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Wednesday, December 19, 2012

ILLEGAL AND UNAUTHORISED CONSTRUCTION AFFECT FUNDAMENTAL AND CONSTITUTIONAL RIGHTS, COURT ORDERED DEMOLITION OF ILLEGAL AND UNAUTHORISED CONSTRUCTION


The Supreme Court in a matter relating to the illegal and unauthorized constructions of buildings and other structures. Said, this Court has repeatedly emphasized the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions.

In Dipak Kumar Mukherjee Vs Kolkata Municipal Corporation & others, the Supreme Court emphasized that the illegal and unauthorized constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about the demolition of illegal/unauthorisedly constructed multi-storied structure raised by economically affluent people. The failure of the state apparatus to take prompt action to demolish such illegal constructions has convinced the citizen that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.

The appellant a resident of Kolkata. Succeeded before the learned single judge of the Calcutta High Court to order the demolition of unauthorized construction of multi-storied building by respondent No.7 (construction Co.) on the plot owned by the respondent No.8 but could not persuade the division bench to affirm the order of the learned single judge and consequently approached the Supreme Court.

The Supreme Court allowed the appeal and impugned judgement was set aside. The Court ordered demolition of the unauthorized constructions. A cost of Rs.25,00,000/- imposed for violating the sanctioned plan and continuance of illegal constructions despite ‘stop work notice’.

Prepared by: S. Hemanth

MATTERS BETWEEN EMPLOYER AND EMPLOYEE AND INCOME TAX RETURNS DETAILS ARE PERSONAL INFORMATION CANNOT BE DISCLOSED UNDER THE RTI ACT


While the Supreme Court deciding the question whether the Central Information Commissioner acting under the Right to Information Act, 2005 (RTI Act) was right in denying information regarding the third respondent’s personal matters pertaining to his service career  and also denying the details of his assets and liabilities, movable and immovable properties on the ground that the information sought for was qualified to be personal information as defined in clauses (j) of section 8 (1) of the RTI Act, in Girish Ramchandra Deshpande Vs Central Information Commissioner & others held

The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information” the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual.

It was further held, the details disclosed by a person in his income tax return are “personal information” which stand exempted from disclosure, unless involves a larger public interest.

In the present case the petitioner had sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The Supreme Court dismissed the petition on the view that the petitioner has not succeeded in establishing that the information sought for is for the larger public interest.

Prepared by: S. Hemanth

Monday, December 17, 2012

IN CHILD CUSTODY AND VISITATION RIGHTS MATTER, THE DESIRE, INTEREST AND WELFARE IS PARAMOUNT IMPORTANCE


While the Supreme Court deciding the question with regard to the custody of the children and visitation rights, if any, in Gaytri Bajaj Vs Jiten Bhalla  observed:


An order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. The desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.


The appeal was sought by the mother of two minor girls against the order of the Delhi High Court stating that she abandoned the visitation rights due to fraud and deceit practiced on her. The Supreme Court after having a personal interaction with children, to bring the issue with regard to custody and visitation rights to a satisfactory conclusion. Held, both appear to be happy in the company of their father who also appears to be in a position to look after them. The children having expressed their reluctance to go with the mother, even for a short duration of time.


The Supreme Court came to a conclusion that the children would continue to remain in the custody of their father until they attain the age of majority. Denied any visitation right to the mother and thereby upholding the order of the High Court.


Prepared by: S. Hemanth

Advocate at Hemanth & Associates

STUDENTS NOT TO JOIN, THE EDUCATION INSTITUTION WITHOUT RECOGNITION AND AFFILIATION


The institution that is engaged or interested in getting involved in imparting a course for training has to obey the command of law in letter and spirit. There cannot be any deviation. But, unfortunately, some of the institutions flagrantly violate the norms with adamantine audacity and seek the indulgence of the court either in the name of mercy or sympathy for the students or financial constraint of the institution or they have been inappropriately treated by the statutory regulatory bodies. None of this ground justice deviation. The Supreme Court said the High Court putting the blame on the statutory authority has granted relief to the respondent institution which is impermissible.


