Calcutta HC: Whether plaintiff must issue legal notice before filing civil suit for recovering damages for defamation?

10. In that view of the matter Mr. Dutt's submission that a letter of demand by the Solicitor was not condition precedent before filing a civil suit for damage for defamation, is irrelevant. Normally and almost universally the practice in a civil suit for defamation is a prior Solicitor's letter demanding damage or apology or both. It is a normal, natural and conventional part of the civil law and procedure of defamation. In strict law the Solicitor's demand is not a condition precedent for a suit for defamation claiming damages, but it is only a natural and appropriate step to take to notify a person that he will be faced with a suit for damage for a particular amount unless he apologizes or unless e does certain things. In the absence of such a notice the question of motive and question of cost in a suit for damage may become important. In some of the Canadian Provinces it is a condition precedent to an action for newspaper libel that the plaintiff shall give the defendant notice in writing specifying the particular statements of which he complains. No doubt, such is not the law here in India. From that point of view it cannot be said in India that the letter of demand is a condition precedent to an action for damages for defamation in a civil suit. Rut the letter of demand in a civil suit for damages for defamation is almost a universal practice in India. In fact, Gatley on Libel and Slander, Fourth Edition at page 432 speaking of English law on the point, which is more like the law in India than Canada on the point, observed:

'No such notice is requisite under our law. It is however, always advisable to give the defendant an opportunity before writ to withdraw and apologise. Such a letter will help to show that the plaintiff's real object is to vindicate his character and not merely to make money out of the attack. Moreover, a refusal to withdraw and express regret for statements that are without foundation is a matter which the jury, may take into consideration in assessing damages. And, if the reply to the demand for an apology be a letter of abuse or reiteration of the charge, such letter will materially strengthen the plaintiffs case if malice is an issue in the action." This is the common sense justification of the universal practice of Solicitor's letter of demand before filing a civil suit for damages for defamation and its essential raison d'etre. Mr. Dutt's submission apparently was that if a notice for a suit for defamation was not necessary then to give a notice of such a character while a criminal proceeding is pending, invariably constitutes contempt of such criminal proceeding. In the view that we have taken we are unable to accept that unqualified submission. {Para 10}

 IN THE HIGH COURT OF CALCUTTA

Criminal Misc. Case Nos. 206 and 214 of 1965

Decided On: 28.02.1966

Asoke Kumar Sarkar and Ors. Vs. Radha Kanto Pandey and Ors.

Hon'ble Judges/Coram:

P.B. Mukharji and A.K. Das, JJ.

Author: P.B. Mukharji, J.

Citations: AIR1967 CAL178, 1967CRILJ455,  MANU/WB/0054/1967

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Kerala HC: Orders Issued U/S 73 Of CGST Act Must Carry Digital Or Physical Signature Of Officer In Order To Be Treated As Valid

 On consideration of the submissions advanced and the legal provisions, we are of the view that Section 160 of CGST Act 2017 is not attracted. An unsigned order cannot be covered under any mistake, defect or omission therein as used in Section 160. The said expression refers to any mistake, defect or omission in an order with respect to assessment, re-assessment; adjudication etc and which shall not be invalid or deemed to be invalid by such reason, if in substance and effect the assessment, reassessment etc is in conformity with the requirements of the Act or any existing law. These would not cover omission to sign the order. Unsigned order is no order in the eyes of law. Merely uploading of the unsigned order, may be by the Authority competent to pass the order, would, in our view, not cure the defect which goes to the very root of the matter i.e. validity of the order. {Para 7}

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP (C) Nos. 20656/2024,

Decided On: 29.11.2024

Fortune Service and Ors. Vs. Union of India and Ors.

Hon'ble Judges/Coram:

Gopinath P., J.

Citation: MANU/KE/5023/2024.

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Should the Slum Authority Issue Individual Notices to All Owners and Occupiers of Immovable Property Before Declaring an Area as a Slum Area?

The short point which really falls for consideration in the present Writ Petition is whether publication of a Notification issued under Section 4 of the Slums Act in the Official Gazette is adequate compliance with Section 4 of the Slums Act and the Rules framed thereunder. The answer to this question is an emphatic no. {Para 20}

21. Section 4 of the Slums Act provides that the Competent Authority on being satisfied that an area is required to be declared as slum for one or more of the reasons set out in Section 4 of the Slums Act, the Competent Authority may, (i) by Notification in the Official Gazette so declare such area to be a slum area; and (ii) that such declaration shall also be published in such other manner (as will give due publicity to the declaration in the area) as maybe prescribed. The "other manner" of publication prescribed are to be found in Rule 3 of the Slum Rules which provide thus, viz.

"3. Other manner of Publication of Declaration under section 4(1):-

(a) The declaration referred to in sub-section (1) of section 4 shall also be published in one local newspaper as the Competent Authority may, for ensuring due publicity to the declaration in the area in respect of which the declaration is made, decide.

(b) A copy of such declaration shall be pasted on the Notice Board in the office of the Competent Authority and shall also be displayed in a conspicuous place in such area. A substance of the declaration shall also be proclaimed by beat of drum in the area.

(c) The Competent Authority shall as far as practicable serve a notice on every owner or occupier or both of the property in such area stating the effect of the declaration and specifying the time within which any aggrieved person may appeal to the Tribunal under sub-section (3) of section 4 of the Act.

