Tuesday, 17 January 2017

When tenant will not be treated as willful defaulter?

Having considered the rival submissions, we are in agreement with
the view taken by the High Court that the evidence on record leaves no
manner of doubt that after receipt of notice from the appellant, the
respondent-tenant immediately rushed to the Rent Controller and took
permission to deposit the amount towards rent of the suit shop. Further,
in terms of the liberty given by the Rent Controller the respondent-tenant
deposited the amount towards rent of the suit shop before the Rent
Controller. That option was resorted to by the respondent-tenant because
of dispute relating to ownership of the suit shop. The High Court justly
adverted to the dictum in the case of Kannan vs. Tamil Tahlir Kalvi
Kazhagam (1998) 5 SCC 21
 - where, in similar situation, the tenant deposited the rent in
Court which was considered as a valid deposit. The fact remains that the

amount towards arrears of rent was deposited by the respondent-tenant
in the Court of Rent Controller on 15th April, 1988 and 25th April, 1988
before institution of the eviction application; and intimation in that
behalf was given to the landlord. The respondent-tenant continued to
periodically deposit the rent amount in Court thereafter. Further, the
appellant in his evidence has admitted of having withdrawn the rent
amount till Diwali 2003. This finding of fact recorded by the District
Court and affirmed by the High Court, being concurrent finding of fact,
need no interference. As a necessary corollary, it must follow that the
respondent-tenant was not a defaulter muchless willful defaulter. Thus,
the ground of default on which eviction of the respondent-tenant was
prayed is untenable.
Baburao s/o Narayanrao Terkar
Pokhardas s/o Bhanumal Khatnani 
Dated:August 16, 2016

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Sunday, 15 January 2017

What are essential requirement for valid arbitration agreement?

 A reading of the aforementioned sections in
juxtaposition goes to show that in order to constitute a
valid, binding and enforceable arbitration agreement,

the requirements contained in Section 7 have to be
satisfied strictly. These requirements, apart from
others, are (1) there has to be an agreement (2) it has
to be in writing (3) parties must sign such agreement
or in other words, the agreement must bear the
signatures of the parties concerned and (4) such
agreement must contain an arbitration clause.

24) In other words, aforementioned four conditions
are sine qua non for constituting a valid and
enforceable arbitration agreement. Failure to satisfy
any of the four conditions would render the arbitration
agreement invalid and unenforceable and, in
consequence, would result in dismissal of the
application filed under Section 11 of the Act at its
(ARISING OUT OF SLP(C) No. 13369 of 2013)
Shri Vimal Kishor Shah & Ors.
Mr. Jayesh Dinesh Shah & Ors
Abhay Manohar Sapre, J.
Dated:August 17, 2016.
Citation:AIR 2016 SC3889,(2016) 8 SCC788,2017(1) MHLJ

36 SC

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What are important principles relating disobedience of order of court?

