Dr. Jayasheela Venu and another vs A.J.F. D’Souza and others. Regular First Appeal 1225/2011 decided on 15 January 2021.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358438/1/RFA1225-11-15-01-2021.pdf
Locus Classicus = An authoritative passage from a standard work that is often quoted as an illustration.
Appeal allowed.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Shivangouda vs Savita. Civil Petition 200006/2019 decided on 4 January 2021.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358444/1/CP200006-19-04-01-2021.pdf
Relevant portion: It would be relevant to note that the basic principle governing the granting of a petition under Section 24 CPC is that the petition is not to be dealt with in a light hearted manner and transfer of a case from one Court to another should not be granted readily for any fancied notion of the petitioning litigant because of the reason that such transfer of a case from one Judge to another in effect casts a doubt on the integrity, competence and reputation of the concerned Judge. Unless and until a sufficiently cogent ground is disclosed, transfer should not be allowed as a matter of course. For the purpose of such transfer, balance of convenience of the parties should be considered. It is well established that whenever Courts are called upon to consider the plea of transfer in matrimonial matters, the convenience of the wife is relevant consideration.
I can say only this much that “unless the balance is strongly in favour of petitioner, the respondent’s choice of forum should rarely be disturbed”. This is strong language. However, in matrimonial cases, it is readily understandable that a strong preference should be given to the forum and Court chosen by the wife.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Bangalore Turf Club Limited vs State Information Commissioner. Writ Petition 18449/2015 and connected matters decided on 13 January 2021. Justice P.B. Bajanthri.
Judgment Link: https://karnatakajudiciary.kar.nic.in/noticeBoard/WP18449.2015_16012021.pdf
Relevant paragraphs: 28. In this context, it is necessary to reproduce
extract of the KIC order dated 01.07.2013 (Sri Umapathi S
vs PIO & The Secretary, BTC, (Para.10 and 11 of
W.P.18449/2015) “Firstly, land measuring
32,17,995 Sq.Ft, where the Bangalore Race
Court is existing was given on lease to the
Bangalore Turf Club as per the lease agreement
dated 09-09-1923 and except the collection of
betting tax, entertainment tax and license fee,
no other revenue was collected in respect of the
land till GO No.FD 14 CRC67 dated 02-11-1968
was issued by the Government. In the aforesaid
GO, lease amount of Rs.50,000/- per annum was
fixed and later it was enhanced to Rs.1,00,000,
5,00,000, 30,00,000. However, on the request
of the Turf Club to treat it on par with the KSCA
or Golf Club as a sports activity, and modify the
decision fixing the lease amount at
Rs.30,000,00/- per year was considered by the
government and issued the GO dated 05-09-
2000 leasing from 01-01-1989 to 31-12-1999
and from 01-01-2000 to 31-12-2009 for lease
amount of Rs.10,000,00/- per year and thereafter to increase @ 10% per year. Considering (a) the location of the land in the
heart of the Bangalore Metropolitan City, (b)
extent of 32,17,995 Sq. Ft of land being
leased FREE for 45 years from 09-09-1923 to
02-11-1968, (c) and then at the rate of
Rs.50,000/- per year i.e., at a very meager
rate of Re.0.015/- sq ft, and (d) then again at
a very meager rate of Re.0.92 per sq. ft. per
year for over a period of 21 years from 01-01-
1989 to 31-12-2009 (see CAG report), it is
evident to note that the government has
indirectly financed the Club.”
29. In the aforementioned writ petition in
W.P.58192/2013, the order of KIC dated 16.09.2013
(UMAPATI S vs Secretary, Mysore Race Club
Limited., Mysore, relevant Paras. 9, 10 and 11 reads as
under: “9) In the Government Order
No.FD.21.CRC.94 Bangalore dated 30-11-1996 it is
stated that an area of 153 acres and 39 guntas of
land in SY. Nos.4 and 74 of Kurubarhalli, Mysore
Kasaba Hobli has been leased on lease amount of
Rs.80,000/- Per Annum for the first five years
period, thereafter, lease rent was Rs.1.6 lakhs per
annum from 5-2-1985 to 31-3-1986, from 1-4-
1986 to 31-3-1991 it was Rs.1.6 lakhs per annum,
from 1-4-1991 to 31-3-1996 lease amount was
Rs.2 lakhs per annum, from 1996 to 2001 it was
Rs. 2.5 lakhs per annum and from 1-4-2001 to 31-
3-2006 lease amount was Rs. 2.75 laksh per
annum. From 1-4-2006 lease was ot renewed till
5-3-2013 and on 5-3-13 same has been renewed
vide Government Order PWD.213.BMS.2007
Bangalore dated 5-3-13 and Annual Lease amount
is fixed at the rate of 2% of the Annual Gross
Income of Mysore Race Club Ltd.”
