Whether insurance Company can refuse to pay compensation to third party if certificate of Insurance was wrongly issued?

If a question of fraud or misrepresentation arises by and between the insurer and the insured, the third party claimant is not concerned therewith. A vehicle is required to be compulsorily insured in terms of the provisions of the Motor Vehicles Act, 1988. Keeping in view the aforementioned provisions, we are of the opinion that the learned tribunal has committed an error in going into the issue raised by the respondent No. 1. In our opinion, if according to the respondent No. 1, the contract of insurance did not come into force on 18-2-1992 and the certificate of insurance was wrongly granted either by reason of any mistake or fraud committed by either of the parties or by its officers, the remedy of the respondent No. 1 may be to initiate a separate proceeding for realisation of the amount so paid by it from the owner of the vehicle, but keeping in view the letter and spirit of the Motor Vehicles Act, we are of the opinion that a third party claimant should not suffer therefore.

 IN THE HIGH COURT OF CALCUTTA

Misc. Appeal No. 7 of 1995

Decided On: 31.07.1996

V. Ravi Vs. New India Assurance Company Ltd. and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and S.K. Tiwari, JJ.

Author: S.B. Sinha, J.

Citation: MANU/WB/0032/1997, 1998ACJ598, AIR1997CAL242.

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Whether a court can recall an order passed by it by mistake?

  It can thus be seen that three Supreme Court cases cited, negative inherent powers under Section 151 of the Civil P. C. in the face of specific provisions in C. P. C. while one case lays down that powers under Section 151 C. P. C. cannot be invoked for interference with substantive rights of the parties. There is no specific provision in C. P. C. enabling the Court to recall an earlier order which is the result of mistake committed by Court. No question of interference with substantive rights arises. The question involved in the present case is very much procedural. Only be cause some rights are wrongly presumed in favour of a party, it cannot be said that the case involves a question of substantive rights. {Para 11}

12. (D) Even otherwise and apart from the provisions of Section 151 C.P.C. every Court of record has got inherent powers to correct its own mistakes. If an authority is needed for this proposition one can find it in Raja Debi Bakhsh Singh v. Habib Shah (1913-40 Ind App 151). this was an appeal before Privy Council from the judgment and decree passed by the Judicial Commissioner, Oudh. Due to mistake of court orders and rules applicable to a defaulter were applied to a dead man Privy Council was of the opinion that the case was covered by provisions of Section 151 of the C.P.C. but while expressing such an opinion their Lordships further observed:--

"Lordships opined that such abuse has occurred by the course adopted in the Court of the Judicial Commissioner. Quite apart from Section 155, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made".

To similar effect are the observations of the Division Bench of the Allahabad High Court in the case of Jodha Singh v. Padey Gokaram Das (AIR 1925 All 622) where it was held:---

"That the order of the Court was wrong and that the court was right in setting it aside when the mistake was brought to its notice by the party."

Bombay High Court

Gangabai And Ors. vs Ratan Kumar And Ors. on 25 August, 1982

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Whether the burden of proof is on the person to prove a mistake if he pleads mistake?

 Adverting to the questions of law framed, it is admitted by the respondent that she has been described as a Christian in all her educational records. She would claim that it is a mistake. Once the fact that there has been such wrong description is admitted, it is for the person, who claims that the wrong description is a result of  mistake, to prove the same.

I am, therefore, of the considered opinion that the courts below were not right in placing burden of proving misrepresentation on the appellant and concluding that the appellant has not discharged the burden. Once the plea of mistake is raised, it is for the party pleading mistake to prove the same. 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

C.M.S.A(MD)No.05 of 2009

P.Sivakumar Vs  S.Beula 

Pronounced on: 25.02.2021

Coram:  MR.JUSTICE R.SUBRAMANIAN

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Whether consent decree will operate as estoppel if fraud, misrepresentation, or mistake vitiate compromise?

This Court’s Analysis

18. Before adverting to the specific contentions raised by the

learned senior counsel for the Petitioner, it may be useful to briefly summarise the law governing consent decrees that shall inform our conclusions on the present matter. It is well settled

that consent decrees are intended to create estoppels by judgment against the

parties, thereby putting an end to further litigation between the

parties. Resultantly, this Court has held that it would be slow to

unilaterally interfere in, modify, substitute or modulate the terms of

a consent decree, unless it is done with the revised consent of all

the parties thereto. (Gupta Steel Industries v. Jolly Steel

Industries Pvt. Ltd. & anr., (1996) 11 SCC 678; Suvaran

Rajaram Bandekar & ors. v. Narayan R. Bandekar & ors.,

(1996) 10 SCC 255).