A plain reading of Rule 3 makes clear that each of the above modes of publication are distinct and separate from each other. Rule 3 also makes clear that in due compliance thereof the Competent Authority is required to publish the said Notification by exercising each of the modes set out in Rule 3 and not any one or more of the modes set out. Therefore, the Competent Authority when declaring an area as a slum is mandatorily required to do each of the following, viz.

a. Publish the declaration in one local newspaper having wide circulation in the relevant area.

b. Paste a copy of the declaration on the notice board in the office of the Competent Authority.

c. Display a copy of the said declaration in a conspicuous place in the area declared as a slum.

d. Make a proclamation of the substance of the said declaration in the area declared as a slum by beat of a drum.

e. Serve notice upon every owner and occupier of the property in the area declared as a slum (i) stating the effect of the declaration and (ii) specifying the time within which an aggrieved person may Appeal to the Tribunal under Section 4(3) of the Slums Act.

It is only in cases where, for some compelling reason that it is not practicable to serve individual notice upon every owner and occupier of the said land under Section 3(c) that service of such notice shall be dispensed with. This would however require the Competent Authority to have compelling reasons for not personally serving every owner and occupier of the said area. These reasons must be recorded and available (a) for good order and (b) in the event that want of such notice is called into question by any owner and occupier of the said area. The mandatory modes of publication prescribed in Rule 3 read with Section 4 of the Slums Act is not without good reason as the effect of a declaration of land as a slum has widespread ramifications which would affect the right, title and interest of both the owners and occupiers of such land.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3838 of 2021

Decided On: 09.06.2023

Allan Sebastian D'Souza and Ors.  Vs. Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Tribunal and Ors.

Hon'ble Judges/Coram:

A.S. Doctor, J.

Citation: MANU/MH/2043/2023.

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What is duty of municipal commissioner if he issues notice for removal of unauthorized construction?

A perusal of the impugned notice shows that respondent No. 1 has not dealt with the explanation of the petitioner and has rejected the same with a cryptic observation that the same is not satisfactory and "it may not be considered". In the opinion of this Court, the very purpose of issuing a notice under Section 452(1) of the Act is to give an opportunity for a person, who has constructed the building in an illegal or unauthorised manner, to submit his explanation. It is, therefore, obligatory on the part of respondent No. 1 to consider the explanation. If satisfactory explanation is offered by the owner of the building, respondent No. 1 shall drop further proceedings. It is only in cases where such explanation is not offered, respondent No. 1 is not entitled to proceed further. Unless the Commissioner refers to the contents of the explanation and gives reasons for coming to the conclusion that the explanation is not satisfactory, he cannot proceed with further action and issue notice under Section 636 of the Act. Failure to deal with the explanation renders the very purpose of issuing notice nugatory.{Para 7}

8. As noted above, the Commissioner failed to deal with the plea of the petitioner raised in the explanation that the additions or alterations or repairs effected by him do not fall under Section 433 of the Act. The Commissioner, therefore, ought to have referred to the nature of the structure raised by the petitioner in comparison with the pre-existing structure and given his reasons for his satisfaction that construction made by the petitioner falls under Section 433 of the Act warranting action under Sections 452(1) and 636 of the Act. As the Commissioner failed to give any such reasons, the impugned notice cannot be sustained in law and the same is accordingly set aside.

 IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

Writ Petition No 18839 of 2011,

Poonamchand and Ors.  Vs.  Greater Hyderabad Municipal Corporation and Ors.

Hon'ble Judges/Coram:

Hon'ble Sri Justice C.V. Nagarjuna Reddy

Decided On: 19.09.2011

Citation: MANU/AP/0712/2011

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Whether a party other than Municipal Corporation can raise the issue of maintainability of the suit on the ground of non-issuance of statutory notice?

 Considering the above judgments both under Section 80 of C.P.C. and Section 527 of the B.M.C. Act the law as laid down can be summarised as under :-

(a) That no suit can be filed without complying with the mandatory requirement of serving a notice under Section 527 of the B.M.C. Act.

(b) Though the notice is mandatory yet the authorities on whom the notice has to be given before filing a suit can waive the notice. Considering that the plaint cannot be rejected under Order 7 Rule 11 of C.P.C. but the issue can be decided as an issue of jurisdiction and in the State of Maharashtra considering Section 9A if there be an interim application, otherwise on framing an issue and deciding the same as preliminary issue.

(c) Want of notice cannot be raised by a defendant other than the public authority to whom the notice is required to be given. If an objection is raised by a person other than public authority then the suit cannot be dismissed on the ground of want of jurisdiction.

(d) In so far as public authorities are concerned in the matter of waiver of notice they are bound to follow and comply with the order of this Court passed in Mohamed Arif H. Modan Vs. Municipal Corporation of Greater Mumbai & Ors., 1999(4) L.J. 109.

(e) The public authorities, however, cannot be estopped if at the threshold they have not raised objection of non-service of notice to raise such an objection at a later stage atleast till the filing of written statement. If objection is raised after the filing of the written statement it will be open to the Court to consider whether failure to raise the objection in the written statement amounts to waiver.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

F.I. REBELLO, J.

Smt. Sabira Aslam Sikwani Vs. Mohammed Yusuf Hussain & Ors.

Civil Revision Application No.1802 of 2002

26th February, 2003

Citation:2003(3) ALL MR 536,2003(3) MHLJ 974

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Whether an issue of non issuance of notice U/S 487 of BPMC Act can be decided as preliminary issue?