The Supreme Court in National Council for Teacher Education & Another Vs Venus Public Education Society & Others held:

“that without recognition from the NCTE and affiliation from the university/examining body, the educational institution cannot admit the students. An educational institution is expected to be aware of the law. The students who take admission are not young in age. They are graduates. They are expected to enquire whether the institution has recognition and affiliation. If we allow ourselves to say so, the institution had given admission in a nonchalant manner. Possibly, its functionaries harboured the idea that they had an incomparable fertile mind. The students who had taken admission possibly immersed with the idea that ignorance is a bliss. It is also necessary to state that the institution had the anxious enthusiasm to commercialize education and earn money forgetting the factum that such a attitude leads to a disaster. The students exhibited tremendous anxiety to get a degree without bothering for a moment whether their effort, if any, had the sanctity of law. Such attitudes only bring nemesis. It would not be wrong to say that this is not a case which put the institution or the student to choose between Scylla and charybdis. On the contrary, both of them were expected to be Argus-eyed. The basic motto should have been “transparency”. Unfortunately, the institution betrayed the trust of the students and the students, in a way, atrophied their intelligence. The institution decidedly exhibited characteristics of carelessness. It seems that they had forgotten that they are accountable to law. The students, while thinking “vision of hope”, chose to play possum. The law does not countenance either of the ideas. Hence, the plea propounded with anxiety, vehemence and desperation on behalf of the appellant is not acceptable and, accordingly we unhesitatingly repel the same”.


Prepared by: S. Hemanth

Advocate at Hemanth & Associates

Sunday, December 2, 2012

CONTEMPT OF COURT AGAINST A WOMAN FOR BREACHING UNDERTAKING TO DIVORCE


The Delhi High Court issued the contempt of court to the women for breaching her undertaking to a family Court to divorce her husband with mutual consent.

A contempt petition was filed under the provisions of the Contempt of Courts Act, 1971 by the petitioner (husband) to take action against the respondent (wife) for withdrawing from her undertaking given the Court, at the time of filing of the petition for mutual divorce, in the matrimonial Court.

The parties negotiated between themselves and with the intervention of the family friends, both arrived at a Memorandum of Understanding (MOU). They agreed to seek divorce by mutual consent. The petitioner (husband) paid a lumpsum of rupees Seven Crores to the respondent (wife), as a one time settlement in lieu of all the claims of the wife towards maintenance, alimony, istridhan, jewellery etc. The husband agreed to pay Rupees One crore Fifty Lakhs at the time of filing of the divorce petition to seek divorce by mutual consent and the balance amount was to be paid at the time of filing of the second motion. The wife also agreed to make a statement before the court in support of the divorce petition.

The petitioner (husband) said that his wife did not come forward to make a statement before the matrimonial Court on the second motion to obtain a divorce.

The Delhi High Court in Avneesh Sood Vs Tithi Sood  held:
“I, therefore, hold the respondent guilty of contempt of Court as she has breached her undertaking given to the learned ADJ-01, New Delhi on 14.09.2010 in the first motion divorce proceedings under section 13-B of the Hindu Marriage Act. The agreement arrived at between the parties not only deals with the aspect of divorce, to be obtained by mutual consent, but also deals with the aspect of custody/visitation rights of the minor child. Admittedly, the respondent has breached the said arrangement……”

The Court issued the contempt notice to the wife and was subjected to costs which was quantified at Rupees One Lakhs to be paid to the petitioner (husband).  

Prepared by: S. Hemanth

Tuesday, November 27, 2012

SCHOOL ACROSS THE COUNTRY DIRECTED TO PROVIDE BASIC INFRASTRUCTURE AND FACILITIES TO STUDENTS


A petition was filed by a registered charitable society, seeking various directions to improve the conditions of Government and aided school and also school run by the local authorities so that the constitutional objective of providing free and compulsory education under the Constitution of India would be a reality.