19. However, this formulation is far from absolute and does not

apply as a blanket rule in all cases. This Court, in Byram Pestonji Gariwala v. Union Bank of India & ors., (1992) 1 SCC 31, has held that a consent decree would not serve as an estoppel, where

the compromise was vitiated by fraud, misrepresentation, or

mistake. Further, this Court in the exercise of its inherent powers

may also unilaterally rectify a consent decree suffering from clerical

or arithmetical errors, so as to make it conform with the terms of

the compromise.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NOS. 2224-2225

OF 2021

COMPACK ENTERPRISES INDIA (P) LTD.  Vs BEANT SINGH 

Author: MOHAN M. SHANTANAGOUDAR, J. 

Dated: FEBRUARY 17, 2021

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SHORT NOTES ON LIMITATION ACT 1963 Part 2

S 15. Exclusion of time in certain other cases:-

The present section says that time is to be excluded in the following circumstances:-

Sub S 1- When a suit or execution proceedings are stayed by injunction or order.

Sub S 2- When notice to government or any other authority is necessary, the period of notice. Where notice is not mandatory, period will not be excluded.

Sub S 4 – In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of decree, the time during which proceeding to set aside sale has been prosecuted shall be excluded.

Sub S 5 -When defendant has been absent from India.

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Whether court can allow amendment of pleading even if there inadvertence or infraction of rules of procedure?

It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2366 of 2010

Decided On: 14.05.2015

 Mahila Ramkali Devi and Ors. Vs.  Nandram and Ors.

Hon'ble Judges/Coram:

M. Yusuf Eqbal and Amitava Roy, JJ.

Citation: 2015(4) ALLMR 426 SC

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Whether court can amend judgments, decrees or orders if mistake is arising out accidental slip or omission of parties?

    I am of the view that there is no reason to

restrict the scope of Section 152 of the Code of CPC to

`accidental slip or omission' of the Court and its

ministerial staff alone. It would be relevant to extract

Section 152 of the CPC:

              "152. Amendment of judgments, decrees or orders:-

       Clerical or arithmetical mistakes in judgments, decrees or orders, or

       errors arising therein from any accidental slip or omission may at

       any time be corrected by the Court either of its own motion or on

       the application of any of the parties."

There is nothing to indicate that the applicability of

the Section is confined to cases of slip or omission by

Court.      It     definitely       takes      within    its    compass     the

`accidental slip or omission' of the parties also.

Essentially the question would be whether it was an

instance of `accidental slip or omission'. When the

Court      is    satisfied       that     the    mistake     or    error    was

accidental, powers vested in the Court under Section 152

of the CPC needs to be invoked to correct mistakes in



the decree, especially in a case like the present one,

where parties to the suit do not dispute the fact that

the particulars sought to be corrected, is a mistake. It

would be highly inequitable in such a case, to drive the

parties to a separate litigation seeking the relief of

rectification of the instrument itself. A mistake made

by the parties in a deed upon which the suit is founded

and carried forward into the judgment, decree or order

might      be    or   might not  be    an "accidental slip or

omission". In cases where it is clear that the case is

one of "accidental slip or omission", it is the duty of

the court to correct the decree in tune with the actual

intend of the Court and the parties. It is not necessary

to drive the parties to a separate litigation for

rectification of the deed. Giving such an interpretation

to Section 152 of the CPC would only advance the cause

of justice. Even assuming that Section 152 of the CPC


does not apply, still it could be corrected in exercise

of the inherent power vested under Section 151 of the

CPC. In such matters Courts should not be tied up by the

shackles of technicalities but must strive to do justice

to the parties. In adopting the above approach, I am

fortified by the judgment of the Apex Court in Niyamat

Ali Molla V.Sonargon Housing Cooperative Society and

others (2007 (13) SCC 421).

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

         MR. JUSTICE SATHISH NINAN

    17TH DAY OF OCTOBER 2016/

                 OP(C).NO. 1268 OF 2015

       CHANDRAN 

V
           AMRUTHAVALLY,

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When court can recall its own order under its inherent powers?