Few facets of relevant considerations when breach of order is alleged and facet of defence available would emerge as under from above case law.
"(1) In the context of breach of order, the order can be void or nullity but, the consequences flowing from its non-compliance or breach cannot be avoided by the party by advancing the plea that such order is void or nullity.
(2) Void order has to be so declared. The party '... has to approach the Court for seeking such declaration...'
(3) The reason for requirement of nullity order to be challenged is, the Court may refuse to quash such order at the instance of the person who has challenged it or on the ground of delay or waiver or any such legal ground. Further, such void order may be void for one person and it may not be so far as another person is concerned.
(4) If breach of permanent injunction (O. 21 R, 32) vis-à-vis breach of interim injunction (O. 39 R. 2(a)) are compared, subsequent enforcement of decree in the former case and subsequent setting aside of the interim order in a later case insofar as the consequences flowing from these two situations are concerned, - would be different in the sense that in former case, it may happen that no further consequence would ensue but in later case the effect of breach would not be erased.
(5) In case when objection to the jurisdiction of the Court is raised and later on it is upheld even then, interim order passed therein by the Court does not become vulnerable or bad only on that ground.
(6) In case where objection is raised, it would be more proper if the objection of the jurisdiction is decided first. But if the Court happens to pass the order before deciding that, the prior interim order would not loose its efficacy only on that ground.
(7) The party cannot avoid consequence flowing or breach merely because the order is subsequently vacated in appeal.
(8) Generally speaking, punishment would differ from case to case. For instance, in case of solitary breach attachment of property may not be restored to. The Court may direct to detain the guilty person in civil prison or commit him for contempt.
(9) The Court's action for breach would extend also to the person who is not party to the proceedings.
(10) It is not rule of law that unless the contemner purges the contempt, the contemner cannot be heard. It is only rule of practice. In fact, it depends upon the facts and circumstances of case.
(11) In order to decide whether the contemner should be heard or not, the Court would consider how interest of justice would be better served and also the nature of breach i.e. whether it is gross or not etc."
Civil Application (for Direction) No. 6510 of 2015 in Civil Application No. 4112 of 2015 in Appeal From Order No. 8 of 2012
Decided On: 16.03.2016
 Natha Harji Halai and Ors.
Coram:R.D. Kothari, J.
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Whether court can exclude counter claim of defendant as per request of plaintiff?

 The principal question which is required to be considered is whether
the opposition of the plaintiffs to the counter­claim made by the defendant
No.1, carries any weightage and the counter­claim has to be excluded though
otherwise counter­claim can be permitted.  The provisions of Order 8 Rule 6C
of the Code of Civil Procedure read as follows:
“6­C.  Exclusion of counter­claim ­  Where a defendant sets up a
counter­claim and the plaintiff contends that the claim thereby
raised ought not to be disposed of by way of counter­claim but in
an independent suit, the plaintiff may, at any time before issues
are settled in relation to the counter­claim, apply to the Court for
an order that such counter­claim may be excluded, and the Court
may, on the hearing of such application make such order as it
thinks fit.”

The intention of the Legislature in incorporating Rule 6C of Order 8
of the Code of Civil Procedure is clear and suggests that the request made on
behalf   of   the   plaintiff   to   exclude   the   counter­claim,   has   to   be   given   due
weightage.   It is the cardinal principle in judicial proceedings that the party to
the proceedings has the inherent right to oppose any claim made by the other
party, even if there is no provision in the statute providing a right to the party
to   oppose   the   claim   of   the   other   party.     Therefore,   when   Rule   6C   is
incorporated in Order 8 of the Code of Civil Procedure, it is clear that the Court
is bound to consider the request of the plaintiffs.  Though the latter part of Rule
6C of Order 8 of the Code of Civil Procedure gives discretion to the Court to
pass appropriate orders on the application made by the plaintiffs requesting
that the counter­claim be excluded, the discretion will have to be exercised in
favour of the plaintiff.    The object of Rule 6C of Order 8 of the Code of Civil
Procedure appears to be based on the cardinal principle that the plaintiff is
dominus litis and it it is the right of the plaintiff to proceed with the civil suit in
the   manner   he   feels   proper   and   best   suited   for   proving   his   case.     If   the
defendant is permitted to make counter­claim, he gets the right to steer the
civil suit as per his wishes and in certain situations there may be a conflict
between the plaintiff and the defendant on the point as to how the civil suit
should proceed. 
If   the   provisions   of   Rule   6C   of   Order   8   of   the   Code   of   Civil
Procedure are not given the above meaning, but are construed to mean that the
request of the plaintiff to exclude the counter­claim is immaterial, then the
provisions   of   Rule   6C   of   Order   8   of   the   Code   of   Civil   Procedure   will   be
rendered nugatory. 
Abhishek s/o Vikram Boke, 

 Dr. Ashwinikumar Arvind Deshmukh,
DATED  :   24.6.2016.
Citation: 2017(1) MHLJ342
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