By DR.K. Shivaram
Senior Advocate| Rahul K. Hakani |Sashank Dundu
Advocates
1.
Cross objection to be disposed
of independently on merits [Code of Civil Procedure, 1908 (CPC), Order XLI Rule
22]
Badru (since deceased) through L.R. and
Ors. vs. NTPC Limited and Ors. AIR 2019 Supreme Court 3385
The land in question belonged to the
appellants (landowners). The suit land was acquired by the State for the NTPC
for public purpose. A compensation of Rs. 3,87,383 per bigha was awarded
to the appellants for the land. But the appellants felt aggrieved and
approached the Civil Court for determination of the compensation offered by the
Land Acquisition Officer. The Civil Court partly allowed the reference in
favour of the appellants and enhanced the compensation. The State and the NTPC
felt aggrieved by the award and filed appeals before the High Court. The
appellants instead of filing a regular appeal, filed cross objection under
Order 41 Rule 22 of the CPC and sought enhancement in the compensation awarded.
The High Court dismissed the appeals filed by the NTPC / State and, in
consequence, also dismissed the cross objection filed by the appellants. The
effect of the dismissal of the appeals and cross objection was upholding of the
award passed by the Civil Court. The landowners felt aggrieved by the rejection
of their cross objection and filed the present appeals by way of a special
leave before the Supreme Court.
It was observed by the Supreme Court that
one remedy was by way of appeal and the other remedy was to file cross
objection. In this case, the landowners took recourse to the second remedy of
filing cross objection. The High Court having dismissed the appeals filed by
the State / NTPC was, therefore, required to examine whether any case was made
out by the landowners in their cross objection for enhancement of compensation.
Order 41 Rule 22(4) of the CPC provides that where, in any case in which any
respondent has under this Rule filed a memorandum of objection, the original
appeal is withdrawn or is dismissed for default, the objection so filed may
nevertheless be heard and determined after such notice to the other parties as
the Court thinks fit. Merely because the High Court dismissed the appeals filed
by the respondents herein, though on merits, yet that by itself would not
result in dismissal of the landowners’ cross objection also.
In view of the same, the Supreme Court held
that the cross objection had to be disposed of on its merits notwithstanding
the dismissal of the same by assigning reasons. The case was accordingly
remanded to the High Court for deciding the cross objection filed by the
landowners in accordance with law.
2.
Doctrine of promissory estoppel
– New Package Scheme of Incentives, 1993 – The eligibility for sales-tax
exemption cannot be withdrawn [General Sales Tax (GST), Art. 39(b), 39(c)]
K.M. Refineries and Infraspace Pvt. Ltd.
vs. State of Maharashtra (Bom.) (HC), www.itatonline.org
Under the New Package Scheme of Incentives,
1993, monetary and other incentives in the nature of tax subsidy or tax
exemption at the rate prescribed in the scheme and other benefits were given.
As per the eligibility certificate issued by the competent authority, the
certificate was valid for nine years. The Commissioner of Sales Tax prescribed
the effective date but while doing so, curtailed the validity period by about
three years and incentives given in the Incentive Scheme have been
substantially reduced by a new policy prescribing new tax structure of the
State. The assessee challenged the policy on the ground that the new policy
violates the principle of promissory estoppel.
Allowing the petition, the Court held that
once a promise has been solemnly given by the State with an intention that it
would be acted upon, and which has been indeed acted upon and liabilities
suffered by the promisee, the State cannot be permitted to backtrack on the
promise and change its position so as to cause loss to the promisee. The
eligibility for sales-tax exemption cannot be withdrawn under GST. (W.P. No.
2209 of 2018, dated 16th July, 2019).
3.
Notional partition – Daughters
entitled to claim a share in the ancestral property after notional partition
between coparceners [Hindu Succession Act, 1956, S. 6]
Gannu Ram and another vs. Dhanmat Bai and
Ors. AIR 2019 Chhattisgarh 148
The case was filed by Dhanmat Bai and Deni
Bai, who were the daughters of Ramai before the trial court where it was held
that the daughters were entitled to a share in the property in a case where the
father had expired prior to the amendment in section 6 of the Hindu Succession
Act. The daughters were born before 2005 and hence, the applicability of the
2005 amendment to them was in question. An appeal was preferred against such
order where the question raised was whether the daughter of a pre-deceased karta
/ coparcener is entitled to have equal share in the ancestral property.