  Contention was also raised that the objection to limitation is based on Section 487 of the Bombay Provincial Municipal Corporations Act, 1949. Section 487(1) provides that no suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act; (a) until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney. Advocate, Pleader or agent, if any for the purpose of such suit, nor (b) unless it is commenced within six months next after the accrual of the cause of action. Stress is laid on Clause (b) which provides that the suit has to be filed within six months next after the accrual of the cause of action. The contention is that since the cause of action is stated to have arisen in June and July, 1993 and the suit having been filed in January 1995, it is said to be beyond the period of six months next after the accrual of cause of action. However, while advancing this argument, the provisions of Sub-section (1) of Section 487 are totally ignored. Sub-section (1) of Section 487 provides that the limitation of six months in Clause (b) would apply in cases where "any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act." Apparently, the suits required to be filed within six months next after the accrual of the cause of action are in relation to the acts done or purported to have been done in exercise of the powers under the said Act or acts which are otherwise required to be done under the said Act having been neglected to be performed by such authorities. It does not refer to the acts which have been done de hors the provisions of the Act or in contravention of the Act. Any act performed by a statutory body de hors the powers under the Act or in contravention of the provisions of the Act cannot be said to be an act done or purported to be done in pursuance or execution or intended execution of the said Act and therefore merely by referring to the pleadings in the written statement such an issue cannot be decided. It will require recording of evidence to ascertain the exact nature of the act performed by the parties and whether such acts can be said to be acts done or purported to be done in pursuance or execution or intended execution of the said Act and for the same reason the parties would be entitled to lead evidence in the matter. Being so, the parties will have to establish certain facts in that regard before the Court could arrive at any conclusive finding on such aspect and hence such an issue cannot be considered as an issue purely of law but it will be an issue of law and facts which will require recording of evidence and considering the same, such an issue cannot be said to be in each and every case a preliminary issue.{Para 20}

Citation; 2003(3)BomCR814, 2003(2)MhLj219;2003 (1) ALL M R 674

IN THE HIGH COURT OF BOMBAY

Civil Revision Appln. No. 752 of 2002

Decided On: 05.09.2002

Appellants: Shraddha Associates and Anr.
Vs.
Respondent: St. Patrick's Town Co-operative Housing Society Ltd. and Ors.

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Whether notice U/S 487 of MMC Act to Municipal Commissioner is a notice to municipal Corporation?

 This being a second appeal governed by section 100 of the Code of Civil Procedure, the substantial point for consideration before us is as follows: (1) Whether defendant No. 1 sued as Administrative Officer is a competent party defendant to suit in that capacity or not? {Para 6}

19. A bare glance at section 487 of the Bombay Provincial Municipal Corporation Act, 1949 makes it clear that the notice contemplated by that section must be a specific and definite notice which must comply with the provisions of that section. Section 487 of the said Act is as under:

“487(1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act………”

20. The rest of this section is not be recited for the purpose of argument. This section has named and designated “the Corporation, Commissioner. Transport Manager and any other Municipal Officer”. When the section itself enumerates these authorities as distinct entities, it is difficult to accept the argument that the notice to one of them, in this case notice to the Commissioner, will be sufficient notice to the Corporation. The learned Counsel for the respondents herein pointed out and in my opinion rightly that section 4 of the Bombay Provincial Municipal Corporations Act, 1949 itself gives guidance to appreciate the distinct character of the various authorities. Section 4 finds place in Chapter II, which deals with constitution-Municipal authorities. Section 4 is as follows:

“4,(1) The municipal authorities charged with carrying out the provisions of this Act are for each City:—

(a) a Corporation;

(b) a Standing Committee;

(c) a Municipal Commissioner;

and in the event of the Corporation establishing or acquiring a Transport Undertaking;

(d) a Transport Committee;

(e) a Transport Manager.

21. All these sub-clause from (A) to (E) provide that the distinct authorities are charged with carrying out the provisions of the Act. It is not necessary, to refer to various sections which deal with different functions of the authorities. The Corporation under section 6 of the Act is itself a body corporate and have perpetual succession and a common seal and by such name may sue and be sued and by such a name. If sections 4 and 5 of the said Act are read together and bearing in mind the distinct authorities constituted under section 4 of the Act, it is not possible to accept the contention that the notice to the Commissioner can also said to be the notice to the Corporation within the meaning of section 487 of the Act.

22. As the words of the statute i.e. the provisions of section 487 of the said Act and section 4 as quoted above of the Act are in my opinion quite clear to express the intention of the Legislature, it is not possible to accept the contention that the notice given to the Commissioner should be treated as sufficient compliance of section 487 of the Bombay Provincial Municipal Corporation Act. In this view of the matter, I do not accept the contention of the learned Counsel for the appellant that the notice given to the Commissioner is a valid notice and the judgment of the Appellate Court is erroneous in that behalf.

Bombay High Court

Bajirao Tukaram Manav vs Administrative Officer And Anr. on 30 October, 1984

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Whether court should order the tenant's eviction on the ground that the municipal corporation has issued demolition notices regarding rented premises if said order has lost efficacy?

