Ajay Singh
Advocate

1. Cancellation of mutation entry by Tahsildar without prior notice to Interested party Not permissible: Misuse of authority – liable for action

The petitioner – Housing Society had challenged the order passed by the Sub-Divisional Officer, Nagpur granting permission to Tahsildar, Nagpur for review as well as order passed by the Tahsildar cancelling the mutation entry in respect of the land purchased by the petitioner Housing Society.

The Hon’ble Bombay High Court on perusal of section 258(1)(ii) of the Maharashtra Land Revenue Code observed that without service of notice on the parties interested, no order of review can be passed. In the instant case, there was no proof from the record to show that any notice was served on the petitioner Society before passing the impugned order.

The provisions of section 258(1)(iv) of the Maharashtra Land Revenue Code, 1966 is clear that the impugned orders could not have been passed as no private party or person made any application for review before the Tahsildar, Nagpur at any point of time. Admittedly, in the instant case the transfer of property was made by a private party in favour of the private party; i.e., petitioner-Society and, therefore, Tahsildar, Nagpur had absolutely no reason to initiate the proceedings for review and on the contrary the mandate of the said provisions shows that there is a specific bar in opening the proceedings for review, if the question of rights between private parties is involved. It cannot be said that the Tahsildar did not know this provision. Hence, the impugned orders were contrary to the aforesaid provisions of section 258(1)(iv) of the Code liable to be quashed.

The Court further observed that there was total misuse of authority by the respondent Tahsildar, Nagpur and it appears that he had undertaken the entire exercise for harassing the petitioner-Society and its members and for extraneous reasons. Harassment of the petitioner-Society and its members in the manner which had been done in the instant case could not be taken lightly and so also the conduct of the then Tahsildar, who had passed the impugned order. Therefore, exemplary costs was awarded to the petitioner recoverable personally from the then Tahsildar, who passed the impugned order. The Court also observed that the affidavit sworn by the then Tahsildar to the return that he had served notice on the petitioner Society to appear along with documents was clearly false and with a view to mislead this Court to believe that opportunity of hearing was given to the petitioner-Society before passing the impugned order. The affidavit being false, it was fit case where action should to be taken against, the Tahsildar for swearing false affidavit in this Court. The registry was directed to issue show cause notice to the Tahsildar for swearing false affidavit.

Samaj Bhushan Sahakari Gruha Nirman Sanstha Ltd., Nagpur vs. The State of Maharashtra & Ors. AIR 2007 (NOC) 2411 (Bom) – (2007) (5) AIR Bom R 362

2. Condonation of delay in filing application to set aside ex-parte decree

Application for condonation of delay should be considered with pragmatism with a justice oriented approach. The appellants received notice about passing of decree but took time to obtain consent of previous counsel on record and thereafter took steps in filing search memo. In facts of the case it was held that the appellants cannot be castigated as irresponsible litigants.

The respondents could be compensated for inconvenience caused by awarding cost. Delay condoned on payment of exemplary costs by appellant.

Arun Alexander Lakshman & Anr. vs. A.P. Vedavalli AIR 2007 (NOC) 2399 (Mad.)

3. Liability of guarantor – So long as the debt or liability of principal debtor is alive, guarantors liability also will survive. Sec. 139 Contract Act

There was an overdraft facility obtained by first defendant from plaintiff bank for his business and that was made at the instance of the request of first defendant on 19-5-1986. Second defendant (guarantor) guaranteed the repayment of the above said loan. Therefore, both joined together and executed a pronote on 19-5-1986 for a sum of Rs. 25,000/- in favour of appellant/plaintiff bank. There was also a hypothecation deed executed by both as security for the said loan. Thus, first defendant was the principal debtor and second defendant was only a guarantor.

A sum of Rs. 1,000/- was repaid by first defendant on 3-2-1987 and there was an acknowledgment by first defendant, the principal debtor. Construing as a starting period of limitation, the plaint was filed on 11-12-1990. There was also an acknowledgement of liability made by first defendant, which is dated 11-8-1988. The suit was decreed by construing the starting period of limitation as 11-8-1988 and the suit was filed within three years thereof. However, the suit was dismissed as against second defendant/guarantor because he never signed on the date of repayment of Rs. 1000/- by first defendant on 3-2-1987. Therefore, it was held by the trial court that as against second defendant, (the guarantor) the suit is time barred because it was not filed within three years from the date of pronote (19-5-1986).