The Supreme Court in Environment & Consumer Protection Foundation Vs Delhi Administration & Others27 directed the schools across the country to provide basic infrastructure facilities like toilet facilities for boys and girls, drinking water facilities, sufficient class rooms, appointment of teaching and non-teaching staff, etc., if not already provided, within six months from the judgement (decided on 03.10.2012). It was held that the directions are applicable to all the schools, whether State owned or privately owned, aided or unaided, minority or non-minority.


Prepared by: S. Hemanth
Advocate at Hemanth & Associates 

Monday, November 26, 2012

DEATH DUE TO NEGLIGENT ACT OF A DOCTOR IS AN ACCIDENT – LIC TO PAY ACCIDENTAL DEATH BENEFITS


Does the negligent or rash act of a doctor which causes the death of his patient immediately, comes within the parameters of an accident?


The National Consumer Disputes Redressal Commission (NCDRC)  in Life Insurance Corporation of India Vs Narender Singh26 observed:


Death of a patient due to rash and negligent act of a doctor is an accident, making the victim entitled to the accidental death benefits from his or her insurer. The LIC was ordered to pay the accidental death benefits to the husband of the insured, who had died while being operated upon. The NCDRC held “..the injury to the life assured was an accident caused by outward, violent and visible means and therefore, the Life Insurance Corporation of India cannot be absolved from its liability to pay the accidental benefits to the complainant”.


The LIC had denied the accidental benefits to the complainant saying his wife death during the surgery was not an accident.


Prepared by: S. Hemanth

Thursday, November 22, 2012

COMMUNITY SERVICE AS PUNISHMENT IN ADDITION TO PRISON SENTENCE FOR DRUNKEN DRIVING


In a matter of BMW car hit case, where on the intervening night of 9/10.01.1999, an unfortunate motor accident took place involving BMW car. The BWM car driven by the accused in a drunken state, had caused the death of six human beings and one injured. Bodies were lying on the road unattended.


The Supreme Court in State Tr.P.S. Lodhi Colony New Delhi Vs Sanjeev Nanda25 , observed:


The convict should serve the community, especially in crimes relating to motor vehicles. Serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. The conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one’s action and inaction, human lives have been lost.


In the above case, the Supreme Court in addition to a prison sentence and fine held “the accused would do community service for two years which will be arranged by the Ministry of Social Justice and Empowerment within two months. On default, he will have to undergo simple imprisonment for two years”.


The question that arose for consideration was whether the respondent deserves to be held guilty of commission of offence under section 304 part II of the Indian Penal Code (IPC) or the conviction and sentences awarded to him by the High Court of Delhi, under section 304 A of the IPC should be held to be good and legally tenable. The Highest court held that the High Court committed an error in converting the conviction to section 304A of the IPC from that of 304 (II) IPC.

Prepared by: S. Hemanth
Advocate at Hemanth & Associates

Tuesday, November 20, 2012

WIFE RIGHT TO RESIDE WITH HER HUSBAND UNDER THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT


The Delhi High Court in Kavita Dass Vs NCT of Delhi & Another(24), held that a woman can never be charged with trespass if she insists on staying with her husband in a house taken on rent.


In the above case the wife had sought to quash FIR registered for criminal trespass. The Delhi High Court observed:


The legally wedded wife has a right to live with the husband, whether he lives in an ancestral house or own acquired house or rented house. If the husband does not allow the aggrieved wife, then by taking shelter of the Court under the provisions of the Protection of Women from Domestic Violence Act, the Magistrate may pass the order so that she may enter to the house or she would not be thrown out of the house of his husband without due process of law.  The wife cannot be directed to vacate the house without due process of law.


The High Court in the above matter, quashed the FIR registered under section 448 of the Indian Penal Code, 1860 and all the emanating proceedings therefrom. 