  On a consideration of the facts and circumstances of this case, I am disposed to hold that it is open to a Court hearing the landlord's suit under Section 13(1)(hhh) of the Rent Act to enquire and find out whether there is a valid subsisting order of the municipal authorities, requiring the immediate demolition of the suit premises. The landlord can certainly produce such an order and rely upon the fact that he is directed by the municipal authorities to effect immediate demolition of the premises. But it is open to the defendants to adduce evidence and bring facts to the notice of the Court and show that the efficacy of the demolition order is considerably impaired on account of the subsequent or intervening events. If the Court is satisfied that having regard to the facts and circumstances of the case, the initial order of the municipal authorities has lost its efficacy, then the Court may not pass a decree for eviction against the tenants. {Para 11}

12. In the present case, as stated earlier, the municipal authorities, after issuing the first requisition addressed to the landlords, decided to act departmentally and demolish the premises. In fact the municipal authorities while engaged in the act of demolition through their contractors abandoned the further work only on condition that the tenants will effect the necessary repairs to the satisfaction of the municipal authorities. As told by the Municipal Engineer, the repairs were, in fact, made. The tenants also paid the labour charges incurred by the municipal authorities while they were engaged in the demolition work and thereafter no further action was either contemplated or in fact taken by the municipal authorities. All these intervening facts and events clearly show that the urgency implicit in the demolition order is no longer in existence. No emergent action is required in the matter. Once the Court is convinced about all this, the Court cannot act on the earlier order and proceed to pass a decree for eviction. The satisfaction that is contemplated by Section 13(1)(hhh) of the Rent Act is not a mere formal thing. The Court must apply its mind to all the facts and circumstances of the case including the order of demolition and then come to the conclusion one way or the other : i. e. whether or not a decree for eviction should be passed against the tenant. The landlord is merely carrying out the order issued by the municipal authorities, who have issued the order in public interest. If the municipal authorities are no longer interested in the demolition of the premises, the landlord cannot be allowed to use it as a handle or lever to somehow evict the tenants from the suit premises

Bombay High Court

Mrs. Piadad Fernandez vs K.M. Ramesh on 22 January, 1970

Equivalent citations: (1970) 72 BOMLR 569 a

Bench: S Bhasme

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Whether accused in cheque dishonour case can be acquitted if complainant has failed to produce original notice?

At the outset, it does appear that the complainant failed to

prove the notice sent by producing the original of the notice. What

was produced is only the photo copy. Moreover, the postal

acknowledgment card also has not been produced to prove that notice

has been served on the accused. Moreover, the complainant has also

not produced any invoice that proves that there was a legally

enforceable debt to the complainant because the invoice which has

produced does not indicate anywhere the name of the sole proprietary

M/s.Rajhans Cloth House and that document did not have any

evidence to prove that the complainant had received the goods

mentioned in the document.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE SIDE

CRIMINAL APPEAL NO.976 OF 2002

M/s.Rajhans Cloth House V/s.  Annappa Fakira Manjalkar 

CORAM: K.R.SHRIRAM,J

DATE : 17.10.2019

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What is importance of issuing notice in representative suit?

Admittedly, the trial court failed to comply with the provisions of Order, 1, Rule 8, C.P.C. The said provision of law is mandatory in nature. In the absence of any notice, the provisions of Sub-rule (2) would become redundant and grave injustice may result there from in the form of a decree against persons who were never told that a case was pending against them. It was held in Radha Kishan. v. Raja Ram MANU/PH/0187/1976 : (1976) 78 PLR 271 that the issue of a notice is not a mere empty formality but a sine qua non for the applicability of the rule. Under the circumstances, the lower appellate court rightly set aside the decree of the trial court and remanded the case for fresh decision after complying with the provisions of Order 1, Rule 8....

17. Orissa High Court has gone a step further in recognising the importance of the notice under Rule 8(2) CPC in "Kusasan Samal v. Chandramani Pradhan" MANU/OR/0409/2002 : AIR 2003 Orissa 157. In that case notice to the public was issued but was found to be defective and the High Court held that when the notice under Rule 8(2) CPC is defective even then the entire proceedings in a suit of representative character get vitiated. This is what was held in this judgment:

Now coming to the question as to whether notice indicates all the requirements or not, reference may be made to a decision of this Court in the case of Purna Chandra Panigrahi v. Baidya Jani reported in (1992) 74 CLT 309. In the said decision this Court held that notice under Order 1, Rule 8(2), C.P.C. is mandatory in nature and is an essential pre-condition for trial of the suit. Notice under the provision must disclose the nature of the suit as well as relief's claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or opposite it. The notice must state about why the suit has been filed and what is the relief claimed therein, and it must also state who are the persons selected to represent the cause. Relevant portion of the judgment is quoted below:

It is not in dispute and indeed learned Single Judge has accepted the position that notice under Order 1, Rule 8, C.P.C. is of mandatory character. The provisions of Order 1, Rule 8, C.P.C. are mandatory and not directory in nature and notice under Order 1, Rule 8(2), C.P.C. is an essential pre-condition for trial of the suit. This view was succinctly expressed in Harihar Jena v. Bhagabat Jena MANU/OR/0077/1987 : AIR 1987 Orissa 270 and Lakhana Nayak v. Basudev Swamy MANU/OR/0011/1991 : AIR 1991 Orissa 33. The notice under the provision must disclose the nature of the suit as well as reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or opposite it. The notice must state about why the suit has been filed and what is the relief claimed therein, and it must also state who are the persons selected to represent the cause. The object for which Order 1, Rule 8, C.P.C. has been enacted is really to facilitate the decision of question in which a large body of persons are interested without recourse to ordinary procedure where each individual has to maintain an action by a separate unit. Where there is community of interest amongst numerous persons to avoid expenses, trouble and multiplicity of proceedings, few of them are allowed to represent the whole.

