupt practice as per Sec.123 of Representation of People Act.

Independent Thought Vs. Union of India and another -2017-10-SCC 800

Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not.

Shayara Bano V. Union of India and others – 2017-9-SCC 1

Talaq-e-biddat or Triple Talaq cannot be treated as essential religious practice merely because it has continued for long. Practice of Talaq-e-biddat or Triple Talaq thus delcared illegal and setaside.

Deena Vs Union of India – 1983-4-SCC 645

Hanging by Rope for executing Death Sentence is not violative of Article 21 of the Constitution of India.

Attorney General of India v. Lachma Devi – 1989 Supp(1)-SCC – 264

Execution of Death sentence by public hanging, held, violative of Article 21 being barbaric- Any Jail Manual providing for public hanging would be unconstitutional.

Municipal Council, Palai v. T.J. Joseph [AIR 1963 SC 1561] , Northern India Caterers (P) Ltd. v. State of Punjab [AIR 1967 SC 1581, Municipal Corpn. of Delhi v. Shiv Shanker [(1971) 1 SCC 442 : 1971 SCC (Cri) 195] and Ratan Lal Adukia v. Union of India [(1989) 3 SCC 537 : AIR 1990 SC 104] 

There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation.

Garnett v. Bradley [(1878) 3 AC 944 : (1874-80) All ER Rep 648 : 48 LJQB 186 : 39 LT 261 (HL)]

When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another.

A.G. v. Moore [(1878) 3 Ex D 276] , Ratan Lal case[(1989) 3 SCC 537 : AIR 1990 SC 104] and R.S. Raghunath v. State of Karnataka[(1992) 1 SCC 335 : 1992 SCC (L&S) 286 : (1992) 19 ATC 507 : AIR 1992 SC 81] 

The continuance of the existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that these has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred.

T.V. Vatheeswaran v. State of Tamil Nadu

Delay beyond two years in executing death sentence, held, violative of Article 21 of the Constitution of India.

Prem Shankar v. Delhi Administration

Handcuffing of under Trial prisoners is not normally permissible and the same is permissible only in exceptional cases.

Maneka Gandhi v. Union of India

Right to Travel is a part of personal liberty. Such personal liberty cannot be deprived without reasonable opportunity to show cause.

M.H. Hoskot v. State of Maharashtra – 1978-3-SCC 544

Court Shall forthwith furnish a free transcript of the judgment when sentencing a person to a prison term as per Art.21. – Where the prisoner is disabled from engaging a lawyer on his own, the State has to provide legal aid and the same is not charity, but a right flow from Art.21.

Murli S. Deora v. Union of India – 2001-8-SCC 765

Health Care- Smoking in public places is indirect deprivation of life without any process of law- Therefore non-smokers cannot be compelled to become helpless victims of pollution caused by cigarette smoke- Smoking, therefore, is prohibited in following public places.

M.Paul Anthony V. Bharat Gold Mines Limited and another – 1999-3-SCC 679

Payment of Subsistence allowance to an employee during his suspension linked to his right to Life under Art.21.

Civil Litigation

​2017-4-LW 523,  2009-5-Ctc 558, 2007-13-Scc 210 and 2014-9-SCC 445

Unilateral cancellation of Deed of  settlement is bad in law and against public policy

Vishwasrao Satwarao Naik & Ors.  Vs  State of Maharashtra (SC) (25-04-2018)

Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption

Shivaji Yallappa Patil Versus Sri Ranajeet Appasaheb Patil & Others (SC) [16-04-2018]

Specific Performance- Section 20– The possibility of injury to the interest of third party does not, by itself, disentitle the plaintiff from specific performance but it depends upon the facts and circumstances of each case which will be considered by the court in the exercise of its discretion. The court may properly exercise discretion to decree specific performance, in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

HARITA SUNIL PARAB VERSUS STATE OF NCT OF DELHI AND OTHERS -SC

Mere inconvenience of the petitioner is not a ground for transfer. The convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the
prosecution, other accused, the witnesses and the larger interest of the society.

Chhotanben and Anr. v. Kiritbhai Jalkrushnabhai Thakkar and Ors. – Supreme Court (10-04-2018)

The limitation for challenging the Sale Deed is not from the date of Sale Deed, but from the date of knowledge. Further, this kind of question of limitation is a triable issue and the same cannot be dealt in an application under Order 7 Rule 11 of CPC.

