Whether non-voluntary transfer of ownership from defaulting borrower to the Bank under SARFAESI proceedings will result in assigning contractual rights under the Maintenance Agreement?

Cannes has argued that since the Sale Deed between TDI and Surya makes a reference to the Maintenance Agreement, combined with the fact that the Bank has admittedly stepped into the shoes of Surya, leads to the conclusion that such rights of the previous owner stands assigned to the new one. The Court is however unable to accept such an argument.

10. Replacing the owner of the property does not ipso facto lead to the conclusion that the Bank would also be bound by the Maintenance Agreement, which is a separate and a distinct agreement, executed between Surya and Cannes for availing CAM services for one unit in TDI Mall. Unarguably, the obligations and rights flowing from this agreement were distinct from those flowing from the Sale Deed, and cannot be jumbled together for the purpose of reading a privity of contract where there is none.

11. A party cannot be subjected to obligations of a contract to which it is not a party. A stranger or a third party cannot be bound if there no is assignment of contractual rights and liabilities. Certainly, the non-voluntary transfer of ownership from Surya to the Bank under SARFAESI proceedings does not result in assignment of contractual rights under the Maintenance Agreement. The burden of the liability acquired by Surya under a separate Maintenance Agreement, cannot be foisted on the Bank just because it has become the owner of the property. Surya’s liability under the Maintenance Agreement is not attached to the immovable property, even if it was in relation thereto. A mere general reference in the erstwhile Sale Deed to the Maintenance Agreement is insufficient to bind the Bank to the arbitration agreement contained in the Maintenance Agreement.

12. The Maintenance Agreement in its recital, does provide that it shall also bind the parties’ nominees, administrators, legal representatives and the assignee. Thus, the pertinent question is whether the Bank is an assignee under the Maintenance Agreement or not? There is no document on record to show that Surya had specifically assigned its rights and obligations, either in rem or specifically under the Maintenance Agreement, in favour of the Bank. In fact, Cannes also does not deny this fact. No averment has been made to any other document to urge that it would constitute as assignment of Surya’s rights to the Bank under the Maintenance Agreement. The court is thus unable to assume the existence of any assignment of rights. In order to be bound by the terms of the agreement, including the arbitration clause, the assignment of such rights has to be necessarily shown, by way of make a binding agreement between the parties. This is a pre-requisite to bind the Bank to arbitration.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Date of Decision: 07th October, 2021 

ARB.P. 591/2020

 CANNES PROPERTY MANAGEMENT SERVICES PRIVATE LIMITED Vs ALLAHABAD BANK 

 CORAM: HON'BLE MR. JUSTICE SANJEEV NARULA

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Whether transferee of immovable property can obtain execution of a decree even though decree was not assigned to him?

 Thus, the Law Commission recommended amending Order XXI Rule 16 to clarify that it does not affect the provisions of Section 146 and that a transferee of rights in the subject matter of the suit can obtain execution of a decree without separate assignment of the decree. The objective appears to be to not have multifarious proceedings to determine the issue of assignment, but to determine the issue of assignment in the execution proceedings itself.

26. In the conspectus of the aforesaid we are of the view that the objective of amending Order XXI Rule 16 of the CPC by adding the Explanation was to deal with the scenario as exists in the present case, to avoid separate suit proceedings being filed therefrom and to that extent removing the distinction between an assignment pre the decree and an assignment post the decree. Thus, what has been discussed even in the judgment in Jugalkishore Saraf (supra) as a view based on the equitable principle was sought to be incorporated in Order XXI Rule 16 of the CPC by adding the Explanation, something which had not been done earlier. Once the legislative intent is clear, and the law is amended, then the earlier position of law cannot be said to prevail post the amendment and it is not in doubt that the present case is one post the amendment.

27. We may further add that while considering the divergent views of the High Courts, the Law Commission took note of the fact that two different interpretations of Jugalkishore Saraf (supra) had been adopted. Thus, the Law Commission really sought to clarify the legal position so that the conflicting interpretation of the Supreme Court judgment would not survive. The Explanation clearly stipulates that nothing in Order XXI Rule 16 of the CPC would affect the provisions of Section 146 and the transferee of the right in property which is subject matter of a suit may apply for execution of the decree without separate assignment of the decree as required by law. No doubt the appellants are not parties in the suit proceedings but they claim as assignees of the decree holder.