19. Such being the significance of the issuance of notice under Rule 8(2) of Order 1 CPC and consequences of a defective notice, the non- issuance of the notice would certainly vitiate the entire proceedings conducted by the trial Court in the case in hand after grant of permission to the appellant-plaintiff to sue in a representative capacity without ordering issuance of a public notice of the suit. The learned trial Court was not justified in proceeding to frame the issues arising out of the pleadings of the parties who had been impleaded by the plaintiff without first issuing notice of the suit to the public at large and without that having been done no decision on the merits of the case could have been passed.

IN THE HIGH COURT OF DELHI

RFA N0. 283 of 2008

Decided On: 06.10.2009

 Anang Pal  Vs.   Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

P.K. Bhasin, J.

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Supreme Court: In cheque dishonour case, first notice will constitute cause of action if second notice was given beyond limitation

 In the present case, the facts narrated above indicate that the appellant issued a
legal notice on 31 December 2015. This was within a period of thirty days of the receipt
of the memo of dishonour on 4 December 2015. Consequently, the requirement
stipulated in proviso (b) to Section 138 was fulfilled. Proviso (c) spells out a requirement
that the drawer of the cheque has failed to make payment to the holder in due course or
payee within fifteen days of the receipt of the notice. The second respondent does not
as a matter of fact, admit that the legal notice dated 31 December 2015 was served on
him. The appellant has in the complaint specifically narrated the circumstance that
despite repeated requests to the postal department, no acknowledgment of the notice  was furnished. It was in these circumstances that the appellant issued a second notice
dated 26 February 2016. Cognizant as we are of the requirement specified in proviso
(b) to Section 138, that the notice must be issued within thirty days of the receipt of the
memo of dishonour, we have proceeded on the basis that it is the first notice dated 31
December 2015 which constitutes the cause of action for the complaint under Section
138.
11 The complaint was instituted on 11 May 2016. Under Section 142(1), a
complaint has to be instituted within one month of the date on which the cause of action
has arisen under clause (c) of the proviso to Section 1386. The proviso however
stipulates that cognizance of the complaint may be taken by the court after the
prescribed period, if the complainant satisfies the Court that he had sufficient cause for
not making a complaint within such period. Both in paragraphs 7 and 8 of the
complaint, the appellant indicated adequate and sufficient reasons for not being able to
institute the complaint within the stipulated period. These have been adverted to above.
The CJM condoned the delay on the cause which was shown by the appellant for the
period commencing from 6 April 2018. However, if paragraphs 7 and 8 of the complaint
are read together, it is evident that the appellant had indicated sufficient cause for
seeking condonation of the delay in the institution of the complaint. 
We are of the view that sufficient cause was shown by the appellant for condoning the delay
in instituting the complaint taking the basis of the complaint as the issuance of the first

legal notice dated 31 December 2015.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 000868 OF 2019

Birendra Prasad Sah Vs The State of Bihar 

Dr Dhananjaya Y Chandrachud, J
Dated:May 8, 2019.
Citation: (2019) 7 SCC 273

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Whether magistrate can direct opening of envelope of notice while deciding application for condonation of delay in cheque dishonour case?

The aforesaid observations and the law laid down by the Apex Court show that condonation of delay is within the discretion of the Court and the Court is expected to keep in mind the aforesaid things. If the J.M.F.C. forms opinion that the envelops contain nothing and no statutory notices were sent by the complainant to the accused, this circumstance can be considered by the J.M.F.C. at the time of deciding the delay condonation applications. It cannot be said that consideration of such circumstance amounts to touching of the merits of the complaints for final disposal. If this circumstance is considered, the Court will form opinion as to whether there is some arguable case in the complaint itself for proceeding ahead like issuing process in the matter. If the J.M.F.C. has formed the opinion that such exercise is required in the present matter, there is nothing wrong in it. No particular procedure is prescribed for deciding the delay condonation application and it is up to the Magistrate to follow the procedure required in view of peculiar circumstance. This Court holds that there is nothing wrong in the order made by the J.M.F.C. No interference is warranted in the orders made by the learned J.M.F.C.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 5808 of 2016, Appln. 5809, 5810 and 5811/2016

Decided On: 20.07.2018

 Nandlal Gangaram Ranglani  Vs.  Mahak Amit Ranglani and Ors.

Hon'ble Judges/Coram:

T.V. Nalawade, J.

Citation: 2019(1) MHLJ 804

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Whether accused in cheque dishonour case can prove his defence by replying to notice and by effective cross examination?

The entries in the pass-book Exh. 30 show that an amount of Rs. 1,00,000/- was indeed transferred on 28.02.2013 to a particular account number. Another entry dated 02.09.2013 shows that it was paid to self but a note was appended in the handwriting of the appellant to the effect that it was given to the respondent. At one place, the note states that it was given to the respondent for Graceland Realities and at another place it just mentions the name of the respondent. The entry pertaining to the date 28.02.2013 shows transfer of Rs. 1,00,000/- to a particular account number but there is nothing placed on record on behalf of the appellant to show that the said account number belonged to the respondent. Thus, this entry falls short of proving that such an amount was indeed transferred to the respondent on the said date. As regards entry pertaining to Rs. 15,000/- dated 02.09.2013, the hand written note of the appellant creates a doubt that the said amount was given to the respondent for Graceland Realities. This is significant in the backdrop that the appellant did have transactions pertaining to immovable property with the said Graceland Realities of which the respondent was admittedly an employee.

