Whether the court can dismiss a suit for specific performance of contract filed within limitation on the ground of delay?

 In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the Plaintiff to state that he was not ready and willing. In India, it is well settled that the Rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the Plaintiff - See Mademsetty Satyanarayana v. G. Yelloji Rao and Ors. MANU/SC/0310/1964 : AIR 1965 Supreme Court 1405 (paragraph 7) which reads as under:

(7) Mr. Lakshmaiah cited a long catena of English decisions to define the scope of a Court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay - the time lag depending upon circumstances - may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2420 of 2018

Decided On: 10.07.2019

 R. Lakshmikantham  Vs.  Devaraji

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Surya Kant, JJ.

Citation: (2019) 8 SCC 62.

Print Page

Whether a party who has knowingly accepted benefits of order can assail said order later?

During the course of his submissions, Mr. Jafri, learned counsel for the petitioners has admitted that cost of Rs. 10,000/-, subject to which the ex-parte judgment and decree was set aside, was accepted by the learned counsel appearing for the petitioners/plaintiffs.

4. The petitioners cannot “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where the petitioners have knowingly accepted the benefits of an order, they cannot be permitted to assail the same. This rule is applied to do equity. Therefore, in this case where the petitioners have already accepted the cost, they are estopped by their act, conduct and acquiescence to continue the present petition.

In the High Court of Delhi at New Delhi

(Before Vinod Goel, J.)

Mustaqeem  v.  Faiyaz alias Faizab 

C.R.P No. 65/2018

Decided on January 21, 2019

Citation: 2019 SCC OnLine Del 6751

Print Page

Whether court can rewrite arbitration clause?

The aforesaid principles are in the realm of settled position of law. The natural corollary of the said propositions is that the parties are bound by the clauses enumerated in the policy and the court does not transplant any equity to the same by rewriting a clause. The Court can interpret such stipulations in the agreement. It is because they relate to commercial transactions and the principle of unconscionability of the terms and conditions because of the lack of bargaining power does not arise. The said principle comes into play in a different sphere.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2268 of 2018 (Arising out of S.L.P. (C) No. 33621 of 2017)

Decided On: 02.05.2018

 Oriental Insurance Company Limited Vs.  Narbheram Power and Steel Pvt. Ltd.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation:(2018) 6 SCC 534

Print Page

Whether arbitrator can allow claim on ground of equity and contrary to terms of contract?

It is thus clear that the arbitral tribunal has awarded the said claim based on equity and contrary to the terms of the contract. The arbitral tribunal could not have decided the matter based on equity in a commercial contract. The respondent had been awarded several contracts of similar nature and was fully aware that the petitioner had not guaranteed any profit to the respondent in respect of these contracts. Merely because the respondent found the contract less profitable or non-profitable after execution of the contract, that could not be a ground for awarding any claim by the arbitral tribunal. The respondent was bound to comply with its obligation under the contract.{PARA 77

78. In paragraph 27 of the impugned award, the arbitral tribunal has held that at the relevant time, the petitioner herein was in a superior bargaining position since they were, to all intents and purposes, monopoly purchasers of the services being offered and therefore, the contractor had little choice available with him. To secure employment in the field of operation of vessels with another party was virtually impossible. It is held that in the instant case, the employment was being offered by an agency of the state from whom the operator had a right to except fair treatment. It is clear that the arbitral tribunal has erroneously applied the principles of law laid down by the Supreme Court in the case of Central Inland Water Transport case which does not apply to a commercial contract. The respondent had submitted its bid with open eyes and being a contractor in the field for last several decades could not even raise such plea that the contract was one sided or that the respondent had no bargaining power while entering into a contract with the petitioner. The award shows total perversity on this issue.

IN THE HIGH COURT OF BOMBAY

Arbitration Petition No. 549 of 2013

Decided On: 09.06.2017

 Oil and Natural Gas Corporation Ltd. Vs. Interocean Shipping (India) Pvt. Ltd.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2017(5) Bom CR 8

Print Page

Whether plaintiff has legal duty to come to court with true case and prove it by true evidence?

Inspite of the courts repeatedly stating and reaffirming the principle that it is the duty of a party asking for an injunction to bring to the notice of the Court all facts material and relevant to the issue, the litigants continue in their efforts to obtain favourable orders from the Court, ex parte, without disclosing all material facts to the Court. 

Thereafter again the Supreme Court in the case of S.P. Chengalvaraya Naidu v. Jagannath, observed as follows :

"KULDIP SINGH, J.:---"Fraud- avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or a Decree obtained by playing fraud on the Court is a nullity and nonest in the eyes of law. Such a judgment/Decree- by first Court or by the highest Court-has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings."

"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of the case, Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that There is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of the law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."

The passages quoted above leave no manner of doubt that a dishonest litigant loses his remedy, when discretionary relief is obtained by misrepresentation. The affidavit in support must make a candid and fair statement of facts. Facts must not be stated in a manner to mislead the Court as to the true facts. There must be no concealment of material facts. It is no excuse for the party to say that he/she was not aware of the importance of any facts which he/she has omitted to bring forward.

Bombay High Court

Agarwal Industries Ltd. vs Golden Oil Industries (P) Ltd. on 8 April, 1999

Equivalent citations: AIR 1999 Bom 362, 1999 (3) BomCR 390, (1999) 2 BOMLR 476, 2001 106 CompCas 78 Bom, 1999 (3) MhLj 684

Bench: S Nijjar

Print Page

When high court should not direct execution of lease deed?

In the light of aforesaid decision, when we consider the overall conduct of Mesco in the instant case, we are fully satisfied that the High Court has adventured into an avoidable illegality while directing execution of lease deed. It is a settled law that equity follows the rule of common law in respect of such contracts. Renewal of lease is a privilege and if a tenant wishes to claim the privilege, he must do so strictly within the time limited for the purpose. This Court has further considered the question where there is no time limit, an application may be made within a reasonable time. If delay is on the part of lessee for renewal arising out of mere neglect on his part and which could have been avoided by reasonable diligence, would not entitle him to claim renewal. Applying the same principle to the instant case, it is apparent that the conduct of Mesco was unfair and unpardonable. The conduct disentitled it from indulgence by Court in any manner. We are constrained to observe that a number of times the High Court had unnecessarily directed the matter to be reconsidered and on each and every occasion there was rejection of the representation by the concerned authorities. Thus, no equitable consideration was available with Mesco to invoke the writ jurisdiction for the reliefs sought. Relief granted is not permissible as per law.

Reportable

Supreme Court of India

Orissa Industrial Infra.Dev. ... vs M/S Mesco Kalinga Steel Ltd. & Ors on 14 February, 2017

Print Page

How to prove plea of adverse possession?

 The finding of reversal recorded under issue No.6 by the Lower Appellate Court was lawful and had its root in basic interpretation of maxim 'nec vi, nec clam, nec precario'. The mere possession or permissive possession does not demonstrate spectrum of adverse possession. For claiming adverse possession defendant must prove his possession to be peaceful, open and continuous. Such possession should be actual, open, notorious, exclusive and continuous for required time. The possession should be adequate in continuity, in publicity and in extent to show that his possession is adverse to the very knowledge of the true owner. The possession must start with a wrongful dispossession of the rightful owner and should be actual, visible, exclusive, hostile and continued for a statutory period. The plea of adverse possession is not a pure question of law, it is the interpretation based on the following text mechanism:-

(a) On what date defendant came into possession?

(b) What was the nature of his possession?

(c) Whether the factum of possession was known to  the plaintiffs?

(d) How long his possession had continued?

(e) Is possession was open and undisputed? 

[23]. Plea of adverse possession has no equities, this has same instinct of piratical rights. Necessary ingredients on the subject issue can be viewed from the authoritative judgment of the Hon'ble Supreme Court in Karnataka Wakf Board vs. Government of India (2004) Volume 2 RCA Civil 702.

Punjab-Haryana High Court

 Rupinder Singh Etc vs Naranjan Singh on 11 February, 2015

RSA No.2049 of 1989 (O&M)

CORAM: MR. JUSTICE RAJ MOHAN SINGH

Citation;2016(1) ALLMR(JOURNAL)27

Print Page

He who seeks equity must do equity.

The truth should be the guiding star in the entire judicial process. “Every trial is a voyage of discovery in which truth is the quest”. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677; and Amar Singh v. Union of India, (2011) 7 SCC 69).
 The appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide: The Ramjas Foundation & Ors. v. Union of India & Ors., AIR 1993 SC 852; Nooruddin v. (Dr.) K.L. Anand, (1995) 1 SCC 242; and Ramniklal N. Bhutta & Anr. v. State of Maharashtra & Ors., AIR 1997 SC 1236).

Supreme Court of India

V.Chandrasekaran & Anr. vs Administrative Officer & Ors. on 18 September, 2012

Print Page