Supreme Court

JUSTICE Sanjay Kishan Kaul JUSTICE B.R. Gavai

VAISHNO DEVI CONSTRUCTION Rep. Thr. Sole Proprietor (D) Thr. LRs & Anr. Vs. UNION OF INDIA & ORS.

CIVIL APPEAL NO. 18278 OF 2017

21st October 2021

Author: SANJAY KISHAN KAUL, J.

Citation: 2021 ALL SCR 2335

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Supreme Court: Bar On Transfer/Assignment Of Agricultural Land To Non-Agriculturist is Applicable To Testamentary Disposition Also

The questions that arose for consideration and

the circumstances in which the matters were referred to it were set out by

the Division Bench as under:-.

“We are called upon to decide as to whether Section 63 of

the Bombay Tenancy and Agricultural Lands, Act, 1948

(for short ‘the Bombay Tenancy Act’) debars an

agriculturist from parting with his agricultural land to a

non-agriculturist through a “Will” so also, whether Section

43(1) of the Tenancy Act restricts transfer of any land or

interest purchased by the tenant under Sections 17B, 32,

32F. 321. 320, 32U, 33(1) or 88E or sold to any person

under Section 32P or 64 of the Tenancy Act through the

execution of a Will by way of testamentary disposition.

Learned Single Judges of this Court have taken a

consistent view that such transfer of property through

testamentary disposition would not violate Section 43 or

63 of the Tenancy Act.

31. If the provisions referred to in Section 43 of the Act and allied

provisions are considered in light of the settled principles extracted earlier,

it emerges that the primary concern of those provisions is to see that the

legislative scheme of granting protection to persons from disadvantaged

categories and conferring the right of purchase upon them, and thereby

ensure direct relationship of a tiller with the land. The provisions, though

lay down a norm which may not be fully consistent with the principles of

Indian Succession Act, are principally designed to attain and sub-serve the

purpose of protecting the holdings in the hands of disadvantaged

categories. The prohibition against transfers of holding without the

previous sanction of the concerned authorities, is to be seen in that light as

furthering the cause of legislation. Even if by the process of construction,

the expression “assignment” is construed to include testamentary

disposition, in keeping with the settled principles, the incidental

encroachment cannot render the said provisions invalid. In pith and

substance, the legislation and the concerned provisions are completely

within the competence of the State Legislature and by placing the

construction upon the expression “assignment” to include testamentary

disposition, no transgression will ensue.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2573 OF 2020

VINODCHANDRA SAKARLAL KAPADIA Vs  STATE OF GUJARAT 

Uday Umesh Lalit, J.

Dated:June 15, 2020.

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Whether transferee landlord is entitled to get arrears of rent which accrued prior to transfer of tenanted premises?

In view of the cases referred to above, in our opinion, the correct position of law is that a transferee is not entitled to recover the arrears as rent for the property on transfer unless the right to recover the arrears is also transferred. If right to recover the arrears is assigned, then the transferee/landlord can recover those arrears as rent and if not paid maintain a petition for eviction under the rent laws for those arrears as well. Since in this case we have found that there was an assignment of right to recover the arrears in favour of the respondent transferee he was entitled to recover the same as arrears of rent. 

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5485-86 of 1993

Decided On: 04.08.2003

Shaikh Noor  Vs.  G.S. Ibrahim (Dead) by Lrs.

Hon'ble Judges/Coram:

R.C. Lahoti and Ashok Bhan, JJ.

 Citation : AIR 2003 SC 4163

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Whether court can allow application if it is made under wrong provision of law?

According to us, the application was wrongly filed under
Order I Rule 10 CPC and it should have been filed Order XXII
Rule 10 CPC which reads thus:
“ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY
OF PARTIES
xxx xxx xxx
10. Procedure in case of assignment before final order in
suit.(
1) In other cases of an assignment, creation or
devolution of any interest during the pendency of a suit,
the suit may, by leave of the Court, be continued by or
against the person to or upon whom such interest has
come or devolved.
(2) The attachment of a decree pending an appeal
therefrom shall be deemed to be an interest entitling the
person who procured such attachment to the benefit of
subrule
(1).”
8. It is well settled law that mere mentioning of an
incorrect provision is not fatal to the application if the power to
pass such an order is available with the court.

NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10521 OF 2013

PRUTHVIRAJSINH NODHUBHA JADEJA  Vs  JAYESHKUMAR CHHAKADDAS
SHAH 
Deepak Gupta, J.

Dated:October 04, 2019
Citation: (2019) 9 SCC 533

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Whether landlord can seek eviction decree if tenant has subletted tenanted premises without consideration?

Even otherwise it was pointed out on behalf of the respondents that the eviction does not follow a finding of sub-letting in stricto sensu. It follows the finding that there is an illegal transfer in any other manner. The words "transferred in any other manner" in Section 13(1)(e) has been considered widely and will include gratuitous transfer and transfer without consideration. The Gujarat High Court in Sheth Jivaji Rajbhai & Sons v. Patel Hatimbhai Nazarali 1999 Bom.R.C. 409 has observed in para. 17 as follows:

17. In my view, the words `transfer in any other manner' in Section 13(1)(e) are definitely wider and such transfer will include gratuitous transfer and transfer without consideration. Consequently, if landlord places reliance upon the transfer or assigned tenancy rights by tenant-in-chief in other manner he need not prove existence of valuable consideration for such transfer as is required to be proved for illegal sub-letting. Thus, the trial Court was justified in decreeing the suit on grounds of illegal assignment or transfer of interest in the tenancy by tenant-in-chief to the defendant No. 2.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3221 of 2001

Decided On: 04.10.2007

 Vijay K. Gupta Vs. Nalini Varjeevandas Shah and Ors.

Hon'ble Judges/Coram:

S.A. Bobde, J.

Citation: 2008(2) MHLJ 24

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Whether there can be valid assignment of arbitration agreement?

This Court in the case of Bestech India Private Ltd. v. MGF Developments Ltd.(2009) 161 DLT 282, held that if a Contract is assignable, an Arbitration Clause will follow the Assignment of the Contract. This judgment was followed by the Bombay High Court in DLF Power Limited v. Mangalore Refinery & Petrochemicals Limited 2016 SCC OnLine Bom 5069.

17. Rajasthan High Court in Aerens Goldsouk International Co. Ltd. v. Samit Kavdia2009 (1) R.A.J. 128 (Raj), relying upon Russell on Arbitration held that an Arbitration Agreement will bind not only the actual parties to it, but also an assignee of a Contract containing it.

22. In view of the above, in my opinion, the Assignment Deed transferred all rights, including the right to seek Arbitration, from respondent no. 3 to the petitioner and the Sole Arbitrator has failed to exercise the jurisdiction vested in him under the Arbitration Agreement. The Impugned Award is, therefore, liable to be set aside.

In the High Court of Delhi at New Delhi

(Before Navin Chawla, J.)

Kotak Mahindra Bank v. Mr. S. Nagabhushan 

OMP (COMM) 341/2017

Decided on January 24, 2018,

Citation: 2018 SCC OnLine Del 6832

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Whether registered deed of assignment is public document?

 The Section 74 of the Indian Evidence Act, 1872 describes which documents would form public documents. The sub-section (1) thereof provides that the documents forming the acts, or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country are the public documents whereas the sub-section (2) of Section 74 provides that the public records kept in any state of private documents are also public documents. Merely because the public records kept in the state of private documents are defined as public documents under Section 74 of the Evidence Act, that itself would not amount to contend that any document executed between two or more parties by itself would form a public document. The record pertaining to such document kept by the State though in the form of public record may form a public document, any such private document by itself cannot constitute to be a public document and it will continue to be a private document executed by the private parties. As such document would be a document enumerated under Section 75 of the Indian Evidence Act. Being so, merely because the deed of assignment is registered with the competent authority that deed itself would not partake the nature of a public document and it will continue to be a private document. A record relating to the execution of such deed maintained by the State however may be a public document bearing in mind the provision of law comprised under Section 74 of the Indian Evidence Act. Being so, the contention that the deed of assignment is a public document and therefore the petitioner would be taken by surprise by production of such document is to be rejected as being totally devoid of substance.