The court held that the daughters were
entitled to a share in the property but only to the extent of the part of the
shares of their father after a notional partition with the appellant since the
appellant was the coparcener in the Hindu Joint Family property along with the
father of the daughters. For passing an effective decree of partition in favour
of the daughters, the trial court was first required to affect a notional
partition between Ramai and his son (coparcener / appellant) allotting them
half share each in the coparcenary property. Thereafter, a further partition is
required to be affected in respect of the half share of the father which would devolve
equally upon the daughters. The appeal was therefore partly allowed.
4.
Partnership property cannot be
a Hindu Joint Family property [Hindu Law]
Aarshiya Gulati and Ors. vs. Kuldeep Singh
Gulati and Ors. AIT 2019 (NOC) 577 (Del.)
While emphasising on the difference between
partnership and a Hindu Joint Family firm, the court referred to Mulla who in
his treatise Hindu Law (21st edition) has pointed out
the following points of difference between a partnership and a Hindu Joint
Family firm: ‘In a joint family business no member of the family can say that
he is the owner of one-half, one-third or one-fourth. The essence of joint
Hindu family property is unity of ownership and community of interest and the
shares of the members are not defined’.
The court also referred to the case of Nanchand
Gangaram Shetji vs. Mallappa Mahalingappa Sadalge & Ors. where it
was held that in a joint Hindu family business, no member of the family can say
that he is the owner of one-half, one-third or one-fourth. The essence of joint
Hindu family property is unity of ownership and community of interest and the
shares of the members are not defined. Similarly, the pattern of the accounts
of a joint Hindu family business maintained by the karta is different
from those of a partnership. In the case of the former the shares of the
individual members in the profits and losses are not worked out, while they
have to be worked out in the case of partnership accounts.
In view of the same, the court held that a
partnership property cannot be a Hindu Joint Family property.
5.
Tenancy – Prior consent of
creditor to be taken when tenancy created after mortgage of premises to
creditor – If consent not taken, tenant not entitled to temporary injunction
against dispossession by creditor bank. [Securitisation And Reconstruction Of
Financial Assets And Enforcement Of Security Interest Act, 2002, S. 13]
Chief Manager, Bank of Baroda, Dhanbad
branch vs. Amit and Ors. AIR 2019 Jharkhand 122
The brief facts of the case are that the
petitioner bank had sanctioned a loan by keeping the property in question
mortgaged by a collateral security and on having become a non-performing asset,
a notice u/s 13(2) of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002, was issued, thereafter
resorting to the provision of S. 13(4) of the Act. The respondent No. 1
(tenant) has entered into an agreement of tenancy prior to mortgaging of the
property by the owner. When a notice u/s 13(4) was served on the owner, the
respondent No. 1 filed a suit pleading therein that he is a monthly tenant and
has been paying rent regularly and on time but without any receipt. The bank
(creditor) appeared and filed show cause, disputed the claim of the respondent
No. 1 by stating that the owner is a director of a private limited company and
has got cash credit facility of Rs. 300 lakhs which was sanctioned and secured
by getting a mortgage of the property; when the loanee became irregular and
despite repeated requests and intimations did not pay the loan amount due to
which the loan amount became an NPA; this forced the petitioner bank (creditor)
to file a suit in the Debt Recovery Tribunal.
The tenant also
filed a separate petition for grant of temporary injunction restraining the petitioner
bank (creditor) from taking forceful possession of the tenanted premises.
It was observed by the court that no
borrower shall lease any of the secured assets referred to in the notice
without the prior written consent of the secured creditor and holding therein
that save and except the process of tenancy, there cannot be any eviction of
the tenant.
The court referred to the case of Kalsaria
where the lease has been created after the property had been mortgaged and
therefore, it has been held that before creating tenancy right before the date
of mortgage, consent is required to be taken from the creditors. It is in the
touchstone of this ratio and the definition of mortgage that the case in hand
has been examined by the court.
It was held that since it was nowhere on
record that before creating tenancy by virtue of agreement, prior consent of
the creditor has been taken this fact ought to have been appreciated by the
appellate court but having not done so, the appellate court has committed gross
error. 
