For claiming payment of agreed amount, claimant need not prove any actual loss

Failure to make payment of compensation payable under contract is not equal to breach of contract.

   Paragraph 1103 of Halsbury's distinguishes between kinds of money payments. Damages, as dealt with earlier, are said to be distinguishable from debts and from a sum of money payable under a contractual liability to pay a sum on a given event. In fact, damages are sought to be distinguishable from compensation and from a penalty and from costs. In the present case, once we come to the conclusion that the amount awarded is not damages and for breach of contract, the petitioner-Niko has no case whatsoever to challenge the award. It will be also beneficial to consider Anson's on the Law of Contract, which, in Chapter 18, deals with actions to recover an agreed sum. The claim in that case was for a liquidated amount and the defendant was obliged under the contract to pay money. Although in that sense, it is said to be similar to specific performance, it is distinguishable and does not attract the same bar in law. The Law of Contract draws a clear distinction between a claim for an agreed sum and a claim for damages for breach of contract. The claimant need not prove loss where a claim is for payment of an agreed sum and remoteness of damages and mitigation of loss are irrelevant in such situations. In the instant case, the formula is meant to provide for such payment. The application of the formula is a matter which was before the tribunal and which the tribunal has considered. The formula was admittedly applicable being within the contractual scope and was not extraneously sourced. There is no question of any further proof of loss caused. [Para No.54]

Bar of period of limitation is a mix question of facts and law

Plaint can not be rejected on the ground of bar by limitation

   Whether plaint can be rejected under Order 7 Rule 11 of CPC if defendant claims the suit to be barred by limitations and disputes the time of accrual of cause of action?

Held:

   Plain can not be rejected under Order 7 Rule 11 of C.P.C. if accrual of cause of action as mentioned in the plaint is disputed to be beyond period of limitation.

   Genuineness of assertion in respect of accrual of cause of action is a mix question of facts and law.

Muslim mother is not guardian of minor's property

• Whether consent of mother is necessary to alienate property of minor?

• Whether father is required permission of District Court for alienating property of minor?

   Grand mother gave property to minor grandson as a gift - Father without consent of mother of minor and without permission of court executed agreement to sale with third-party - before execution of sale deed, minor attained majority - Notice for specific performance of agreement given to the owner who has attained the majority - suit for specific performance filed against owner who was minor at the time of execution of agreement to sale by his father - Trial court hold that father of the minor was the legal guardian, however, he did not have the authority to execute the agreement, as the defacto guardian was the mother - Suit dismissed - First appellate court reversed the judgment of trial court - Second appeal filed in High Court.

Held: Under Mohammedan Law the mother cannot act or be the guardian of the property of the minor. Consent or permission neither of mother nor of District Court is necessary for father, being natural guardian to alienate property of minor.

Retirement of one partner amounts to dissolution of partnership if there are only two partners

• Is retirement of partner and dissolution of partnership firm is the same thing?

• What the difference between retirement and dissolution?

• When retirement of partner amounts to dissolution of partnership firm?

 Sec.37 and 48 of The Partnership Act

   There is a clear distinction between ‘retirement of a partner’ and ‘dissolution of a partnership firm’. On retirement of the partner, the reconstituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement [See – Pamuru Vishnu Vinodh Reddy v. Chillakuru Chandrasekhara Reddy and Others, (2003) 3 SCC 445]. In the present case, there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm [See – Erach F.D. Mehta v. Minoo F.D. Mehta, (1970) 2 SCC 724]. [Para No.12]

Transfers during pendency of suit by a party to the suit is not void, such transfer is subservient to the decision in the suit.

What is the status of transaction and purchaser of property during the pendency of suit?

   It is settled legal position that the effect of Section 52 is not to render transfers effected during to pendency of a suit by a party to the suit void, but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to, or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court. The mere pendency of the suit does not prevent one of the parties to the suit from dealing with the subject matter of the suit. The Section only postulates a condition that the lis pendens alienation will in no manner affect the rights of the other party under any decree, which may be passed in the suit unless the property alienated with the permission of the Court.

When secondary evidence can be permitted to be adduced

In what situation secondary evidence can be permitted to be adduced? Does such permission amounts to proof of that document?