IN THE HIGH COURT OF BOMBAY

W.P. No. 5832 of 2004

Decided On: 20.09.2004

 Purushottam Vs.  A.N. Jog and Ors.

Hon'ble Judges/Coram:

R.M.S. Khandeparkar, J.

Citation: 2005(1) MHLJ 426

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Whether Arbitration Clause can be assigned?

As per Section 7 of the Act, every arbitration agreement has to be in writing between the parties. It also has to be signed by the parties. In the present case, there is no arbitration agreement signed between the Petitioner and M/s Yasikan Enterprises Pvt. Ltd. The company was not awarded the contract. The offer was submitted by M/s Yasikan Enterprises as a sole proprietary firm. It was signed by Mr. Jagdish Kumar as the sole proprietor.

The company being a distinct legal entity from the sole proprietorship, the arbitration clause, does not apply devolve upon the company. Moreover, the arbitration clause is an independent clause which is not assignable. This is clear from a reading of Delhi Iron and Steel Company Limited (Supra).

“17. So far as the arbitration clause is concerned it was held that this contract is personal in its character and incapable of assignment on that ground. However it is a settled law that an arbitration clause does not take away the right of a party of a contract to assign it if it is otherwise assignable.

18. While distinguishing between two clauses of assignment the Supreme Court observed that a right of obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. In other words, rights under a contract are assignable unless the contract is personal in its nature or the rights are incapable of assignment either under the law or under an agreement between the parties.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision:16th October, 2018

 O.M.P. 639/2008, I.As. 8293/2018 & 8294/2018

GOVT OF N.C.T OF DELHI Vs M/S YASIKAN ENTERPRISES PVT. LTD 

CORAM:

JUSTICE PRATHIBA M. SINGH

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Whether decree will be extinguished even if there is no assignment of right?

The learned Trial Court was seized of the fact that the petitioners had taken a stand that the respondents had attempted to interfere in the property bearing Survey No. 6 in the village Potrem admittedly forming a part of the mining concession but was clearly swayed with the plea taken by the respondents that subsequent to the passing of the decree dated 26/11/1997, there were Agreements executed between the parties and to hold that whatever rights accrued in favour of the petitioners as decree holders pursuant to the decree were waived and acknowledging the rights of interference of the respondents including the survey number in question which was the subject matter of the execution proceedings.

6. It appears from the tenor of the impugned order that the Trial Judge was impressed by the execution of the Agreements of raising and sale entered into between the parties and in that context totally fell in error to hold at paragraph 17 that the petitioners had subsequent to the passing of the decree assigned its interest in the subject matter forming a part of the decree in question in favour of the respondents. There was no justification for such a finding by the learned Trial Judge when there was no Agreement nor any clause incorporated in the raising and sale Agreements that the petitioners were waiving their rights to the decree in their favour and/or that they were assigning their rights in the property in question in favour of the respondents.

7. I find merit in the contention of Shri S.D. Lotlikar, learned Senior Advocate for the petitioners that there was no acquisition of surface rights by the respondents and which tantamounted to acts of trespass thereby entitling the petitioners to seek the assistance of the Court by recourse to the execution proceedings initiated for the execution of the decree in their favour. Moreover, there was no quarrel at the instance of the respondents that the decree had become final in the absence of any challenge to it and the only question at large being whether such a decree was executable or otherwise. This question requires an answer that in the absence of any assignment of right in favour of the respondents, the decree in the petitioners' favour did not stand extinguished. The finding of the learned Trial Judge therefore that the decree got extinguished on account of the execution of the raising and sale Agreements is without any sound basis. Moreover, it was always open to the learned Trial Court to hold an enquiry in terms of Section 47 of the Act and decide whether the decree actually stood satisfied or not rather than hastily concluding in the absence of any contemporaneous record that it stood extinguished on the execution of the said Agreement of raising and sale of iron ore. The decree as rightly submitted by Shri S.D. Lotlikar, learned Senior Advocate for the petitioners subsisted and therefore the learned Trial Court was clearly in error to hold that it stood extinguished and was incapable of execution.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 798 of 2016

Decided On: 18.01.2018

Chowgule and Company Limited Vs. Nina De Conceicao Menezes E Antao

Hon'ble Judges/Coram:

Nutan D. Sardessai, J.