Prepared by: S. Hemanth

Sunday, November 11, 2012

STAY ORDERS AND ITS EXERCISE BY THE HIGH COURT, SUGGESTION MADE BY THE SUPREME COURT


Grant of stay orders in civil and criminal cases is part of  judicial proceedings and courts have been vested with inherent powers in this regard under the relevant provisions of the Code of Civil Procedure, 1908 and Criminal Procedure Code, 1973.

In a recent judgement in Imtiyaz Ahmad V State of Uttar Pradesh & Others23, the Supreme Court had the occasion to look into the issue of grant of stay orders by the High Courts during investigation or trial in criminal matters. The Supreme Court held:

“The authority of the High Court to order stay of investigation pursuant to lodging of FIR, or trial in deserving cases is unquestionable. But this Court is of the view that the exercise of this authority carries with it the responsibility to expeditiously dispose of the case. The power to grant stay of investigation and trial is a very extraordinary power given to High Courts and the same power is to be exercised sparingly only to prevent an abuse of the process and to promote the ends of justice. It is therefore clear that:

(i) Such an extraordinary power to be exercised with due caution and circumspection.

(ii) Once such a power is exercised, High Court should not lose sight of the case where it has exercised its extraordinary power of staying investigation and trial.

(iii) High Court should make it a point of finally disposing of such proceedings as early as possible but preferably within six months from the date the stay order is issued.

Prepared by: S. Hemanth

Friday, November 9, 2012

WHETHER A STUDENT IS A CONSUMER?


The National Consumer Disputes Redressal Commission had held that an education board is not a service provider and a student writing an exam is not a consumer.

The National Consumer Disputes Redressal Commission in University of Delhi Vs Mohd. A.M Abel Karim22 held:

“The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its “services” to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbided sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis- -vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. The Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer – scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service – provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. The Board is not a ‘service provider’ and a student who takes an examination is not a ‘consumer’ and consequently, complaint under the Act will not be maintainable against the Board”.

Prepared by: S. Hemanth
Advocate at Hemanth & Associates 

Monday, November 5, 2012

DEATH RESULT OF CRUELTY OR DEMAND OF DOWRY, DENIAL CANNOT BE TREATED AS DISCHARGE OF ONUS


In a case of dowry death,  accused were charged with offences under sections 498-A and 304-B of the Penal Code, 1860, the Supreme Court in Pathan Hussair Basha Vs State of A.P21 observed that the present case completely satisfied the ingredients of section 304-B and 498-A IPC. The Court further observed that it is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It is expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. Herein, prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgements of the courts under appeal.

The Supreme Court in Pathan Hussair Basha Vs State of A.P21, held:

“… the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of section 304-B. Where other ingredients of section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of section 304-B the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under section 304-B of the Code.

Applying these principles to the facts of the present case, it is clear that the ingredients of section 304B read with section 498A IPC are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgments of the courts under appeal”.

Prepared by: S. Hemanth

Sunday, November 4, 2012

PERSON CONVICTED UNDER S.138 N.I ACT (CHEQUE BOUNCE) CAN BE PROSECUTED UNDER S.420 IPC


A person tried earlier for the offences punishable under the provisions of section 138 of the Negotiable Instrument Act (for cheque bounce)  is not a bar for punishing under section 420 Indian Penal Code (IPC). Doctrine of Double Jeopardy not attracted. As observed in the Hon’ble Supreme Court decision in Sangeetaben Mahendrabhai Patel Vs State of Gujarat & Another20.

The Hon’ble Supreme Court in Sangeetaben Mahendrabhai Patel Vs State of Gujarat & Another20 held:


“Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of section 138 N.I Act and the case is sub judice before the High Court. In the instant case, he is involved under sections 406/420 read with section 114 IPC. In the prosecution under section 138 N.I Act, the mens rea i.e fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I Act can  only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.

There may be some overlapping in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.”

Prepared by: S. Hemanth

Saturday, November 3, 2012

CAN CRYPTIC MESSAGES CONSIDERED FOR FIR?


