Common Law

In a Case before it, the Hon’ble Apex Court had the occasion to reiterate that: “Truth is the foundation of Justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty”. (AIR 2012 SC 1727) Notwithstanding, holy pronouncements such as above, Parties to the litigation play tricks, invent false and fabricated Cause of action, makes evasive and ambiguous replies, distort and suppress facts and documents that are prejudicial to their Case. Nevertheless, the Law has answer to every trick. The Civil Procedure Code, that is, the CPC, provides a fascinating tool to discover the Truth of the matter. The CPC, under Order XI, provides for Discovery of “Truth” by production of documents and Discovery by putting up Interrogatories. Discovery means the act of revealing or disclosing any matter by a Defendant in his a...

In various rulings of NCLT and NCLAT, while deciding Section 9 Petition under IBC, a view is taken that “Settlement Agreement” do not constitute “Operational debt” within the meaning of Section 5(21) of IBC. (The latest ruling appears to be of Trifigura India Pvt Ltd versus TDT Copper Ltd. NCLAT Order / Judgment dated 15.9.2022, passed in Company Appeal (AT) (Insolvency) No. 742 of 2020) With greatest respect to the Learned Members at the Bench, all such rulings are ex-facie erroneous. 1.        Section 5(21) of IBC says Operational Debt "means a “Claim” and then sets out the class of debts that are considered as “Operational debts”. What is covered are (1) claims in respect of the provision of goods or services (2) claims in respect of Employment and (3)   A debt in respect of the payment of dues arising under any law payable to the Central Government, any State Government or any local authority. 2.        Now the C...

This Court is pained to observe the manner in which the Corporation functions and deals with individuals who are economically weak and not so literate, and who are unfortunately compelled to incur additional expense of obtaining Court Orders, only due to the careless manner in which the Corporation discharges its duties. This is “judicial notice / observation” of “matter of a common knowledge” of “ill treatment being meted out by officers of Mumbai Municipal Corporations to poor and illiterate section of the Society. [WP (L) No.3180 of 2019] The “Judicial notice of fact” implies that, a fact which is otherwise all pervasive yet elusive, attains the status of judicial recognition of its existence. A litigant who knocks the doors of Justice, are require to prove their Case, by leading evidence, to claim judgment in their favour. The Courts and the Judges too are anxious to hand out justice, in the very real sense of the term. Therefore, in the administration and dispensation of ju...

Can we Claim it in existing legal framework ? The property tax is a kind of impost / tax levied by Local bodies / Municipalities, upon lands and buildings, situate in their territorial jurisdiction. Due to the peculiar nature of tax, the property tax are regarded as “rate”, and not as “tax” or “fee”. The Apex Court in a case before it (AIR 1963 SC 1742), had the occasion to distinguish the rate from tax or fee, wherein it was stated that rate is an hybrid of tax and fee, as it has the elements of both, and is more in the nature of compensation paid for the services availed, although not directly attributable to the measurable benefits of the services availed. The first elementary principle which governs any Municipal taxation is – the Tax levied by Municipal Corporation / Local bodies are compensatory in nature. Municipalities levy taxes under respective State legislations. In area of Municipal taxation, the State Govts do not enjoy the same freedom and latitude as otherwise bein...

1.  Order XIV of CPC, 1908, deals with Issues. Sub Rule (4) of Rule 1 of Order XIV, says: Issues are of two kinds: (a) Issues of Fact; (b) Issues of Law. Don’t know who is the genius who has formulated this third term: mixed question of law and fact. 2.  This third category of “mixed question of fact and law”, actually doesn’t exist, and is thoroughly misconceived. The Courts, it is observed, are quite reluctant in deciding the legal proceedings, at the threshold, ordinarily on the grounds that the “Plea” agitated is a mixed question of law and fact. Let us try to comprehend the vagueness of this expression. 3.  A fact is composed of Law. A fact can never be looked upon in isolation to Law. That is to say, an assertion of a fact must be in consonance to the mandate of Law; and a factual assertion must derives its legitimacy from Law itself. 4.  Whence one say that a plea / assertion of a fact raises a mixed question of law and fact, he / she appears to be saying that...

Any Litigation hinges on Facts and Facts alleged are require to be proved. A fact is proved by Evidence. Evidence is that which makes the fact asserted - clear and evident, demonstrative and established. The word evidence in its relation to law includes all the legal means, exclusive of mere arguments which tend to prove or disprove any fact, the truth of which is submitted for judicial investigation. Facts are state of things such as events, circumstances, acts and omissions, capable of being perceived by the senses; state of mind, i.e. intentions of dishonesty, fraudulently; negligence; ill will etc. or of good faith; state of law, and such forth. According to Section 3 of Evidence Act 1872, Evidence means and includes  all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry (oral evidence; and   all documents including electronic records produced for the inspection of the Court (documentary evid...

“The Petitioners have been able to make out a strong prima facie Case”, said the Court; or, “the Respondents have been able to show reasonable defense or the existence of a dispute”. We do find such observations of Courts at the stage of Admissions of matters, like in Writ jurisdiction, or during applications for urgent interim reliefs in Suit proceedings, hearings in Summons for Judgment in Summary Suits, and qua “existence of dispute”, u/s 8(2)(a) of the Insolvency and Bankruptcy Code, 2016. These expressions assumes critical significance, because, based on the legal import of these expressions, the Courts ventures to grant decisive interim reliefs at interim stage of the litigation; and in fact, also finally decide the lis, under various jurisdictions. The Courts in such jurisdictions, endeavour to strike a delicate balance between two rival and elementary legal principles: (a) a party must have full opportunity to defend the allegation made against it, before subjecting it to...

Section 11 of Maharashtra Ownership of Flats Act, 1963, (MOFA) r/w Rule 9 of MOFA Rules, 1964, obligates upon Developers to execute conveyance in favour of the Society within four months from the date on which the co-operative Society is duly constituted. The Conveyance to Housing Societies and other Societies, is a pressing issue in Mumbai; and rest of India may not be an exception. The Developers do not Convey land to in favour of Societies to retain control over the administration of the Building; and probably to claim further development rights over the said land, which may accrue in future. The Hon’ble Bombay High Court in the Case of Ratna Rupal CHS [2011 (5) BCR 561, also referred in 2015 (5) MhLJ 318, 2016 (5) MhLJ 102] have made some very interesting observations: Para 10: The Conveyance had to be executed within the specified period. The conveyance was not executed for a number of years. The Plaintiff (Society) must be taken to have had full title in the en...