Citation: 2018(4) MHLJ 291

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Whether eviction decree can be passed against tenant for non payment of arrears of rent due prior to transfer of tenanted premises?

It is to be seen here that in so far as the decree passed on the ground of arrears of rent is concerned, the Court has observed that the demand notice was issued by the landlords to the tenant on 3rd November, 1976, demanding the arrears of rent from 1-4-1976. The sale deed in favour of the landlords is dated 16th November, 1976. The Appellate Court has held that the landlords were claiming their entitlement to recover the rent from 1-4-1976 on the basis of the agreement of sale and copy of that agreement of sale has never been produced on record. The Appellate Court has held that in the absence of copy of the agreement of sale being placed on record, the landlords cannot be held to be entitled to the rent from 1-4-1976. The Appellate Court has further relying on the provisions of section 109 of the Transfer of Property Act, held that a transferee does not become entitle to arrears of rent due before the date of transfer and therefore, the landlords could not have claimed the arrears of rent for the period before 16-11-1976.

4. The learned Counsel appearing for the petitioners urged before me that as in the sale deed, there is a recital that by agreement of sale, right to recover the rent from 1-4-1976 was given to the landlords, the landlords were entitled to recover the rent from 1-4-1976. It is however, to be seen here that firstly the document of agreement of sale is not produced on record and secondly, in view of the provision of section 109 of the Transfer of Properly Act, it is crystal clear that a transferee is not entitled to arrears of rent due before the date of transfer and therefore, the amount of rent due from the tenant for the period before the date of transfer cannot be recovered as an arrears of rent and therefore a decree of eviction cannot be passed against the tenant under section 12 of the Bombay Rent Act, for non payment of those dues. I find no fault with the findings recorded by the Appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 4600 & 4599 of 1986

Decided On: 05.02.1998

Sukhlal Chunilal Ghagani Vs. Harish Suvarne & another

Hon'ble Judges/Coram:

D.K. Deshmukh, J.

Citation: 1998(3) ALLMR 761

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Whether transferee can recover possession for breaches committed by tenant prior to assignment of tenanted premises?

 For the reasons stated hereinabove, the view taken in Shantinath's case by the learned single Judge is overruled and we hold that the right of recovery of possession under sub-secs. (a) and (b) of Section 13(1) of the Act can be exercised by the successor-in-interest either by operation of law or by act of parties, of the original landlord and such right is not restricted only to the person who was a landlord on the date of the commission of the breach. In the present case, the record clearly indicates that the breach was committed by the tenant by erecting permanent structure, a couple of months before the death of the original owner and the original owner was protesting against the said breach and was unable to institute proceedings because of the illness and confinement in the hospital. It is obvious that the oriIN THE HIGH COURT OF BOMBAY

ginal landlord had not waived his right to recover possession and as such the right did devolve upon his successor-in-interest and the respondents are perfectly entitled to claim recovery of possession on that count. On the findings recorded by the two Courts below and approved by us, the decree of eviction passed against the tenant requires to be upheld. 

IN THE HIGH COURT OF BOMBAY

Spl. Civil Appln, No. 3391 of 1975

Decided On: 05.08.1981

Radhabai Bapurao Shelar  Vs. Madhav Hiralal Shelar.

Hon'ble Judges/Coram:

V.M. Kanade and M.L. Pendse, JJ.

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Whether deed dissolving partnership firm is to be registered?

The question raised in that case was whether the arbitration award, distributing assets of the firm after settlement of accounts, between partners in accordance with their shares, was compulsorily registrable under S. 17 of the Registration Act, 1908. Herein, it is to be emphasised that, no such dispute arises, since the impounding was occasioned when the document was presented for registration. Dissolution of partnership, whether it was compulsorily registrable, when the partnership assets included immovable property, was a vexed question which was finally resolved in the two decisions referred to in N. Khadervali Saheb (supra); viz., S.V. Chandra Pandian v. S.V. Sivalinga Nadar (MANU/SC/0450/1993 : (1993) 1 SCC 589) and Ratan Lal Sharma v. Purshottam Harit (MANU/SC/0003/1974 : (1974) 1 SCC 671).