Can cryptic messages be considered as a First Information Report (FIR). FIR a written document prepared by the police when they receive information about the commission of a cognizable offence. HELD cryptic messages not FIR.

The Hon’ble Supreme Court in Anand Mohan Vs State of Bihar19 observed cryptic messages cannot be FIR.

Supreme Court in Binay Kumar Singh and others Vs State of Bihar [(1997) 1 SCC 283] held that the officer in-charge of the police station is not obliged to accept as FIR any nebulous information received from somebody which does not disclose any authentic cognizable offence and it is open to the officer in-charge to collect more information containing details of the occurrence, if available, so that he can consider whether a cognizable offence has been committed warranting investigation.

The Supreme Court in Sheikh Ishaque and Others Vs State of Bihar [(1995) 3 SCC 392], Gulabi Paswan gave a cryptic information at the police station to the effect that there was a commotion at the village as firing and brick batting was going on and this Court held that this cryptic information did not even disclose the commission of a cognizable offence nor did it disclose who were the assailants and such a cryptic statement of Gulabi Paswan cannot be treated to be an FIR within the meaning of section 154 Cr.P.C.

The Hon’ble Supreme Court in Anand Mohan Vs State of Bihar19 held “In our consideration opinion, therefore, the trial court and the High Court have rightly treated the subsequent typed written information lodged by PW-14 and not the wireless message as the FIR”.

Prepared by: S. Hemanth

Tuesday, October 30, 2012

DEPOSIT AMOUNT CAN BE FORFEITED AND NOT THE AMOUNT PAID TOWARDS PART PAYMENT OF THE SALE CONSIDERATION - SUPREME COURT RULING


Whether the seller is entitled to forfeit the entire deposit amount where the sale of an immovable property falls through by reason of the fault or failure of the purchaser. HELD yes by the Apex Court.

Whether the seller is entitled to retain the entire amount received towards earnest money or not. The fact that the purchaser was at fault in not paying the balance consideration was also not disputed. The question whether the seller can retain the entire amount of earnest money depends upon the terms of the agreement. The Hon’ble Supreme Court of India in Satish Batra Vs Sudhir Rawal  observed:

“Law is, therefore, clear that to justify the forfeiture of advance money being part of ‘earnest money’ the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance by the depositor. There can be converse situation also that if the seller fails to perform the contract  the purchaser can also get the double the amount, if it is so stipulated. It is also the law that party payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply”.

In the above case, the Supreme Court held that the seller was justified in forfeiting the entire amount of Rs.7,00,000/- as per the relevant clause, since the earnest money was primarily a security for the due performance of the agreement and, consequently, the seller is entitled to forfeit the entire deposit. 

Prepared by: S. Hemanth

Thursday, October 11, 2012

CAN LEGAL PRACTITIONER BE HELD LIABLE FOR FALSE LEGAL OPINION


Can a legal practitioner be held  liable for a legal opinion provided by him? In a matter CBI charge sheeted a legal practitioner and a panel advocate for the Vijaya Bank, who was arrayed as Accused No.6. The duty of the panel advocate was to verify the documents and to give legal opinion. The allegation against him was that he gave a false legal opinion in respect of 10 housing loans. HELD no primafacie case against the practicing lawyer was concerned.

The Hon’ble Supreme Court of India in Central Bureau of Investigation, Hyderabad Vs K Narayana Rao17 observed:

In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate’s work. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills.

A lawyer does not tell his client that he shall win the case in all circumstances. A surgeon cannot guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while understanding the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings, viz., (1) either he was not possessed of the requisite skill which he professed to have possessed, or, (2) he did not exercise, with reasonable competence in the given case, the skill which he did possess.

In Jacob Mathew Vs State of Punjab & Anr.17a the court observed, to determine whether the person charged has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

In Pandurang Dattatraya Khandekar Vs Bar Council of Maharashtra & Ors.17b the court laid, that there is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.

Therefore the Supreme Court held that the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank.

Prepared by: S. Hemanth
Advocate at Hemanth & Associates