ALLIED LAWS

11. Ravi Dixit vs. State of U.P. and another Application u/s 482 No. 14068 of 2020 (All.)(HC) Date of order: 23^rd September, 2020 Bench: Dr. Kaushal Jayendra Thaker J.

Dishonour of cheque – Intention not to make payment – Complainant need not wait 15 days [Negotiable Instruments Act, 1881, S. 138]

FACTS

A cheque of Rs. 5,00,000 was issued on 1^st March, 2019 and another cheque of Rs. 5,98,000 on 2^nd March, 2019. Both were dishonoured on 28^th May, 2019 as the drawer (the petitioner here) had directed the bank to stop the payments. The complainant sent a notice to the petitioner on 11^th June, 2019. A response was received on 25^th June, 2019. But the complainant did not receive any money; therefore, on 29^th June, 2019, he filed a complaint u/s 138 of the Negotiable Instruments Act, 1881.

The Judge, after referring to the dates, was satisfied that a prima facie case is made out for issuance of notice and so on 3^rd September, 2019 passed the summoning order.

The petitioner approached the High Court stating that the complainant should have waited for a period of 15 days and should not have filed the complaint on 29^th June, 2019.

HELD

The provision of section 138 of the N.I. Act cannot be interpreted to mean that even if the accused refuses to make the payment the complainant cannot file a complaint. Proviso (c) of the said section is to see the bona fides of the drawer of the cheque and is with a view to grant him a chance to make the payment. The proviso does not constitute ingredients of an offence punishable u/s 138. It simply postpones the actual prosecution of  the offender till such time as he fails to pay the amount, then the statutory period prescribed begins for lodgement of complaint.

The petitioner replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, the complainant need not wait for the minimum period of 15 days. The petition was dismissed with cost.

12. High Court on its own motion vs. the State of  Maharashtra Suo motu WP (ST) No. 93432 of 2020 (Bom.)(HC) Date of order: 29^th October, 2020 Bench: Hon’ble C.J., A.A. Sayed J., S.S. Shinde J., K.K. Tated J.

Covid-19 – Extension of interim orders – Eviction, demolition and dispossession – Passed by the Courts in Maharashtra and Goa – Until 22^nd December, 2020

FACTS / HELD

Although the situation in the State of Maharashtra because of the pandemic has improved over the last few days, access to the Courts of law is not easy. To ensure that persons suffering orders of dispossession, demolition, eviction, etc., passed by public authorities are not inconvenienced by reason of inability to approach the Courts because of the restrictions on movements imposed by the State Government, as well as the requirement to maintain social distancing norms, the Court considered it just and proper to extend the interim orders passed by it on this writ petition till 22^nd December, 2020 or until further orders, whichever is earlier.

13. Srei Equipment Finance Ltd. vs. Seirra Infraventure Pvt. Ltd. A.P. 185 of 2020 (Cal.)(HC) Date of order: 7^th October, 2020 Bench: Moushumi Bhattacharya J.

Arbitration – Interim relief – Jurisdiction – Where a part of the cause of action has arisen – Valid [Arbitration and Conciliation Act, 1996, S. 2(1)(e)(i), S. 9]

FACTS

The petitioner / finance company has sought an injunction restraining the respondent / hirer from dealing with the assets leased by it (the petitioner) to the respondent under a Master Lease Agreement entered into between the parties on 15^th March, 2018. The petitioner has alleged outstanding rental dues as on the date of termination of the agreement and has sought for appointment of a receiver to take possession of the assets together with an order directing the respondent to furnish security to the extent of Rs. 75,19,388.

The respondent has raised a point of maintainability of the application on the ground that this Court does not have territorial jurisdiction to entertain the application as would be evident from the pleadings and documents, as also the relevant provisions of the Arbitration and Conciliation Act, 1996.

HELD

An application u/s 9 of the Arbitration and Conciliation Act, 1996 can be filed where a part of the cause of action has arisen or where the seat of arbitration has been chosen by the parties. It is stated that part of the cause of action has arisen within the jurisdiction of this court.

Further, it must also be borne in mind that the parties have consented to the jurisdiction in clause 18(k) as well as the seat of arbitration as provided in clause 18(l) of the agreement. Both these clauses point to ‘Kolkata’. Section 2(1)(e)(i) of the 1996 Act designates the principal Civil Court of original jurisdiction in a district, including the High Court in exercise of its Ordinary Original Civil Jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration for the purpose of applications in matters of domestic arbitration under Part I of the Act. Therefore, the preliminary objection of the respondent with regard to the jurisdiction of this Court, fails.

14. Paramount Prop. Build. Pvt. Ltd. through its authorised signatory Mr. Anil Kumar Gupta vs. State of U.P. and 118 others Writ (C) No. 12573 of 2020 (All.)(HC) Date of order: 4^th November, 2020 Bench: Surya Prakash Kesarwani J.,  Dr. Yogendra Kumar Srivastava, J.

Promoters – Delay in handing over possession of the flats – Contravention of obligation cast upon promoters – Authority empowered to award interest [Real Estate (Regulation and Development) Act, 2016, S. 18, S. 38]

FACTS

The petitioner is a promoter and the respondent Nos. 3 to 119 are allottees. The petitioner could not deliver possession of the flats to the allottees in time and there occurred a delay. The allottees filed separate complaints before the Uttar Pradesh Real Estate Regulatory Authority, Gautam Buddh Nagar, who passed the impugned orders awarding interest.

A writ petition was filed on the ground that the impugned orders are without jurisdiction inasmuch as the power to grant interest does not vest with the Authority.

HELD

Section 18 of the RERA Act, 2016 is in respect of return of amount and compensation in case the promoter fails to complete or is unable to give possession of an apartment, plot or building. Sub-section (1) of section 18 provides for two different contingencies. In case the allottee wishes to withdraw from the project, the promoter shall be liable on demand to return the amount received by him to the allottees in respect of the apartment, plot or building as the case may be, with interest at such rate as may be prescribed, including compensation in the manner as provided under the Act.

Alternatively, where the allottee does not intend to withdraw from the project, the promoter shall, as per the proviso to section 18(1) of the Act, be liable to pay interest for every month of delay till the handing over of the possession, at such rate as may be prescribed.

Further, section 38(1) of the Act confers powers upon the Authority to impose penalty or interest in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents, under the Act or the Rules or the Regulations made thereunder.

The promoter having contravened the aforesaid obligation with regard to giving possession of the apartment by the specified date, and complaints in this regard having been filed by the allottees, the Authority exercising powers u/s 38(1) of the Act is fully empowered to impose interest in regard to contravention of the obligation cast upon the promoter.