13. As regards payment of Rs. 51,000/- by cash on 05.09.2012, there is no evidence on record. In respect of claim of the appellant that she advanced Rs. 35,000/- on 10.11.2012 by cheque in favour of the respondent, there is no evidence on record because the pass-book at Exh. 30 pertains to entries starting from the date 28.02.2013. Thus, the claims made by the appellant in her oral evidence pertaining to advancing of aforesaid amounts to the respondent are not supported by documentary evidence on record. Even otherwise, the said amounts stated in the oral evidence of the appellant, add up to Rs. 2,01,000/- while the cheques in question, purportedly issued to repay the loan are only for an amount of Rs. 2,00,000/-. The difference in said two amounts is not satisfactorily accounted for by the appellant. In this situation, the proof of foundational facts pertaining to advancing of loan to the respondent have not been satisfactorily proved by the appellant. The presumptions under the said provisions of the Act would stand triggered only if such foundational facts were proved.

14. Even otherwise, such presumptions are rebuttable on the touchstone of preponderance of probabilities. The defence has to only show that its stand is probable and that would lead to rebuttal of presumptions. In the present case, the reply notice dated 01.04.2014 issued by the respondent assumes significance, because not only did the respondent deny the claims made by the appellant in her statutory notice, but defence of the respondent was clearly indicated in the reply notice. Despite the respondent calling upon the appellant not to deposit the remaining two cheques, the appellant went ahead to deposit the same. In these circumstances, the learned counsel for the appellant placed reliance on the receipt at Exh. 31 to claim that if nothing else, the said document was a clear indicator that the respondent had indeed received amounts towards loans and the cheques were issued for repayment thereof. A perusal of the said receipt at Exh. 31 shows that a reference is made to the loan and details of three post dated cheques are given.

15. But, a perusal of the cross-examination of the appellant in the witness box shows that a specific objection was raised on behalf of the respondent in respect of the receipt at Exh. 31 and signature on the same was denied. In the face of such denial by the respondent, it was incumbent upon the appellant to have proved signature of the respondent on the said receipt. No effort was taken by the appellant to do so. It was claimed that when signatures on the cheques were not denied and an assertion had been made by the appellant that the receipt at Exh. 31 bore the signature of the respondent, no further proof was required. But, the said stand taken on behalf of the appellant is unsustainable because it was she who had claimed that the receipt at Exh. 31 was indeed signed by the respondent, which was denied by him. Therefore, it was for the appellant to have taken appropriate steps to prove that the receipt was indeed signed and executed by the respondent. As no such steps were taken, the receipt at Exh. 31 could not have become a basis for the appellant to claim that the respondent had admitted of having taken loan from the appellant.

16. The trial Court in the impugned judgments and orders has taken into consideration the entire oral and documentary evidence on record. It was found that there were transactions between the parties pertaining to immovable property. It was found that the presumptions in the present case were satisfactorily rebutted by the respondent by responding to the statutory notice and also effectively cross-examining the appellant. It is settled law that an accused in such cases can rebut the presumption not only by placing on record positive evidence and examining witnesses, but also by discrediting the complainant by effective cross-examination.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 179, 180 and 182/2018

Decided On: 09.08.2018

Mercy Vs. Cyril Enoch Arland

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(1) MHLJ 799

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When it is not necessary to issue notice to municipal corporation prior to filing of suit against it ?

As per provisions of Section 487 of the said Act a protection is granted with regard to any act done or purported to be done in pursuance or in execution or intended execution of the said Act. In that regard unless a notice is given by the plaintiff with duration of one month and a suit filed within six months of the accrual of the cause of action, such suit cannot be instituted. Having found that the plaintiff Trust was entitled for exemption under Section 132(1)(b) of the said Act it was clear that the Trust was not liable to be assessed for payment of tax. If that be the situation then issuance of the demand notice on 04/01/2011 cannot be said to be an act done in pursuance of or in execution of the provisions of the said Act. In other words there being an exemption from payment of taxes under Section 132(1)(b) of the said Act, there would be no cause to demand such taxes by issuing any demand notice. Moreover, the said demand notice has been held to be illegal. It is thus clear that the demand notice was issued despite the fact that the plaintiff was exempted from payment of taxes. In such situation it will have to be held that the suit was not liable to be dismissed for failure to issue notice under Section 487 of the said Act as present case such notice was not required to be issued.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 645 of 2017

Decided On: 05.07.2018

Gorakshan Sanstha  Vs. Akola Municipal Corporation

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(1) MHLJ 776

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Whether person refusing to accept registered letter is deemed to have knowledge of its contents?

 Section 27 of the General Clauses Act, 1897 deals with the topic-'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus arises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, pre-paying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee . Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under Section 27 of the General Clauses Act as well as under Section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed, with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1402 of 1979

Decided On: 20.02.1981

 Harcharan Singh  Vs. Shivrani and Ors.

Hon'ble Judges/Coram:

V.D. Tulzapurkar, D.A. Desai and A.N. Sen, JJ.