Supreme Court in Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396, held that what is a power to recall? Inherent power to recall its own order vesting in tribunals or courts and set aside an orders:- 
(i) obtained by fraud practised upon the court, 
(ii) when the court is misled by a party, or 
(iii) when the court itself commits a mistake which prejudices a party. 
13. In the present case, Narendra Kumar Sharma filed an application (registered as Misc. Case No. 16/74/2006) under Order 21 Rule 97 C.P.C., which was dismissed by Executing Court by order dated 04.09.2009. Executing Court should have allowed execution case and directed that decree holders be put into possession of the property, in view of Order 21 Rule 98 (2) C.P.C. on same day. Later on, ejectment of the petitioners was stayed in Writ-C No. 74825 of 2010, by order dated 22.12.2010, which was operative till 03.12.2014. Due to interim order of this Court, Executing Court was unable to pass any order in execution case except adjourning it. Order dated 15.10.2011 was passed during continuance of interim order of this Court. Executing Court committed two mistake, firstly on 04.09.2009, while dismissing application under Order 21 Rule 97 C.P.C., he would have allowed the execution case under Order 21 Rule 98 (2) C.P.C. on the same day and secondly due to interim order of this Court dated 22.12.2010, Executing Court was unable to pass any order, except adjourning execution case; although order dated 22.12.2010 was operative till 03.12.2014 but execution case was dismissed in default on 15.10.2011. This mistake of court can be rectified, exercising inherent powers under Section 151 C.P.C. Supreme Court in Om Prakash Marwaha v. Jagdish Lal Marwaha, (2009) 1 SCC 510, relying upon in Jang Singh v. Brij Lal, AIR 1966 SC 1631, held that a litigant should not suffer on account of the lapse made by an officer of the Court. Applying the well-known maxim actus curiae neminem gravabit, that an act of court should do no harm to a litigant, this Court held that the mistake should be rectified by the Court and the parties relegated to the position on the date when the mistake occurred. Madhya Pradesh High Court in Khoobchand Jain Vs. Kashi Prasad, AIR 1986 MP 66 and this Court in Arjun Prasad Smt. Ameer Jahan Begum, 2007 (8) ADJ 726 and Matter Under Article 227 No. 7036 of 2015 State of U.P. Vs. Saifi Abdul Hasan (decided on 11.12.2015) also held that if due to mistake committed by Court case was dismissed in default then order can be recalled. 
HIGH COURT OF JUDICATURE AT ALLAHABAD 

 

Case :- MATTERS UNDER ARTICLE 227 No. - 7035 of 2015 

Narendra Kumar SharmaV Nand Kishore Sharma 

Hon'ble Ram Surat Ram (Maurya),J. 
DATED: 20.5.2016 

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Whether mistake is fraud?

A mistake is not a fraud. It may be discovered and in a given case it must be pleaded. Such plea must lead to a fundamental error. It can be a subject matter of acquiescence. In Kerr on the Law of Fraud and Mistake, 7th Edn. at page 599, it is stated "Where one party makes a mistake either of law or fact and the other party to a transaction allows him to act upon it, then (even though such other party may himself not know of the mistake) he may be estopped from setting up the mistake for having in effect ratified it. In one case where parties had acted on one construction of a deed for forty years the House of Lords held that neither party was estopped from setting up the mistake, and that rent underpaid for so long as it was not barred by the Statute of Limitation could be recovered."

Supreme Court of India

D.D.A. And Ors vs Joginder S. Monga And Ors on 12 December, 2003

Bench: Ashok Bhan, S.B. Sinha

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When employer may not recover excess payment made by him to employee due to his own mistake?

 It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.

Supreme Court of India

State Of Punjab & Ors vs Rafiq Masih (White Washer) on 18 December, 2014

Bench: Jagdish Singh Khehar, Arun Mishra

Citation;AIR 2015 SC 1267

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Whether mistake in plot number will affect identity of property sold?

Learned counsel placed reliance on the judgment of the Supreme court in the
case of P. Udayani Devi Vs. V.V. Rajeshwara Rao and another, AIR 1995 SC
1357 in support of the submission that certificate of sale or document of title
which ought not to be lightly regarded or loosely construed. Paragraph 7 of the said
judgment reads thus :
“7. We find considerable substance in this contention. The
position in law is well-settled that "certificates of sale are
documents of title which ought not to be lightly regarded or
loosely construed." [See : Rambhadra Naidu v. Kadiriyasami
Naicker . In Sheodhyan Singh and Ors. v. Musammat Sanichara
Kuer and Ors. MANU/SC/0283/1961: [1962]2SCR753 , in the
sale certificate the boundaries as well as the plot number were
mentioned but there was a mistake in mentioning the plot
number. It was held ;

“The matter may have been different if no boundaries had been
given in the final decree for sale as well as in the sale certificate
and only the plot number was mentioned. But where we have
both the boundaries and the plot number and the circumstances
are as in this case, the mistake in the plot number must be
treated as mere misdescription which does not affect the identity
of the property sold.””

CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.186 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ALONGWITH
CIVIL APPLICATION NO. 407 OF 2012
IN
FIRST APPEAL NO.186 OF 2012
DISTRICT : THANE

Mrs. Meera Unnikrishnan,

VERSUS
 Aashutosh Dyeing Mills Pvt. Ltd.,


CORAM : R.D. DHANUKA, J.

PRONOUNCED ON : 9th SEPTEMBER, 2014
Citation; 2015(2)MHLJ 331

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Whether Bank has right to recover money paid under mistake?

