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Monday, April 25, 2011


Can a person claim damages after he had signed NO DUE CERTIFICATE? What if he has addition amounts due but he had signed in advance the ‘no due certificate’. Supreme Court decision provides simple principles on which an aggrieved party can claim damages in spite of issuing a ‘no due certificate’.
Contractor entitled for additional amount/damages as per terms of the agreement, merely because it had accepted final bill and issued no due certificate, it cannot be deprived of its right to claim damages if it had incurred additional amount and able to prove same by acceptable materials6.

The Apex court in R.L Kalathia & Co. V State of Gujarat6, provided the following principles:

(1) Merely because the contractor has issued “No Due Certificate”, if there is acceptable claim, the Court cannot reject the same on the ground of issuance of “No Due Certificate”.

(2) In as much as it is common that unless a discharge certificate is given in advance by the contractor, payment of bills are generally delayed, hence such a clause in the contract would not be an absolute bar to a contractor raising claims which are genuine at a later date even after submission of such “No-Claim certificate”.

(3) Even after execution of full and final discharge voucher/receipt by one of the parties, if the said party able to establish that he is entitled to further amount for which he is having adequate materials, is not barred from claiming such amount merely because of acceptance of the final bill by mentioning “without prejudice” or by issuing “No Due Certificate”.

Prepared by: S. Hemanth


Money claims are normally to be filed before the trial/Jurisdictional Courts. High Courts normally do not entertain writ petition to settle the money claims between parties. A Supreme Court decision provides principle governing the settlement of the money claims between parties by High Court under writ.

Normally money claims are not entertained in the writ petition, but the bar is not absolute.

Apex court in Godavari Sugar Mills Ltd V State of Maharashtra & Ors5, by referring to various other judgments, had made the following observations:

(1) Petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of breach of a contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in writ proceedings, in enforcement of statutory functions of the state or its officers. [Burmah Construction Co. V State of Orissa; AIR 1962 SC 1320]

(2) High Court will enforcing the fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realized by the Government without the authority of law. [Madhya Pradesh V Bhailal bhai; AIR 1964 SC 1006]

(3) Though writ of mandamus cannot be issued for refund of money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the collection of money was without the authority of the law and there was not case of undue enrichment, there is not good reason to deny a relief of refund to the citizens. [U.P Pollution Control Board V Kanoria Industrial Ltd; AIR 2001 SC 787]

(4) Where lis has a public law character, or involves a question arising out of public law functions on the part of the state or its authorities, access to justice by way of a public law remedy under Article 226 of the Constitution will not be denied. [Sanjana M Wig V Hindustan Petroleum Corporation Ltd; (2005) 8 SCC 242]

Prepared by: S. Hemanth


Can High Court interfere in the interlocutory orders passed by the trial court, under writ jurisdiction? Simple legal principles provided to understand scope and powers of High Court to interfere with the interlocutory orders of the trial Courts. Interlocutor order are the interim/provisions orders and not final.

In Surya Devi Rai’s case4, the Supreme Court after detailed analysis of the various precedents on the scope of the High Court’s powers under Article 226 and 227 of the Constitution culled out nine propositions including the following:

(2)  Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC (Code of Civil Procedure) Amendment Act, 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. 

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted (i) without jurisdiction – by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or action in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. 

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. 

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. 

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annual or set aside the act, order or proceedings or the subordinate courts by cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order if the subordinate Court as the Court should have made in the facts and circumstances of the case.

Prepared by: S. Hemanth


Whether Hearsay evidence: which is a statement based on information received from others is admissible. The legal reason for inadmissible of the Hearsay Evidence.

Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence3a.

Statement of witness based on information received from others is inadmissible3.

The Apex Court in Kalyan Kumar Gogoi V Ashutosh Agnihotri3, had provided reasons why hearsay evidence is not received as relevant evidence are:

(1) The person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility. i.e., every witness must give his testimony, under such circumstances, as expose him to all the penalties of false hood.

(2) Truth is diluted and diminished with each repetition, and

(3) If permitted, gives ample scope for playing fraud by saying “someone told me that………..”

Prepared by: S. Hemanth


Legal principles governing suits for declaration of tile and injunction against Government filed by persons, with respect to the title over the immovable properties on the ground of adverse possessions.

The Hon’ble Supreme Court in R.Hanumaiah & another V Secretary to Government of Karnataka, Revenue Department and others2, had provided simple guidelines to be followed by Civil Courts in a suit for declaration of title and injunction against Government on the ground of adverse possessions. 

Apex court held that a Court should necessarily seek an answer to the following question, before it grants a decree declaring title against the Government:

(1)  Whether the Plaintiff has produced title deeds tracing the title for a period of more than thirty years; or

(2)  Whether the Plaintiff has established his adverse possessions to the knowledge of the Government for a period of more than thirty years, so as to convert his possession into title. Incidental to this Court should also find

(3)  Whether the Plaintiff is recorded to be the owner of holder or occupant of the property in the revenue records or municipal records, for more than thirty years and what is the nature of the possession claimed.

In order to oust or defeat the title of the Government, a claimant has to establish:

(1)  A clear title which is superior to or better than the title of the Government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the Government.

(2)  To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation.  

(3)  Claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the Government.

Prepared by: S. Hemanth