Citation: (1981) 2 SCC 535

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Whether it is necessary to issue notice to other side prior to filing of application U/S 34 of Arbitration Act?

 Insofar as the submission of the learned Counsel for the Respondent that if Section 34(5) is considered as directory, the entire purpose of the amendments would be rendered otiose is concerned, in my view, there is no merit in this submission made by the learned Counsel for the Respondent. Since there is no consequence provided in the said provision in case of non-compliance thereof, the said provision cannot be considered as mandatory. The purpose of avoiding any delay in proceeding with the matter expeditiously is already served by insertion of appropriate Rule in Bombay High Court (Original Side) Rules. The Court can always direct the Petitioner to issue notice along with papers and proceedings upon other party before the matter is heard by the Court for admission as well as for final hearing. The vested rights of a party to challenge an award Under Section 34 cannot be taken away for non-compliance of issuance of prior notice before filing of the arbitration petition

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7314 of 2018 (Arising out of SLP (Civil) No. 4475 of 2017)

Decided On: 30.07.2018

The State of Bihar and Ors.Vs.  Bihar Rajya Bhumi Vikas Bank Samiti

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Indu Malhotra, JJ.

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Whether prosecution for dishonour is cheque is maintainable if reminder notice is sent?

It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption.

15. This Court in catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed2. Though in process of interpretation right of an honest lender cannot be defeated as has happened in this case. From the perusal of relevant Sections it is clear that generally there is no bar under the N.I. Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the Appellant as has happened in this case.

16. Moreover the first notice sent by Appellant on 12-04-1991 was effective and notice was deemed to have been served on the first Respondent. Further, it is clear that the second notice has no relevance at all in this case at hand. Second notice could be construed as a reminder of Respondent's obligation to discharge his liability. As the complaint, was filed within the stipulated time contemplated under Clause (b) of Section 142 of the N.I. Act, therefore Section 138 r/w 142 of N.I. Act is attracted. In the view of the matter, we set aside the impugned judgment of the High Court.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 455 of 2006

Decided On: 01.03.2017

 N. Parameswaran Unni Vs. G. Kannan and Ors.

Hon'ble Judges/Coram:

N.V. Ramana and Prafulla C. Pant, JJ.

Citation: 2017(6) MHLJ 441

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Whether court can rely on notice given by Advocate if he is not examined in court?

 The trial court was of the view that there was no violation of the terms of the lease deed as they had put in sufficient efforts in getting the rent agreement renewed. For arriving at such conclusion, the trial court and the High Court placed reliance upon Ex. A-18 (13.06.1978) a notice allegedly issued by the Plaintiff's advocate Gulzar Mohd. intimating the tenants that they are willing to renew the lease as per the terms of the rent agreement provided the tenants pay enhanced rent @ Rs. 800/- per month. This piece of evidence was categorically denied by the landlord. The trial court did not keep in view the denial of the Appellant-landlord regarding issuance of Ex. A-18 notice (13.06.1978). In the light of denial of issuance of Ex. A-18 notice, it was necessary to adduce evidence to prove that Ex. A-18 notice was actually issued on instructions by the landlord. The burden was upon the Respondents-tenants to prove that the said notice was issued by advocate Gulzar Mohd. on the instructions of the landlord. The trial court pointed out that the Respondents-tenants had taken steps to examine the said advocate; but he had not appeared before the court. From the materials on record, it is not known as to what steps were taken by the tenants to examine the said advocate Gulzar Mohd. The trial court, in our view, could have very well exercised its power Under Order XVI Rule 14 Code of Civil Procedure and summoned the said advocate as witness. In the absence of examination of the said advocate Gulzar Mohd., the trial court ought not to have placed reliance upon Ex. A-18 notice alleged to have been issued on the instructions of the landlord.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 20915 of 2017 (Arising out of SLP (C) No. 27765 of 2010)

Decided On: 06.12.2017

Syed Sughra Zaidi Vs.  Laeeq Ahmad (dead) through L.Rs. and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and R. Banumathi, JJ.

Citation: (2018) 2 SCC 21

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Whether service of notice can be presumed even if postal remark is left?

   Jammu  and Kashmir Houses and Shops Rent  Control Act,
1966: Section 11--'Serves a notice in writing through post'-
-Inter-pretation  of--Posting a pre-paid  registered  letter
containing tenant's  correct address--Sufficiency of.