9. Ratan Lal Sharma (supra) was concerned with the necessity of registration under Section 16 of the Registration Act. The dispute between the two partners was referred for arbitration, in which the partnership assets were assigned to one partner, in consideration of a specified sum. This exclusive allotment of the assets of the partnership, which included immovable property, was held to create rights in the immovable property, thus making registration compulsory. This decision was pressed to advance the contention of compulsory registration of an arbitration award which allotted the immovable properties and assets of a partnership to each of the partners in accordance with their shares S.V. Chandra Pandian (supra). The decision in Ratan Lal Sharma (supra) was distinguished in S.V. Chandra Pandian (supra) in the following manner:

"This Court while reiterating that the share of a partner in the assets of the partnership comprising even immovable properties, is moveable property and the assignment of the share does not require registration under Section 17 of the Registration Act. The legal position is thus affirmed. However, since the award did not seek to assign the share of the respondent to the appellant but on the contrary made an exclusive allotment of the partnership asset including the factory and liabilities to the appellant, thereby creating an absolute interest on payment of consideration of ` 17,000 plus half the amount of the realisable debts, it was held to be compulsorily registrable under S. 17 of the Registration Act. The Court did not depart from the principle that the share of a partner in the asset of the partnership inclusive of immovable properties, is moveable property and the assignment of the share on dissolution of the partnership did not require registration under S. 17 of the Registration Act. The decision, therefore, turned on the interpretation of the award in regard to the nature of the assignment made in favour of the appellant".

10. The essential distinction hence is in looking at whether there is an allotment of the surplus assets, on dissolution, amongst the partners. If that is so, the partners who owned the assets together, during the existence of the partnership, had a right to share in the business in accordance with their shares. On dissolution and allotment of the remaining assets, even if there is immovable property, each goes with his share, not creating any new right But when there is an assignment in favour of one or other and consideration is passed then it creates new rights on the immovable property. A deed creating such rights would have to be registered compulsorily and the creation of such right is a "release" under Article 48(b) to be stamped accordingly.

IN THE HIGH COURT OF KERALA

W.P.(C) No. 34751 of 2008

Decided On: 22.06.2015

 Vinayakrishnan Vs.Commissioner for Land Revenue

Hon'ble Judges/Coram:

K. Vinod Chandran, J.

Citation:2015 (3) KLT 214 : 2015 (3) KLJ 347 : ILR 2015 (3) Ker. 537 : 2015 (3) KHC 752

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Whether assignee can claim impleadment in suit for partition if property was assigned contrary to order of court?

As said before, the assignment is by means of a registered deed. The assignment had taken place after the passing of the preliminary decree in which Pritam Singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered. That has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prelavent public policy, When the Court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treaded by the courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 C.P.C.

Supreme Court of India

Surjit Singh & Ors. Etc. Etc vs Harbans Singh & Ors. Etc. Etc on 6 September, 1995

Equivalent citations: 1996 AIR 135, 1995 SCC (6) 50

           
BENCH:
PUNCHHI, M.M.
MANOHAR SUJATA V. (J)

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When lessor can terminate lease for breach of condition of lease?

The two contentions advanced before the learned Single Judge having been dealt with by us and the conclusions arrived at by the learned Single Judge, being affirmed, we deal with the contention advanced that even if there was a violation of clause 10 of the lease-deed the lease could not be determined because a term of the lease was violated and not a condition thereof.

23. Inter-alia, of the various recitals, the last recital of the lease-deed reads as under:-

―Whereas the lessor upon assurance of the lessee that it shall strictly abide by the stipulations contained in this deed which are in accordance with the terms and conditions stipulated/agreed by the lessee vide its letter dated 17.07.2008 in response to offer letter dated 07.07.2007 of lessor and accepted by the lessor on 23.07.2008, the lessor has agreed to give on lease to the lessee the demised premises on the terms and the conditions herein.‖

24. Thereafter the terms/conditions of the lease have been typed. It is thus apparent that whether we call it a term or anything else, clause 10 of the lease-deed, and for that matter all other clauses after the recitals, are not only the terms of the lease-deed but even conditions of the lease. It is trite that breach of a condition of a lease entitles the opposite party to terminate the lease, and where the breach is by the tenant, the landlord gets a right to terminate the lease.