 The Bank, of course, has a right to recover the money paid under a mistake as per Section 72 of the Indian Contract Act, which reads as under:

72. Liability of person to whom money is paid or thing delivered by mistake or under coercion.- A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.

29. Learned Counsel appearing for the Appellant brought to our notice a judgment of this Court in Jammu and Kashmir Bank Ltd. v. Attar-Ul-Nissa and Ors. MANU/SC/0007/1966: AIR 1967 SC 540. In that case, this Court had held that if a third party, by mistake deposits the money in account of some other person, as soon as the money is deposited in the account of such third person, who is a customer of the bank, the money becomes the money of customer, and it is not open to the bank in such circumstances, without obtaining the consent of the customer, to reverse the entry of credit made in his account and in effect pay back the money to the person who had deposited it, even though it might have been deposited by mistake. In this connection, we may refer to a judgment in United Overseas Bank v. Jiwani (1977) 1 All ER 733, wherein the Defendant had an account in Switzerland in which there was a credit of US$ 11000. The Defendant intended to purchase a hotel as an investment. The Bankers in Switzerland sent by telex US$ 11000 to London bankers at the instance of the Defendant and also an advice confirming the telex. The London bank by a mistake credited two sums of US$ 11000 to the Defendant. Later, when the Defendant enquired about its balance, it was shown to be about US$ 32000. The Defendant purchased a hotel out of the amount with the London Bankers. Facts would reveal, but for this balance shown, he would not have been able to purchase the hotel. The bankers rectified its error. Consequently, there was a debit balance of US$ 9000 as against the Defendant. Plaintiff bank demanded the money of the overdraft. It was held by the Court that the extra money credited to the Defendant's account was under mistake of fact and the bank was entitled to recover it.

Banking - Wrong credit - Re-payment thereof - Appellant's challenge to action of Bank was dismissed by High Court on ground that it was dispute which arose out of contractual relationship between parties and therefore, appropriate remedy for Appellant was by way of civil suit and not writ petition - Hence, present appeal - Whether Bank was right in debiting foreign currency in Appellant's account, after long lapse of time, on ground that it was wrongly deposited in Appellant's account and driving Appellant to recover amount by way of civil proceeding - Held, Appellant used to export goods directly and submitted documents to Bank and it was for Bank to claim payment and report transaction to Reserve Bank of India to claim export benefits - Bank committed mistake when Appellant had submitted copies of export bills to it on account of amount related to Importer - Bank after seeing credit amount in name of Appellant Smart Screen Reconciliation, evidently in good faith credited said amount to account of Appellant which was meant for another Bank - Bank might have committed mistake, but now it would be impossible for Appellant to recover amount from importer since, so far as importer was concerned, it had paid amount - If Bank had not given credit of amount, then, Appellant could have proceeded against importer at earliest opportunity - Therefore, Appellant would not suffer for mistake committed by Bank - Impugned order set aside - Appeal allowed. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4807 of 2014 (Arising out Special Leave Petition (Civil) No. 28366 of 2010)

Decided On: 23.04.2014

Appellants: Metro Exporters Pvt. Ltd. and Anr.
Vs.
Respondent: State Bank of India and Ors.

Coram:K.S. Panicker Radhakrishnan and Vikramajit Sen, JJ.

Citation;AIR2014SC3206.

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Whether any mistake occurred in dictation of judgment can be corrected later?

 We were again disturbed that almost all the daily news papers today have carried reports about the contents of this judgment, which is not even complete now. Our judgment bears the date of today. Evil is that a report on its contents was published by media yesterday and today morning. It is true that after hearing almost for long two months and bearing all the materials with much clarity in our minds, we thought of delivering our judgment with the able assistance of the counsel and in their presence forthwith. Moreover, it is the duty of the court to deliver the judgment as quickly as possible so that the parties will get the fruit of their appeal right from the mouth of the court itself at once. A pronouncement can be called a judgment only when the last word is pronounced and a date is given to that pronouncement. Until then, it is possible that certain observations or conclusions in one or two segments already dictated earlier may be modified. Moreover, in a Division Bench, it is also possible that the opinion expressed by one judge need not always be accepted by the other judge, who may form a different opinion. A judgment of a Division Bench will be conclusive only when its delivery is complete and the other judge sitting in the court concurs with the view so expressed by such delivery by the other. Until then, it cannot be termed as a Judgment. It is not proper, we feel, for the responsible media people to serve half-baked judgment to the public and in case any mistake occurred in the dictation is corrected later, it will create again a chaos as to what prompted the court to deviate from the mistaken portion, which has been published by the media as the verdict of the court.

Kerala High Court

Joseph @ Baby vs S.I. Of Police on 20 January, 2005

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