GUIDELINES FROM SUPREME COURT WITH REGARD TO THE COURT POWER IN ISSUING NON-BAILABLE WARRANT

The Hon’ble Supreme Court in order to check or obviate the possibility of misuses of an arrest warrant, issued guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts.

The Hon’ble Supreme Court in Raghuvansh Dewanchand Bhasin V State of Maharashtra.16 issued the following guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts –

(a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No.2 for issuing warrant of arrest and each such form is duly accounted for;

(b) Before authenticating, the Court must ensure that complete particulars of the case are mentioned on the warrant;

(c) The Presiding Judge of the Court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon;

(d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein;

(e) Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process;

(f) No warrant of arrest shall be issued without being entered in the register mentioned above and the concerned Court shall periodically check/monitor the same to confirm that every such process is always returned to the Court with due report and placed on the record of the concerned case;

(g) A register similar to the one in clause (e) supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution;

(h) Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long;

(i) On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned Police Station or the Officer In-charge of the concerned agency;

(j) The report on such warrants must be clear, cogent and legible and duly forwarded by a superior officer, so as to facilitate fixing of responsibility in case of misuse;

(k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in sections 78 and 79 of the code must be strictly and scrupulously followed; and

(l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

WHETHER AN ARBITRATION AGREEMENT CONTAINED IN AN UNREGISTERED INSTRUMENT WHICH IS NOT DULY STAMPED, IS VALID AND ENFORCEABLE?

Whether an arbitration agreement contained in an unregistered (but compulsorily registrable) instrument is valid and enforceable? An arbitration agreement in an unregistered instrument which is not duly stamped, is valid and enforceable? Held Yes.

The Court cannot act upon a document or the arbitration clause therein, if the document is unregistered and not duly stamped. But if the deficit duty and penalty is paid in the manner set out in section 35 or section 40 of the Indian Stamp Act, 1899 the document can be acted upon or admitted in evidence, the Supreme Court had ruled in SMS Tea Estates Pvt Ltd V M/s Chandmari Tea Co. Pvt. Ltd.15.  The Supreme Court provided the procedure to be adopted where the arbitration clause is contained in a document which is not registered (but compulsorily registrable) and which is not duly stamped:

(i)  The Court should, before admitting any document into evidence or action upon such document, examine whether the instrument/document is duly stamped and whether it is an instrument which is compulsorily registrable.

(ii) If the document is found to be not duly stamped, section 35 of Stamp Act bars the said document being acted upon. Consequently, even the arbitration clause therein cannot be acted upon. The Court should then proceed to impound the document under section 33 of the Stamp Act and follow the procedure under sections 35 and 38 of the Stamp Act.

(iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the Court or before the collector (as contemplated in section 35 or 40 of the Stamp Act), and the defect with reference to deficit stamp is cured, the court may treat the document as duly stamped.  

(iv) Once the document is found to be duly stamped, the Court shall proceed consider whether the document is compulsorily registrable. If the document is found to be not compulsorily registrable, the Court can act upon the arbitration agreement without any impediment.

(v) If the document is not registered, but is compulsorily registrable, having regard to section 16(1) (a) of the Act, the Court can de-link the arbitration agreement from the main document, as an agreement independent of the other terms of the document, even if the document itself cannot in any way affect the property or cannot be received as evidence of any transaction affecting such property. The only exception is where the respondent in the application demonstrates that the arbitration agreement is also void and unenforceable. If the respondent raises any objection that the arbitration agreement was invalid, the court will consider the said objection before proceeding to appoint an arbitrator.

(vi) Where the document is compulsorily registrable, but is not registered, but the arbitration agreement is valid and separable, what is required to be borne in mind is that the Arbitrator appointed in such a matter cannot reply upon the unregistered instrument except for two purposes, that is (a) as evidence of contract in a claim for specific performance, and (b) as evidence of any collateral transaction which does not require registration.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

JUSTICE, DELAY AND SUGGESTIONS BY THE SUPREM COURT

“Justice delayed is justice denied” is a well know legal maxim, meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all.  A simple statement but a very deep and profound one.  Our Hon’ble Apex Court had dealt with the aspect of delay in disposing civil cases and some remedial measures and suggestions to improve the situation.

The Hon’ble Supreme Court in Ramrameshwari Devi and ors. V Nirmala Devi and Ors14 have dealt with the aspect of delay in disposal of civil cases and some remedial measures and suggestions to improve the situation. According to the opinion of the Supreme Court the system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:

A. Pleadings are foundation of the claims or parties. Civil litigation is largely based on documents. It is the bounded duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.