HEADNOTE:
    In November 1976, the respondent issued a notice to  the
appellant  under section 11 of the Jammu & Kashmir Houses  &
Shops  Rent  Control Act, 1966 calling upon it to  pay  the
arrears of rent. The notice also terminated the tenancy  and
called upon the appellant to vacate the  demised  premises.
The notice sent by registered post was received back by  the
respondent  with  the  endorsement  "left  without  address,
returned to sender". Thereupon the respondent caused a copy
of  the   notice  to be fixed to one of  the  doors  of  the
premises in question. No payment of rent was however made by
the appellant subsequently. The respondent, therefore, filed
a  suit in June 1977 seeking ejectment of  the appellant  on
the  ground  of default in the payment of  rent.  The  Trial
Court  ordered eviction. and the appellant's appeals  before
the District .Judge and the High Court against the order  of
eviction failed.
    Before  this Court the appellant  contends that (1)  the
safeguards in ss. 11 and  of the Act are intended for the
benefit  and protection of the tenant and therefore,   where
the  Act provides for the service of the  notice,  by  post.
this requirement has to be strictly complied with; (2) such
postal service can neither be presumed nor considered to  be
good service where The latter is returned to the sender  due
to non-availability of the addressee; (3) in the absence  of
any enabling provision, service by  some other mode, such as
affixture,  cannot be treated as sufficient compliance with
the statute; and (4) where a power is given to do a  certain
thing  in a certain way, the thing must be done in that  way
or  not  at  all  and  other  methods  of  performance  are
necessarily forbidden.
    Dismissing the appeal, it was,
    HELD: (1) The proviso to clause (i) of section 11(1) and
the proviso to section 12(3) are intended for the protection
        PG NO 983
        PG NO 984
of  the tenant. A Nevertheless, it will be easy to see that
too strict and literal a compliance of their language  would
be impractical and unworkable. [988H; 989Al
    (2)  The proviso insists that before any amount of rent
can  be  said to be in arrears, a notice has  to  be  served
through post. All that a landlord can do to comply with this
provision   is to  post  a  prepaid  registered   letter
(acknowledgment  due or otherwise) containing  the  tenant's
correct  address.  Once  he  does this and  the  letter  is
delivered to the post office, he has no control over it.  It
is  then  presumed to have been delivered to  the  addressee
under s. 27 of the General Clauses Act. [989A-B]
    (3)  To  interpret the provision as requiring  that  the
letter must  have been actually delivered to the  addressee,
would be virtually rendering it a dead letter. [989F]
    (4) If a registered letter addressed to a person at  his
residential address does not get served in the normal course
and  is  returned,  it can   only  be attributed  to  the
addressee's  own conduct. If he is compelled to be away  for
some  time,  all  that he has to do is to  leave  necessary
instructions with the postal authorities. [989H; 990A]
    (5)  The  more  reasonable,  effective,  equitable  and
practical interpretation would be to read the words "served"
as  "sent by post". correctly and properly addressed to  the
tenant,  and the word "receipt" as the tender of the  letter
by  the postal peon at the address mentioned in the  letter.
No  other  interpretation will fit the situation  as  it  is
simply not  possible  for  a  landlord  to  ensure  that  a
registered  letter  sent  by  him gets  served  on,  or  is
received by the tenant. [990B-C]
    (6)  The statute prescribes only one method  of  service
for  the notice and none other. To require service  by some
other  method  to  be effected over  and  above  the  postal
service would be to travel outside the statute. [99OF]
    (7) Where the statute does not specify any additional or
alternative  mode  of service, there can be no warrant  for
importing into the statute a method of service on the  lines
of  the provisions of C.P.C. This Court would therefore  not
like  to hold that a substituted'' service. such as the  one
effected by the landlord in the present case, is a necessary
or permissible requirement of the statute. [990G]
    (8)  The provision in regard to the notice contemplated
by  the  statute is unsatisfactory and it is hoped that  the
        PG NO 985
legislature would soon set it right. On the provision as  it
stands,  a landlord must be held to have complied  with  the
statutory   requirement  by  sending  a   notice   correctly 

addressed to the tenant by registered post.

Supreme Court of India

Madan & Co vs Wazir Jaivir Chand on 28 November, 1988

Equivalent citations: 1989 AIR 630, 1988 SCR Supl. (3) 983

BENCH:
RANGNATHAN, S.
MUKHARJI, SABYASACHI (J)

Citation: AIR 1989 SC 630

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Whether eviction suit can be dismissed if landlord fails to give notice to tenant prior to filing of suit?

 Insofar as the second ground is concerned, perusal of Section 16 would show that when eviction of tenant is sought on any of the grounds mentioned under Section 16(1) of the said Act, no notice is required. It is clear from the perusal of Section 16(1) that if the landlord satisfies the conditions mentioned in the grounds available under Section 16(1) of the said Act, he can directly file a suit for possession. In the facts of the present case, though the learned appellate Court has concurred with the findings of fact arrived at by the learned trial Court that the petitioner has proved his case for bona fide need and that it was also proved that the petitioner does not have any alternate premises for starting his business, has reversed the order solely on the ground that the suit was premature. I find that the said findings are totally in ignorance of the provisions of Section 16(1) of the said Act.

14. I have perused the judgment of the trial Court as well as the appellate Court. The learned trial Court, elaborately discussing the evidence on record, has come to a finding of fact that the suit premises were required by the petitioner for his bona fide occupation for running business of jewellery. It has also come in the evidence that there is a partition in the family and that the petitioner is residing separately and as such requires the premises to start his business separately. The said finding of fact is rightly confirmed by the learned appellate Court. The learned appellate Court, in unequivocal terms, concurred with the said finding and held that the petitioner needs the premises for bona fide occupation and also held that the petitioner wants to start his business there. Only on the ground that the suit was premature, the decree for possession on the ground under Section 16(1)(g) of the said Act has been reversed. As I have already held hereinabove that for filing a suit for eviction under Section 16(1)(g), it is not necessary to issue a notice of 90 days as contemplated under Section 15 of the said Act, I find that the findings of the learned appellate Court are totally unsustainable in law.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 147 of 2005

Decided On: 27.07.2005

Madhukar S/o Laxman Umalkar Vs. Keshao S/o Laxman Shilawant

Hon'ble Judges/Coram:

B.R. Gavai, J.

Citation: 2005(3) MHLJ947,2005 BOM RC440

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