DANAMMA @ SUMAN SURPUR & ANR. VERSUS  AMAR & ORS – AIR-2018-SC- 721

Amended Section 6 of Hindu Succession Act will be applicable to pending suits instituted prior to the amendment as the rights have been crystallised in 2005 irrespective of the death of father-coparcener.

Anar Devi & Ors. v. Parmeshwari Devi & Ors. (2006) 8 SCC 656. 

Hindu Succession Act- Sec.6-Explanation 1 defines the expression ‘the interest of the deceased in Mitakshara coparcenary property’ and incorporates into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule. Subject to such carving out of the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption. A statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs.

PRAKASH & ORS. VERSUS PHULAVATI & ORS- 2016 2 SCC 36

The provisions of Hindu Succession Amendment Act, 2005 are prospective-Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law.

P. Dasa Muni Reddy v. P. Appa Rao, (1974) 2 SCC 725

Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one’s as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent.

Lachoo Mal v. Radhey Shyam, (1971) 1 SCC 619

The general principle is that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanctions the non-observance of the statutory provision is cuilibet licet renuntiare juri pro se introducto.(See Maxwell on Interpretation of Statutes, Eleventh Edn., pp. 375 and 376). If there is any express prohibition against contracting out of a statute in it then no question can arise of anyone entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy.

Indira Bai v. Nand Kishore, (1990) 4 SCC 668

The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter then it may be difficult to put estoppel as a defence. But if it is right of party alone then it is capable of being abnegated either in writing or by conduct.

Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 229

The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.

Mangalore Electricity Supply Company Limited Versus  M/s. AMR Power Private Limited & Anr.-2016  AIR(SC) 4397

Withdrawal of a Writ Petition without seeking permission to file a fresh Writ Petition would bar filing of a fresh Writ Petition. But there is no bar for taking a defence in a fresh round of litigation in respect of the same point involved in a suit which was withdrawn without seeking liberty.

Vohra Sadikbhai Rajakbhai & Ors. Versus State of Gujarat & Ors. -2016-12-SCC-1

An act of God is that which is a direct, violent, sudden and irresistible act of nature as could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted. Generally, those acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause will come under the category of acts of God. Examples are: storm, tempest, lightning, extraordinary fall of rain, extraordinary high tide, extraordinary severe frost, or a tidal bore which sweeps a ship in mid-water. What is important here is that it is not necessary that it should be unique or that it should happen for the first time. It is enough that it is extraordinary and such as could not reasonably be anticipated.

Banking

V.Sridhar v the authorised officer Indian bank  – 2018-1-LW 15

Merely by including a clause as is where is or as is what is condition in the sale notice does not obviate the bank from disclosing encumbrance- Auction purchaser entitled for refund

​Axis Bank Versus SBS Organics Private Limited And Another -2016 12 SCC 18

The partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre-deposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of The Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law.

Jagdish Singh Versus  Heeralal and others – 2014-1-SCC  479

The civil court jurisdiction is completely barred, so far as the “measure” taken by a secured creditor under sub- section (4) of Section 13 of the Securitisation Act, against which an aggrieved person has a right of appeal before the DRT or the Appellate Tribunal. to determine as to whether there has been any illegality in the “measures” taken.

Narayan Chandra Ghosh – VERSUS UCO Bank & Ors. – 2011-4-SCC-548

The requirement of pre-deposit under sub-section (1) of Section 18 of the SARFAESI Act is mandatory and there is no reason whatsoever for not giving full effect to the provisions contained in Section 18 of the SARFAESI Act.

M/s Madras Petrochem Ltd. & Anr. Versus BIFR & Ors. – 2016-4-SCC 1

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002   prevails over the Sick Industrial Companies (Special Provisions) Act, 1985 to the extent of inconsistency therewith.

NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479

The purchaser in an auction sale conducted by the official liquidator on “as is where is” and “whatever there is” basis was found not liable for payment of the electricity arrears.

Real Estate

Neelkamal Realtors Suburban Pvt. Ltd. and anr. Vs. Union of India and ors  -(2018) 1 AIR Bom R 558

The provisions of RERA are prospective in nature. The penalty under Sections 18, 38, 59, 60, 61, 63 and 64 is to be levied on account of contravention of provisions of RERA , prospectively and not retrospectively. These provisions, therefore, cannot be said to be violative of Articles 14, 19(1)(g), 20(1) and 300-A of the Constitution of India.