B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the code. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.

C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.

E. The Courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed.

F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleading and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.

G. The principle of restitution be fully applied in a pragmatic manner I order to do real and substantial justice.

H. Every case emanates from a human or a commercial problem and the court must take serious endeavor to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice.

I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.

J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stage so the suit, right from filing of the written statement till pronouncement of judgment and courts should strictly adhere to the said dates and the said time tables as far as possible. If any interlocutory applications is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date for the main suit may not be disturbed.

According to the Hon’ble Supreme Court, if the aforesaid steps are followed the prevailing system of adjudication of civil courts is bound to improve.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

SUIT FOR DAMAGES AND PROOF

The terms damages may be defined as the monetary compensation payable by the defaulting party to the aggrieved party for the loss suffered by him. The aggrieved party may therefore bring an action for damages against the party who is guilty of the breach of contract. The primary aim of damages is to compensate the aggrieved party, and to place him in the same position which he would have occupied had the breach of contract not occurred. It may, therefore, be noted that the damages are given by way of compensation for the loss suffered by the aggrieved party, and not for the purpose of punishing the default party.

 In a suit for damages, the Plaintiff is required to prove the following:

(1) The existence of a concluded contract between the parties;

(2) There is a clear breach of the terms and conditions of the contract by the Defendants;

(3) That breach on the part of the defendant has caused certain losses to the plaintiff, giving rise to a claim to sue for damages;

(4) Proving the actual extent of losses suffered by the plaintiff directly attributable to the breach of the terms and the clauses of the contract by the defendant;

(5) Quantifying the damages and most importantly by mitigation of damages that is to say, a person claiming damages to claim only such extent of damages, which are actually suffered as an inevitable direct consequence of the breach of contract by the defendant even after the plaintiff had taken all possible prudent steps to minimize the extend of losses.

It is only if the plaintiff establishes the actual quantum of damages on the basis of the above principles, a suit for damages can be decreed by Courts and not otherwise.

 [The above as observed by the Courts in Venkatesh Construction Company, Bangalore V Karnataka Vidyuth Karkhane Limited, Bangalore, M/s Murlidhar Chiranjilal V Harishchandra Dwarkadas and Another, M.Lachia Setty and Sons Limited V Coffee Board, Bangalore and C.T Xavier V P.V Joseph] 13

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

CONDITIONS OF SERVICE TO REMAIN UNCHANGED DURING PENDENCY OF THE DISPUTE

Short article consist of the circumstances in which employer should not alter service conditions to the prejudice of the workmen, when an industrial dispute is/are pending.

Sub-section 1(a) of Section 33 of the Industrial Disputes Act, 1947 clearly provides “(1) During the pendency of any conciliation proceedings before a conciliation officer or a Board or of any proceedings before an arbitrator or a labour Court or Tribunal or National Tribunal is respect of an industrial dispute, no employer shall –

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or”

It is important to understand the features which must be present to attract section 33 (1) (a) or in other words features which must be present to attract the provision that employer should not alter to the prejudice of the workmen, when an industrial dispute is/are pending.

The Hon’ble Supreme Court in Bhavnagar Municipality V Alibhai Karimbhai and Others12 had provided features which must be present to attract section 33(1) (a) of the Industrial Disputes Act, 1947

(1) There is a proceeding in respect of an industrial dispute pending before the Tribunal.

(2) Conditions of service of the workmen applicable immediately before the commencement of the Tribunal proceeding are altered.

(3) The alteration of the conditions of service is in regard to a matter connected with the pending industrial dispute.

(4) The workmen whose conditions of service are altered are concerned in the pending industrial dispute.

(5) The alteration of the conditions of service is to the prejudice of the workmen.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

WHETHER COURT CAN INTERFER IN TRANSFER MATTERS

The Courts do not ordinarily interfere in transfer matters. But, transfer in contrary to the contract of services cannot be allowed. Consequently it is important to understand the law with respect to the transfer matters.

The Hon’ble Division bench of the High Court of Karnataka in Indian Telephone Industries V Prof. P.N Shetty11 had provided that an order of transfer can be challenged on the following grounds:

(1) The transfer is in violation of conditions of service or contract;

(2) It is actuated by malafide or actuated by some other ulterior motive not connected with the business interest of the management; and

(3) The transfer effects a change in the conditions of service by subjecting the employee to more onerous conditions.

The Hon’ble Supreme Court in Pearlite Liners Private Limited V Manorama Sirsi11a, held “unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates