Whether court should permit parties to adduce evidence if there is allegation that mediation settlement was obtained by force?

 Learned counsel for respondents had submitted that although signatures of authorized representative of respondent on the mediated settlement are not denied but he had no instructions to agree to the terms of the settlement as reflected in the mediated settlement. It was also submitted on behalf of respondents that signatures of authorized representative of respondent were obtained forcibly and so aforesaid settlement is not binding upon the parties and the parties have been rightly referred to mediation again vide impugned order. Thus, it was submitted that there is no illegality in the impugned order and the decisions cited are distinguishable.

Since, question of fact are being raised regarding voluntariness of the mediated settlement, therefore, it would be appropriate that an opportunity is granted by trial court to respondents to lead evidence to show that the mediated settlement was not a voluntary one.

IN THE HIGH COURT OF DELHI

Crl. M.C. No. 2498/2014, 

Decided On: 09.02.2015

 Manoj Chandak Vs. Tour Lovers Tourism (India) Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Sunil Gaur, J.

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How to ascertain limitation for cancellation of document executed due to force or fraud?

 In law, once documents are alleged by the appellant/plaintiff to be forged and fabricated documents, such a plea would ordinarily include challenge to the documents on the ground that the contents of the documents are not known to the appellant/plaintiff. Once the contents of the documents are not known, then the period of limitation can only start against the appellant/plaintiff to question the documents when the contents of the documents are known to her. This is clarified by the Hon'ble Supreme

Court in the judgment in the case of Prem Singh and Others v. Birbal and Others (2006) 5 SCC 353 that a voidable document is a document which is sought to be cancelled under Article 59 of the Limitation Act whereas a void document need not be cancelled. It has also been held by the Hon'ble Supreme Court in the case of Mohd. Noorul Hoda v. Bibi Raifunnisa and Others (1996) 7 SCC 767 that the starting point of limitation under Article 59 of the Limitation Act is the knowledge of the alleged fraud. The relevant paragraph of this judgment is para 6 and this para 6 reads as under:-
“6. The question, therefore, is as to whether Article 59 or Article 113 of the Schedule to the Act is applicable to the facts in this case. Article 59 of the Schedule to the Limitation Act, 1908 had provided inter alia for suits to set aside decree obtained by fraud. There was no specific article to set aside a decree on any other ground. In such a case, the residuary Article 120 in Schedule III was attracted. The present Article 59 of the Schedule to the Act will govern any suit to set aside a decree either on fraud or any other ground. Therefore, Article 59 would be applicable to any suit to set aside a decree either on fraud or any other ground. It is true that Article 59 would be applicable if a person affected is a party to a decree or an instrument or a contract. There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot

be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word „person‟ in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him.”
 IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA No. 332/2018
Dated: 11th October, 2018 

ANITA RANI MANGLA  Vs BHAGWAT DAYAL 

 CORAM:  MR. JUSTICE VALMIKI J.MEHTA 

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Whether review application is maintainable if divorce decree is granted ignoring statutory procedure?

 Assuming that it was not an application under Section 13-B of the Act, but one under Section 13 of the Act, the law requires that it should be any one or more of the grounds enumerated under Section 13 of the Act which should be alleged and proved like any other fact. Section 13 of the Act further requires that where the ground taken in the petition for divorce is that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, it must be also proved that the applicant has not in any manner been accessory to or connived at or condoned the act or acts complained of. It further requires that the court must be satisfied, when a divorce is sought on the ground of mutual consent, that such consent has not been obtained by force, fraud or under influence. Law requires that in any proceeding under this Act whether defended or riot the court is required to be satisfied on the above points.

7. Learned counsel appearing for the opposite party has contended that the application having not been contested, the court could pass a decree without making any enquiry as to the correctness of the allegations made in the application. As already stated, the Statute itself requires that the court must be satisfied about the absence of any connivance or condonation of any act complained of and absence of any force, fraud or undue influence being used for obtaining consent for divorce even where the' case is not defended. In other words, a duty has been cast on the court itself to be satisfied that the applicant praying for a decree of divorce has not been guilty of practising fraud, force or undue influence in order to obtain consent from the other party and that he or she has not been accessory to the alleged adultery or has not condoned the same.

8. The court in the present case did not consider any of the aforesaid circumstances and passed a decree for divorce on the basis of the statement made by the petitioner. Be it an application alleging adultery within the meaning of Section 13 of the Act, or one under Section 13-B of the Act the court has utterly failed to discharge its duties while disposing of that: application. Therefore, it was a fit case for' review.

9. By the impugned order, the learned court below did not entertain the application for review on its merits saying that the court became functus officio after the judgment was passed in the original case. As per the analysis made in the preceding paragraphs, I am of the view that a good case has been made out for review of the judgment inasmuch as the court has failed to exercise jurisdiction vested in it by law and has passed the decree for divorce ignoring the statutory procedure prescribed under the Act and the Rules framed there-under. 

IN THE HIGH COURT OF ORISSA

Civil Revision No. 446 of 1989

Decided On: 29.03.1991

Smt. Kanchan Mohanty
Vs.
 Kulamani Mohanty

Hon'ble Judges/Coram:
Purna Chandra Mishra, J.

Citation: AIR 1992 Orissa 165

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Whether court can grant probate on basis of compromise?

What is more surprising is that the Probate application, although became contentious, was disposed of in terms of compromise which is not permissible under the law of the land. As pointed out by a Division Bench of this Court in the case of A.E.G. Carapiet vs. A.Y. Darderianreported in AIR 1961 Calcutta 559, the Probate Court being a Court of conscience, the Probate cannot be granted on the basis of compromise. In a proceeding for grant of Probate it is the duty of the Probate Court to see whether the Will was the last Will of the testator, whether he had full mental capacity to execute the Will, whether the same was executed and attested after compliance of the requirements of the Indian Succession Act and whether the same was executed without being vitiated by force, fraud, undue influence etc. Apart from those questions, a Probate Court cannot go into the question of title of the testator in the subject-matter of bequest nor can a Court grant a Probate which is at variance with the terms of the Will. (See: Uma Addhya vs. Biren Mondal and others reported in 2006(2) CHN 680).

Even if any compromise is recorded after actual grant of Probate on proof of the Will for keeping it on record, the same is never made part of the Probate and separate suit is to be filed for specific performance of such agreement if the same is not respected by the parties. (See:Saraswati Mondal vs. Sachidulal Saha reported in AIR 2005 Cal 257 ;) In the case before us, it appears from the certified copy of the relevant order-sheet that Probate was granted solely on compromise and the same was made part of the decree which is not permissible.

Calcutta High Court (Appellete Side)

Paresh Chandra Majhi & Ors vs Sri Biswanath Majhi & Ors on 10 July, 2009

Present:
 Mr. Justice Bhaskar Bhattacharya
                  And
 Mr. Justice Prasenjit Mandal

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Whether drawer of cheque will be liable for dishonour of cheque when cheque was obtained under threat and force?

 It clearly shows under the guise of execution of any summons or warrant served on the accused in the crime registered by police, after referring the complaint to the police by the Court, P.Ws. 1 and 2 along with Sub Inspector and Head Constable, went to the house of the accused at Mumbai. There are no details what was the time taken for the said settlement and how the accused is responsible for the amount of Rs. 35,00,000/-, which was given to the father of the complainant and how the said amount of Rs. 35,00,000/- was arrived at Rs. 25,00,000/- in settlement, which are material facts but for mentioning as if a settlement already arrived and the five cheques were issued which include Ex. P.3. That also probablises the defence version apart from the complaint as well as evidence of P.Ws. 1 and 2 also silent regarding proof how the sum of Rs. 35,00,000/- was paid if at all to the accused when and by what source. The defence of the accused that his father was running that entity and after his death it became defunct and he was not even Director by then and not responsible for it and it is under the threat and force through police, P.Ws. 1 and 2 obtained the signatures on the blank cheques and on the so-called undertaking letter in the absence of showing the said amount due by the accused much less of Rs. 35,00,000/- and there from settlement of Rs. 25,00,000/- and how and why mere filing of a cheque is not sufficient despite the evidence of the accused and reply notice Ex. P.9, which is sometime prior to the presentation of the cheque and that too having filed the private complaint including this cheque and the allegations of cheating for non-payment, the survival of the cause of action for its dishonour also doubtful from the complainant version leave that as it is not a matter of dispute or controversy for any finding therein for purpose of the accused even taken it is after filing of the so-called cheating case and so-called Exs. P.2 and P.3 along with other cheques given, those show the complainant entity represented by P.Ws. 1 and 2 through police force went to the accused under the guise of securing his presence before the court in Cr. No. 29 of 2004 pending under the police investigation under threat and force, obtained signatures and misused the same and there is no legally enforceable debt. There is nothing to rebut the same even from cross-examination of D.W. 1 in this regard by producing any material regarding giving of Rs. 35,00,000/- much less to the accused and otherwise liability for the same by the accused and what the law laid down by the Apex Court in Narayan Menon (supra) in discharge of burden on the part of the accused in rebutting the presumptions if at all available against the accused under Section 118 and 139 N.I. Act is need not by coming to the witness box suffice even from showing preponderance of the probabilities of the version by putting to the fact the complainant and witnesses and by confronting with the documents and the accused need not disprove the case of the complainant, he can discharge even by direct or circumstantial evidence is said probable evidence to rebut the defence. In this case not only the suggestions to P.Ws. 1 and 2, but also admissions from the evidence of P.Ws. 1 and 2 in the cross-examination co-relating to Ex. P.2 date and contents therefrom substantiating the defence version that Ex. P.3 cheque and other cheques were obtained under threat and force by the complainant entity officials including P.Ws. 1 and 2 through Police force and thereafter proved that he is not liable for the amount and there is no legally enforceable debt or other liability as rightly concluded by the trial Court's with that finding supported by reasons from the factual matrix with reference to the law settled supra. Hence for this Court while sitting in appeal, there is nothing to interfere. Accordingly, point No. 1 is answered.

Equivalent Citation: 2015 (2) ALT (Crl.) 280 (A.P.),2015CRLJ(NOC)392 (HYD)

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

Criminal Appeal No. 1512 of 2007

Decided On: 04.06.2014

 Inden Power International Ltd.
Vs.
Chandan Pandya

Hon'ble Judges/Coram:Dr. B. Siva Sankara Rao, J.

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When defence of force or coercion is not permissible in cheque dishonour case?

After knowing the principles laid down in the various cases
as above, let us proceed to deal with the facts of the present
cases. It is pertinent to note that in the present cases, the
execution of the cheques has not been denied by the accused. On
account of the above, In view of the Section 139 of the N.I. Act,
there was presumption in favour of the complainant that said
cheques were issued in discharge of legally enforceable debt or
liability favouring the complainant and it was for the accused to
rebut the said presumption.
It is seen that though according to
the accused, letter dated 06.07.2005 and the subject cheques
were obtained from him by force or coercion, however, the
accused did not lodge any police complaint against the directors of
the complainant and others nor did he instruct his banker to stop
payment. The complainant had given
statutory notices to the
accused as required under Section 138(b) of the N.I. Act, and same
were served upon the accused though they were not accepted by
him and thus were returned “unclaimed” to the complainant. The

accused therefore is deemed to have
the statutory notices.
However, the accused did not reply the same. Adverse inference is
bound to be drawn as against the accused. Merely because in the
said letter dated 06.07.2005, it is mentioned that the same is in
the handwriting of the accused and that it is written without any
coercion or pressure of any one and that the accused had signed
the cheques on his own as matter of amicable settlement, that
cannot establish that there was coercion on the accused to sign
the letter. Such an observation of the learned J.M.F.C. is without
any basis. In fact, there was no reason for the accused not to lodge
any police complaint or not to instruct the bank to stop payment
and even there was no reason for the accused not to reply the
statutory notices. According to the accused, on 6.7.2005
around 10.00 a.m.,
he
was
called
along
with
the
at
cheque
books and other documents relating to Malax Traders in the office
of the complainant. The accused had not gone to the office of the
managing director on 06.07.2005 with the cheque books of Malax
Traders, but with his private cheque book or cheques. The coercion
or threatening had not started before the accused had gone to the
office. There was no reason at all for the accused to carry with him
his private cheque book or cheques. It should be kept in mind that
the accused had raised industrial dispute. In such circumstances,
it cannot be at all be said that the accused had successfully

discharged the initial reverse burden to show that the said cheques
were not issued towards the discharge of legally enforceable debt
or liability.


IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL APPEALS NO. 15, 16, 17, and 18 OF 2013.
CRIMINAL APPEAL NO. 15 OF 2013.
M/s. Agency Real Margao Pvt. Ltd.,

v/s
Shri Subhash K. Parab,

CORAM :- U. V. BAKRE, J.

Pronounced on:-12th February, 2015.
Citation; 2015 ALLMR(CRI)2082

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Whether appeal against decree of Divorce by mutual consent is maintainable?

 Legislature has cast obligations upon Court entertaining the proceedings under section 13[B] to record a finding that consent for divorce has not been obtained by force, fraud or undue influence. Thus legislature has visualised that there may be a case in which consent for divorce may be obtained and decided to provide a safeguard against abuse of this provision. Hence obligation has been cast upon the court to verify the same, and to record a satisfaction that the consent given by the parties is free and voluntary. Thus having visualized abuse of such provision for grant of divorce by mutual consent by use of force, fraud etc., it cannot be accepted that legislature did not provide for a remedy to the spouse aggrieved in such matters. To hold that remedy of appeal is not available to such aggrieved spouse, will be rendering nugatory the exercise of obligation cast upon the trial court by the Legislature. I therefore find that the arguments of Advocate Shri De about tenability 

of appeal against such consent divorce decree are liable to be rejected.

13. In view of this consideration, it has to be held that the appeal as filed by the appellant / wife before the Lower Appellate Court and before this Court is legally maintainable and question no.2 needs to be answered accordingly in affirmative in her favour. Question no.3 about indulgence in perjury by the appellant wife cannot be answered at this stage in absence of sufficient material, as it is found to be premature. No remand or calling of report from trial court in that respect is necessary as even otherwise the trial court has to look again into the voluntary nature of wife's consent. Question no.1 is answered in favour of the wife by holding that there is no compliance with provisions of Section 23[1][bb] of the Hindu Marriage Act.

Bombay High Court

Sau. Sushama  vs Shri Pramod on 17 March, 2009

Bench: B. P. Dharmadhikari

Citation; 2009 (4) MHLJ 81 Bom

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