25. The contention advanced with reference to clause 26 of the lease- deed was that parties expressly vested a right in the landlord to terminate the lease only on the condition of non-payment of rent. It was urged that therefrom it could be inferred that violation of any other term/condition of the lease the same could not be determined by the landlord.

26. Now, as we have already held hereinabove that the lease-deed has made all the terms of the lease as conditions of the lease and thus clause 10 prohibiting sub-letting or assignment without the written consent of the landlord would make it actionable if there is sub-letting or assignment.

Delhi High Court

Icici Bank Ltd. vs Late Smt. Shakuntla Gupta (Since ... on 12 August, 2015)

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
Citation;AIR 2016(NOC)162 Del

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When deed assigning property at the time of dissolution of partnership firm is liable to be stamped?

The essential distinction hence is in looking at whether there is an allotment of the surplus assets, on dissolution, amongst the partners. If that is so, the partners who owned the assets together, during the existence of the partnership, had a right to share in the business in accordance with their shares. On dissolution and allotment of the remaining assets, even if there is immovable property, each goes with his share, not creating any new right. But when there is an assignment in favour of one or other and consideration is passed then it creates new rights on the immovable property. A deed creating such rights would have to be registered compulsorily and the creation of such right is a "release" under Article 48(b) to be stamped accordingly.

Equivalent Citation: 2015 (3) KHC 752

IN THE HIGH COURT OF KERALA

W.P. (C) No. 34751 of 2008

Decided On: 22.06.2015

Vinayakrishnan M.C. Vs.Commissioner for Land Revenue and Ors.

Hon'ble Judges/Coram:K. Vinod Chandran, J.

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Distinction between “subrogation” and “assignment”

Supreme Court relied upon the standard textbook Insurance Law by MacGillivray and Parkington (7^th Edition) in which distinction between “subrogation” and “assignment” has been explained to mean as under: -

“1131. Difference between subrogation and assignment.-Both subrogation and assignment permit one party to enjoy the rights of another, but it is well-established that subrogation is not a species of assignment. Rights of subrogation vest by operation of law rather than as the product of express agreement. Whereas rights of subrogation can be enjoyed by the insurer as soon as payment is made, as assignment requires an agreement that the rights of the assured be assigned to the insurer. The insurer can-not require the assured to assign to him his rights against third parties as a condition of payment unless there is a special clause in the policy obliging the assured to do so. This distinction is of some importance, since in certain circumstances an insurer might prefer to take an assignment of an assured's rights rather than rely upon his rights of subrogation. If, for example, there was any prospect of the insured being able to recover more than his actual loss from a third party, an insurer, who had taken an assignment of the assured's rights, would be able to recover the extra money for himself whereas an insurer who was confined to rights of subrogation would have to allow the assured to retain the excess.

Another distinction lies in the procedure of enforcing the rights acquired by virtue of the two doctrines. An insurer exercising rights of subrogation against third parties must do so in the name of the assured. An insurer who has taken a legal assignment of his assured's rights under statute should proceed in his own name....”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3027 OF 2003

BHARAT DIESELS    Vs PRATAP SINGH                                  

 Dated;28.07.2009

BEFORE: -

HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON’BLE MR. B.K. TAIMNI, MEMBER

 PRONOUNCED ON         :   29.07.2009

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Whether acknowledgement of liability by mortgagor after assignment of his interest whether valid?

