By Dr. K. Shivaram
Senior Advocate | Rahul K. Hakani | Shashi Bekal
Advocates
11. Ravi Dixit vs. State of U.P. and another Application u/s 482 No. 14068 of 2020
(All.)(HC) Date of order: 23rd 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 1st
March, 2019 and another cheque of Rs. 5,98,000 on 2nd March,
2019. Both were dishonoured on 28th 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 11th June, 2019. A response was
received on 25th June, 2019. But the complainant did not receive any
money; therefore, on 29th 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 3rd 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 29th
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: 29th 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 22nd 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
22nd 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: 7th 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 15th 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: 4th 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.