   Sec.65 and 66 of Evidence Act - Proof by leading secondary evidence - Original will deposited to revenue officers for registration - notice issued to revenue officers for production of original will - they failed - court rejected permission to allow secondary evidence observing that the pre-requisite condition of existence of Will is not proved, hence Will cannot be permitted to be proved by allowing the secondary evidence - Witness deposed “I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness.”

Disability Certificate is a public document which can not be doubted

 Motor Vehicle Accident Claim - how to appreciate Disability Certificate and how to fix quantum of compensation?

    Disability certificate issued by the Medical Board of Government Medical College is a public document, it cannot be doubted.

   The disablement certificate issued by the Medical Board of a Government Medical College is a public document. The disablement of 50% as in the certificate is to be supported by other evidence either documentary or oral for the purpose of strengthening the cause before an appropriate court of law.[Para No.24 & 25] 

    The law with respect to the grant of compensation in injury cases is well-settled. The injured is entitled to pecuniary as well as non-pecuniary damages. Pecuniary damages also known as special damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money whereas non-pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non-pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc.[Para No.9]

Weakness in the defense cannot be the basis to grant relief to the plaintiffs

Can weakness of defense be a ground to decree a suit?

   The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden can not be shifted on the defendants. [Para No.16]

Civil suit for declaration of nullity of Revenue Officers' order is maintainable

The land was recorded in the name of Government - Plaintiff is in possession and paying taxes - Defendant obtained order from revenue officer to the effect that defendant is the owner of that land - order is passed without issuing notice to plaintiff and without following due procedure and without following principals of natural justice - Defendant is taking advantage of the said order and trying to remove the plaintiff from the land - suit for declaration - bar to jurisdiction - Sec. 36, 36(A) and 36(B) of The Maharashtra Land Revenue Code.

   If the order is ultra virus the parties entitled to ignore it and to go to the Civil Court for declaration that the order is a nullity and no action should be taken against under that order, which would prejudice his right.[Para No.22]

  In view of the specific allegation that without following due procedure and without following principals of natural justice, the revenue authorities have passed the orders in favour of the defendant No.6/petitioner and further in view of the other reliefs prayed in the plaint, other than declaring the orders of the Revenue Officers as ultra virus, which are very well permissible in a civil suit, I do not find any merit in the present petition. Further I have no hesitation to hold that no infirmity of law or error has been committed by the learned trial Court while holding that the suit is maintainable. [Para No.23]

Mere service of notice would not give rise to a cause of action

Cause of action' implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. It has been interpreted to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. [Para No.20]

   As cause of action is the bundle of facts to examine the issue of jurisdiction it is necessary that one of the interlinked fact must have occurred in a place where the case has been instituted. All necessary facts must form an integral part of the cause of action. The fact must have direct relevance in the lis involved. It is not that every fact pleaded can give rise to a cause of action so as to confer jurisdiction on the Court in whose territorial jurisdiction it has occurred.[Para No.21]

Plaintiff must plead and prove specific instances of cruelty or intention of desertion for obtaining divorce

Section 13 (I) (i-a) clearly provides for grant of decree of divorce on the ground of cruelty which can be physical or mental.

Plaintiff in order to succeed in a suit for divorce on the ground of cruelty must plead and prove specific instances of cruelty or allege and prove such allegations, which if considered singularly or cumulatively make cohabitation impossible.Section 13 (i) (i-b) of Hindu Marriage Act 1955, on the other hand provides for grant of decree of divorce on the ground of 'desertion'. However, in order to seek decree of divorce on the ground of 'desertion', plaintiff must prove that he/she has been deserted for a continuous period of not less than two years immediately, preceding the presentation of the petition. Therefore, what implies from plain reading of Section 13 (i) (i-b) of Act 1955 is that defendant must have deserted petitioner for a continuous period of two years prior to the date of institution of suit. The aforesaid requirement can be termed as a necessary pre- condition for seeking a decree of divorce on ground of desertion. Therefore, it is imperative on the part of plaintiff to plead and prove that defendant has deserted plaintiff and has continued doing so uninterruptedly for a period of two years, prior to the institution of suit. Apart from aforesaid, the issue relating to separate living, (factum deserdendi) and intention of committing desertion (Animus deserdendi) have to be established.[Para. No.31]

Allegations made in plaint are vague and general and do not give specific instances of cruelty. Further allegation of cruelty alleged in plaint if considered either singularly or cumulatively do not lead to the conclusion that co-habitation is not possible.