The decree passed by the learned Sub Judge in the suit is challenged in the appeal memorandum on various grounds, both under facts and law, and also as against the evidence tendered in the case. However, at the time of hearing, learned senior counsel for the appellants confined his challenges to the decree on a solitary ground that the suit was barred by limitation. Reply notices sent by two among the legal heirs of Joseph (2nd and 4th defendants) admitting the liability of their father after they had assigned the right over the plaint property in favour of the 6th defendant would not constitute acknowledgment of liability even assuming that a mortgage had been created by the father over the plaint property in favour of the plaintiff is the submission of the learned senior counsel. An acknowledgment made by a mortgagor after he had parted with the mortgaged property to another person will not be valid and binding on the property transferred. Any admission of liability after such transfer of the mortgaged property by him do not bind the transferee/purchaser or extend the period of limitation to sue on the mortgage, is the submission of the counsel. The decree passed by the court below holding that the reply notices sent by defendants 2 and 4 as acknowledgments of liability extended the period of limitation is assailed by counsel stating that reply notices had been sent after they had assigned the rights over the mortgaged property, it cannot constitute valid acknowledgment of liability keeping alive the mortgage. There were conflicting decisions by different High Courts as regards the right of creditor to proceed against the property by virtue of acknowledgment made by the debtor after he had parted with his interest in the property after the period of limitation from the date of the original transaction. Previously, the High Court of the Travancore - Cochin had taken a consistent view that an acknowledgment of the debtor even after the transfer of the property would bind that property and also the purchaser. A conflicting and different view that he could not bind the property and the purchaser and the admission of liability by the debtor after transfer of his interest in the property would not constitute an acknowledgment to bind the property was the view taken by some other High Courts. In Pavayi v. Palanivelu Goundou (MANU/TN/0033/1940 : AIR 1940 Mad. 470 (F.B.)), a Full Bench of the Madras High Court, after referring to several conflicting decisions on the subject by various High Courts held that the mortgagor who had lost all interest in the mortgaged property, could not, by an acknowledgment within the meaning of S. 19 or by the payment of interest or principal, within the meaning of S. 20, bind the person on whom his interest had devolved (sections 19 and 20 under the Limitation Act, 1908 corresponding to the present Sections 18 and 19 respectively of the Limitation Act, 1963). Subsequently, the same principle has been laid down by the Privy Council in Bank of Upper India Ltd. v. R.H. Skinner MANU/PR/0017/1942 : (AIR 1942 PC 67). In the above decision, after having a survey and analysis of the conflicting decisions and questions involved, it was held that admission of liability by the mortgagor after he had parted with interest of the purchaser do not bind the purchaser and it would not constitute an acknowledgment under the Limitation Act keeping alive the liability on the mortgaged property. The Travancore - Cochin High Court, following the decision of the Privy Council, in Kunchi Pillai v. Sunny Rebella MANU/KE/0098/1952 : (AIR 1953 Travancore -Cochin 196 (F.B.)), referred to above, has held that an acknowledgment of liability by the mortgagor made after the assignment of the equity of redemption will not be a valid acknowledgment so as to bind the assignee. An acknowledgment by a mortgagor after parting with the mortgaged property cannot be recognised as a valid acknowledgment was the view taken by the High Court of Mysore following the principle laid down in the Privy Council decision, referred to above, in Raghoba Santanna Naik v. Shaba Nalo Naik & Anr. (AIR 1960 Mysore 187). Same view has been taken by the Full Bench of the Madras High Court in Nallathambi Nadar Chellakannu Nadar v. Ammal Nadachi Chellathankom Nadachi & Ors. (MANU/TN/0199/1963 : AIR 1964 Mad. 169 (F.B.)), referred to above, stating that an acknowledgment of liability must involve an admission of a subsisting jural relationship between the parties and a consciousness and an intention of continuing such a relationship until it is lawfully terminated. So, in the present case, where the 2nd and 4th defendants whose reply notices are relied on as acknowledgments had already parted their interest in the plaint property, with other legal heirs of Joseph under Ext. B3 sale deed in favour of 6th defendant much earlier to the suit, reply notices sent by them cannot constitute valid acknowledgment keeping alive the mortgage liability over the plaint property. The learned Sub Judge has gone wrong in holding that the suit is not barred by limitation treating the reply notices of defendants 2 and 4 as constituting acknowledgment extending the period of limitation. Suit was clearly barred by limitation.

IN THE HIGH COURT OF KERALA

A.S. No. 513 of 1994

Decided On: 17.01.2014

Appellants: Francis
Vs.
Respondent: Antony

Hon'ble Judges/Coram:S.S. Satheesachandran, J.

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Court can treat the alienation/assignment as having not taken place at all for it purposes if alienation is made in defiance of restraint order

Reliance has been placed by Mr. Gupta on Surjit Singh v. Harbans Singh [AIR 1996 SC 135 : (1995) 6 SCC 50] wherein this Court opined: "4...In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes..."

 There cannot be any dispute with regard to the aforementioned proposition of law. 

Supreme Court of India

Arjan Singh vs Punit Ahluwalia & Ors on 14 May, 2008
Citation: AIR2008SC2718,2009(2)MhLj13, (2008)8SCC348

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