The Hon’ble Madras High Court observed that the debt remains the same and the contract regarding the liability also remains the same. Because of the subsequent acknowledgement and payment by first defendant, the principal debtor, the contract remains the same and what was postponed was the bar of limitation u/ss. 19 and 20 of the Limitation Act. The statute of limitation only bars the remedy but does not extinguish the debt. Whenever procedural actions are barred, the rights themselves are not extinguished. Thus, the payment of first defendant and the acknowledgement made by him is established and so long as the debt or liability of the principal debtor is alive, then the guarantor liability also will survive. There need not be any separate acknowledgement from the guarantor. Therefore, there should be also a decree against the second defendant; i.e., the suit is not barred by limitation against the guarantor.

Syndicate Bank vs. K. Prakash & Anr. AIR 2007 Mad 307

4. Terms of loan agreement which are opposed to public policy cannot be permitted

The petitioner had executed loan agreement as per which she had availed finance from the third respondent financier with the condition that the same shall be repaid in equal monthly instalments. Blank cheques were also obtained by the financier as a further security for the transaction apart from the vehicle. Owing to financial stringency, the petitioner could not remit two instalments. A lawyer notice was received from the third respondent (financier) directing to clear the dues within seven days from the date of the notice. However, before the expiry of the date mentioned in the notice, four goondas came to him and snatched away the key of the vehicle and drove away the vehicle. The husband of the petitioner rushed to the police station and narrated the incident, but the police refused to register the case. Thereafter the petitioner filed a complaint with the Police and filed writ petition with the Hon’ble High Court. The third respondent, financier filed a counter statement detailing the terms of the agreement. It was asserted that as per the terms of the agreement, the respondent/financier was entitled to take possession of the vehicle in case of default of instalments. It was further stated that in terms of the agreement, the petitioner had agreed that she shall not prevent the Bank or its agents from taking possession of the vehicle and that Banks representative will have unrestricted right or entry to the premises where the vehicle is kept.

The Hon’ble Court observed that the above terms of loan agreement permitting forcible taking possession of the vehicle is opposed to public policy. The right to take possession by force overcoming the resistance if any and thereby igniting to a law and order situation etc. cannot be conferred by agreement by the party who is in need and who would be agreeable to sign on the dotted lines. Enforcing the terms of the agreement by availing the services of hired hoodlums is sought to be justified on the basis of the alleged legally valid terms of the agreement. The Court found that the above terms in the agreement that the financier, will have right to take physical possession of the vehicle can be enforced only through lawful means, failing which same would be equivalent to giving license to unleash violence which cannot be permitted in the State where law enforcement is entrusted with the State machinery. The contention that such type of agreements are an extension of the concept of pledge and hence the financier was entitled to as per the terms of the Indian Contract Act to enforce the terms of agreement to take physical possession was not supported by the provisions of the Constitution or the laws.

The Court held that the second respondent police was legally bound to register a case and investigate when a cognizable offence is reported to him. Hence, the second respondent, Sub Inspector of Police was directed to register the case on the complaint of the petitioner and investigate the matter and recover the vehicle and produce the same before the Court.

Shibi Francis vs. State of Kerala & Anr AIR 2007 Kerala 296

5. Playing of musical version of National Anthem instead of singing not disrepect to National Anthem : Art. 51A(a) Constitution of India

1. The respondent / Karnataka Rakshana Vakeelara Vedika lodged a private complaint u/s. 200 of Cr. P.C. against the petitioner alleging that on the inaugural function of the Infosys Globalk Tdg. Center at Mysore, attended by the former President of India, Dr. A.P.J. Abdul Khalam, as the Chief Guest, National Anthem was not sung by mouth. Further when the press reporters questioned the petitioner as to non singing of the National Anthem, for which the petitioner replied.
   
   “we had formed a five members team to sing Indian National Anthem, but as foreign dignitaries were present on the dais, with a view to avoid any delicacy or uncomfortableness to them, we have cancelled the same.”
   
   It was alleged that the above said statement of the petitioner amounted to disrespect to the National Anthem and therefore committed an offence u/s. 3 of the National Honour Act.

2. According to Article 51A(a), of the Constitution of India it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. National Flag, National Anthem and the Constitution of India are the symbols of sovereignty and the integrity of the Nation. Public acts of insults to these symbols must be prevented. The National Honour Act does not define what is National Anthem, when and how it should be sung. Therefore, the Orders relating to the National Anthem has been made. On conjoint reading of the National Honour Act and the Orders relating to the Indian National Anthem, and particularly the words viz. “sung or played” used in the Order makes it clear that playing of recorded musical version of the Indian National Anthem is not prohibited.

3. In view of the above the Hon’ble Court held that playing musical version of National Anthem instead of singing by mouth or press statement that to avoid delicacy or uncomfortableness to the Foreign dignitaries, who were present on the dais was not an offence punishable u/s. 3 of Prevention of Insult to National Honour Act, 1971.
   
   N.R. Narayana Murthy vs. Kannada Rakshana Vakeelara Vedika (Regd.) AIR 2007 Karnataka 174