No infirmity in the dismissal of suit for divorce.

Family Court has jurisdiction to award permanent alimony to Muslim wife while granting the decree of divorce in her favor

The point to be stressed is that the relief of maintenance whether to the wife or the children is incidental to the relief of 'dissolution of marriage'. Merely because 'The Dissolution of Muslim Marriages Act, 1939', does not mention that the Court is also having the jurisdiction or power to grant such relief, it cannot be said that the Court is not having the jurisdiction to grant it, if it is incidental, claimed and the Court finds it necessary to grant the same. Moreover, the right of maintenance given to wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father.

The law expects that the parties should not be driven to approach the different forums but in one forum itself they should be granted whatever reliefs to which they are entitled.[Para No.56]

   
The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage. In other words, the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding.[Para No.79]

   The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much an integral part of the decree of 'dissolution of marriage'. The Law contemplates that the husband has two separate and distinct obligations; (I) to make "reasonable and fair provision" for his divorcee wife and (ii) to provide "maintenance" for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.

   The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.

   When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.[Para No.80]

Gujarat High Court

Tarif Rashidbhai Qureshi

Vs.

Asmabanu Alimohmmad Idarbhai Qureshi

Decides on 19/03/2020

Tenant is not protected if he fails to pay rent after receipt of notice and during the trial as well as appeal proceeding

Maharashtra Rent Control Act - Eviction of tenant on the ground of default in payment of regular rent and illegal subletting - No rent is paid even after receipt of notice for eviction - Tenant disputed the standard rent but has not filed application for fixation of standard rent - Tenant made default in payment of regular rent in trial court and appellate court - Court commissioner report in respect of subletting filed but tenant has not filed his say thereon.

   The above enunciation, clarifies beyond doubt that the provisions of Clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in Clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterized by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of Clause (b), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently default during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months as is the case before us the Court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this Clause irrespective of the fact that by the time the Judgment was pronounced all the arrears had been cleared by the tenant.

{Mranalini B. Shaha and another Vs. Baplal Mohanlal Shaha (1980) 4 SCC 251} [Para No.16]

Insurance company not liable when vehicle is driven by unauthorized driver

Motor Vehicle Accident  Petition - Sec. 165, 168, 174, 149(2) of The Motor Vehicle Act - Accident by unauthorized driver - breach of policy - liability of Insurance Company

   Mere producing of valid insurance certificate, in respect of offending truck is not enough for the owner to make insurance company liable to discharge liability arising from rash and negligent driving by the driver of the vehicle. The insurance company can be fastened with the liability on the basis of the valid insurance policy only after basic facts are pleaded and established that the vehicle was not only duly insured but also that it was driven by anauthorized person having a valid driving license. The insurance company would become liable only after such foundational facts are pleaded and proved by the other side.

Photocopy of documents can not be impounded by civil court

Suit for eviction of tenant - tenant in his evidence produced photocopy of rent agreement - Landlord denied the same and objected - notice to produce the document was issued, but, landlord denied the very existence of rent agreement - document is not exhibited - Appellate court  impounded the photocopy of agreement to the payment of requisite stamp duty and penalty thereon and further ordered that after payment of the requisite stamp duty and penalty on the said document it be exhibited for the collateral purpose.

   Section 2(l) of the said Act, defines "instrument" and it reads as follows :

"instrument" includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded, but does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt;"

   A perusal of the said definition makes it clear that an "instrument" under the said Act is a document by which any right or liability is created or extinguished. Such a document would necessarily be the original of the said document and in this context, when Section 32(A) of the said Act is perused, it refers to "instrument" of conveyance, exchange, gift, etc. In a situation, where there is a short fall in payment of stamp duty, the Collector of the District has to give the parties concerned a reasonable opportunity of being heard and then determine the difference of amount of duty payable along with penalty and on payment of such amounts, "instrument" received shall be returned to the officer or the person concerned.