Consumer

Pratibha Pratisthan & Ors.  Versus  Manager, Canara Bank & Ors.-2017-3-SCC-712

On a plain and simple reading of all the above provisions of the Consumer Protection Act it is clear that a Trust is not a person and therefore not a consumer. Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act.

BUNGA DANIEL BABU  VERSUS  M/S SRI VASUDEVA CONSTRUCTIONS & ORS – 2016-8-SCC-429

A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression ‘consumer’ – Whether a person would fall within the definition of “consumer” or not would be a question of fact in every case

Charan Singh v. Healing Touch Hospital and Others –  (2000) 7 SCC 668

Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.

National Insurance Co. Ltd.  Vs. Hindustan Safety Glass Works Ltd. – 2017-5- SCC 776

The provision of limitation in the Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer’s claim.

Hindustan Construction Co. Ltd. v. State of Bihar and Ors. – (1999) 8 SCC 436

The law has been laid down by the Hon’ble Supreme Court, it is clear that if the bank guarantee is conditional, the beneficiary cannot have unfettered right to invoke the guarantee.

M/s. House of Dubary Vs. New Bank of India and others 1991(1) CPR 216 (NC).

Honble National Commission laid down that the rendition of accounts by the Bank and recovery of amount, as result of settlement of accounts are reliefs that can be obtained in a Civil Court and not in Consumer Forum.

M/s.Anand Lubricating & Pneumatic Systems Ltd. Vs. State Bank of India – 2003 (2) CPR 53

The bank was alleged to have failed to issue bank guarantee despite sufficient security and the complainant suffered financial loss. It was held that the non-issuance of bank guarantee despite security deposit with the bank would amount to deficiency in service and the complainant would be entitled to interest on that security amount.

Dilip Madhukar Kambli Vs. Nilesh Vasant Borkar and Ors 1991(1) CPR 571(SCDRC- New Bombay, Maharashtra).

The banker is supposed to safeguard the interest of the depositors when his amount is entrusted to the custody of the Bank and the Bank is liable to return the amount with interest. In the absence of any directions from the customer, no banker can unilaterally and arbitrarily transfer the money of a depositor from his account and deposit in the account of another customer. This amounts to deficiency in service by the bank.

A.R.Narayan Vs. State Bank of Hyderabad – 1992(1) CPR 534 (NC).

The refusal by the Bank to permit the complainant to further draw in his account under the cash credit facility does not amount to deficiency in rendering service when there are facts revealing that the complainant was in default in the repayment of his dues and he was having outstanding liabilities with some other Bank.

Environmental Law

Environmental Law, World Wide Fund-India v. Union of India, (2013) 8 SCC 234

Article 21 of the Constitution of India protects not only the human rights but also casts an obligation on human beings to protect and preserve a species becoming extinct, conservation and protection of environment is an inseparable part of right to life.

The State, as a custodian of the natural resources, has a duty to maintain them not merely for the benefit of the public, but for the best interest of flora and fauna, wildlife and so on. The doctrine of “public trust” has to be addressed in that perspective

M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 at page 407

The ancient Roman Empire developed a legal theory known as the “Doctrine of the Public Trust”. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public.

M.C. Mehta v. Union of India [(1987) 1 SCC 395 : 1987 SCC (L&S) 37]

The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.

Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647 at page 660

Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law.

Research Foundation for Science Technology National Resource Policy v. Union of India, (2005) 10 SCC 510 at page 518

The right to information and community participation for protection of environment and human health is also a right which flows from Article 21.

Subhash Kumar vs State Of Bihar And Ors –  1991 AIR SC 420

Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.

Animal Welfare Board of India vs. A. Nagaraj and Ors. (2014) 7 SCC 547

The Hon’ble Supreme Court prohibited Jallikattu and other animal races and fights. It was observed that the Bulls cannot be performing animals. (Note: Later on, Tamil Nadu Government has enacted Prevention of Cruelty to Animals Act (Tamil Nadu Amendment) Act, 2017, whereby amending the Central Act. So, this Judgment was nullified by the above said Act)

Indian Council for Enviro-Legal Action v. Union of India [(1996) 3 SCC 212] 

Once the activity carried on in hazardous or inherently dangerous, the person carrying on such activity is liable to make good losses caused to any other person by his activity, irrespective of the fact that he took reasonable care while carrying on his activity.