Better financial resources of a parent, though relevant, cannot act as sole criteria for determining the claim of the custody of the child

While considering the claim of custody of a child, the Court acts in parens patriae jurisdiction and is to be governed solely by the consideration of the welfare of the child. In claim of custody of a child, the claim of Guardianship under Section 6 of the Act or better financial resources of a parent or lack of any adverse material against a parent or the fact that the parent truly loves the child and has the welfare of the child in mind, though relevant, cannot act as sole criteria for determining the welfare of the child and consequently the claim of the custody of the child.[Para No.18]

No bar of res judicata to second suit for eviction of tenant

Landlord filed suit for eviction on the grounds of bona fide requirement, erection of unauthorized permanent structures, change of user, and unlawful subletting - Suit dismissed - Appeal  was also unsuccessful - After less than three months, the landlord issued a "notice for possession" to the tenant and again filed second suit for eviction on the grounds of bona fide requirement, arrears of rent, and permanent construction on the suit premises

Is the second suit stand barred by res judicata and Section  12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Bombay Rent Act")?

True, subsequent events may affect the suit outcome. For that, either party to the suit should bring to the court's notice those later developments. For that even the amended Order 6, Rule 17 of CPC provides. Otherwise, the court itself, in the interest of justice and to avoid multiplicity of proceedings, may take note of those developments. But law does not compel a person to invariably bring on record all the later developments through amendment. If the later developments provide an independent cause of action, the party's right to a fresh legal remedy remains intact. This proposition applies with more rigour if the cause of action is recurring.[Para No.54]

   Default in rent remittance provides recurring cause of action. Every successive default provides an independent cause of action.

Later developments may affect that cause of action if they are duly brought on record; otherwise, they provide further independent cause of action. Even the doctrine of lis pendens does not defeat the suitor's independent right to sue. It is only a matter of prudence and convenience that all the related facts are brought under one umbrella of adjudication. More particularly, if the cause of action is recurring, each instance of recurrence provides an independent cause of action.

Third party objector to execution of eviction decree, shall pay the arrears and rent to the landlord

   Eviction Suit - Decreed in favour of Landlord - Execution proceeding - Third party, who has been a witness in the original suit, obstructed execution under order 21 Rule 97 of C.P.C. - Such obstruction pertition dismissed - Appeal - Judgment Debtor Tenant directed to pay the compensation or mesne profits as a condition-precedent for staying the decree of eviction, the Tenant remained unresponsive.

The Court cannot go behind the language of the statute so as to add or subtract a word

   The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology, etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. The court cannot rewrite, recast or reframe the legislation for the reason that it has no power to legislate. [Para No.43] 

Rule of natural justice need not be observed where fraud or misrepresentation is played

Petitioner was appointed as Distributor of LPG - Submission of "Residence Certificate" was essential eligibility criteria for awarding the distributorship - Distributorship awarded to him -  Unfettered power to the Oil Company were given in the Dealership Agreement for termination, in case, any information found to be untrue or incorrect - Upon a complaint made by one of the unsuccessful complainants it was discovered that the furnished "Residential Certificate" to be false and incorrect - Oil Company, without issuing show cause notice terminated his distributorship. Therefore he claimed that absence of show-cause notice tantamount to absence of the opportunity of being heard and hence termination hits the soul of justice violating Article 14 of the Constitution of India and on this ground alone the said termination letter deserves to be quashed.

Held:

   A Contract is like a written form of the law or like a private legislation that legally binds the parties, hence the aforementioned clause derives utmost sanctity from the agreement. The doctrine of 'Pacta sunt servinda' governs the contractual relationship and the clauses of the contract are the law between the parties. This doctrine presupposes strict compliance of the terms enumerated in the termination clauses of the agreement, otherwise it destroys the sanctity of the contract and eludes the future performance. [Para No.17]

   Fraud and justice cannot go together. It is a settled law that "Fraud" vitiates every solemn act. In Lazarus Estate Ltd. v. Beasley, Lord Denning observed "No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker LJ observed that fraud "vitiates all transactions known to the law of however high a degree of solemnity.