7.2.82 Scrutiny of records in four test-checked
divisions revealed that fixation of concessional
rent while leasing Government lands/buildings
for non-charitable commercial purposes in
respect of four premises resulted in foregoing of
revenue of Rs.630.94 crore for the period from
1 April 2003 to 31 March 2008 as mentioned
below:
30. Perusal of the aforesaid information, it is
evident that petitioners have availed concession of lease
amount. If one takes note of the market value as on the
date of various lease deeds, it is evident that larger
chunk of monetary gains has favoured the petitioners
from the State Largesse. In fact, State Government
should have resorted to distribute the State Largesse
while adhering to Article 14 of the Constitution, Courts
have time and again held that State Largesse is required
to be distributed while adhering to Article 14 of the
Constitution.
31….one has to come to the conclusion that
State Largesse had not been distributed in the manner
known to law. At the same time, each of the petitioners are
beneficiaries of State Largesse at a concessional rate as is evident from the records and findings given by the KIC in its
orders read with audit reports.
32. It is necessary to take note of what is meant by
‘Largesse’ – Government is simply funding its Largesses
towards private charities anyway, and politicizing the nonprofit world to an unprecedented degree in the process
Compiled by S. Basavaraj, Advocate, Daksha Legal. raj@dakshalegal.com
Bangalore Turf Club Limited vs State Information Commissioner. Writ Petition 18449/2015 and connected matters decided on 13 January 2021.
Judgment Link: https://karnatakajudiciary.kar.nic.in/noticeBoard/WP18449.2015_16012021.pdf
Relevant paragraphs: 2. In these petitions, contesting respondents –
complainants filed applications seeking certain information from
the respective petitioners. In not providing information sought
or in not taking any action on their application, contesting
respondents resorted to approach KIC and KIC passed order
against each of the petitioner.
30. …it is evident that petitioners have availed concession of lease
amount. If one takes note of the market value as on the
date of various lease deeds, it is evident that larger
chunk of monetary gains has favoured the petitioners
from the State Largesse. In fact, State Government
should have resorted to distribute the State Largesse
while adhering to Article 14 of the Constitution, Courts
have time and again held that State Largesse is required
to be distributed while adhering to Article 14 of the
Constitution
31..one has to come to the conclusion that
State Largesse had not been distributed in the manner
known to law. At the same time, each of the petitioners are
beneficiaries of State Largesse at a concessional rate as is evident from the records and findings given by the KIC in its
orders read with audit reports.
32. It is necessary to take note of what is meant by
‘Largesse’ – Government is simply funding its Largesses
towards private charities anyway, and politicizing the nonprofit world to an unprecedented degree in the process.
33. Further, the following would come under the
definition of ‘Largesse’ viz., synonyms of ‘Largessee’ are
bestowal, comp, donation, durative, faining, free bie, gift,
give away, handsel, lagniappe, present, presentation, alms,
benefaction, beneficence, benevolence, charity,
contribution, dole, hand out, oblation, offering,
philanthropy, tithe, grant, subsidy, remberance, tribute,
valentine, bonus, boon, windfall, courtesy, favour,
generosity, sacrifice, gratuity, propine, award, prize,
reward, liberalise. If these meanings are taken into
consideration for the purpose of State Largesse, one has to
draw inference that each of the petitioners are the beneficiary of substantially financed by way of indirectly
by funds provided by the Government.
36. No-doubt each of the petitioners were not
controlled by the Government of Karnataka in any manner
and at the same time Section 2(h) of Act, 2005 are to be
read independently from Section 2(h)(a) to (d)and (i) and
(ii). If part of (d) and (i) and (ii) ingredients are taken into
consideration, petitioners would fall under the definition of
‘public authority’, since, monetarily each of the petitioners
were beneficiary as their lease deeds revealed that they have been given substantial financial aid/concession.
47. In view of the principle laid down in the case of
THALAPPALAM’s supra and DAV supra, it is crystal clear
that Section 2(h) is required to be taken note of “and
includes any” (i) and (ii) are to be read independently.
Petitioners are all non-government organizations and who are all benefited from the State like indirectly funded by the
State Government, while availing at concessional rate in
respect of leased out land in favour of each of the
petitioner. Consequently, non-government organization
whoever benefited by directly or indirectly by funds
provided by the appropriate Government would fall under
‘‘public authority’’ under Section 2(h) of Act, 2005. Since
substantial financing can be both direct or indirect. To give
an example, if a land in a city is given free of cost or on
heavy discount to hospitals, educational institutions or such
other body like sports club, this in itself could be substantial
financing. The very establishment of such an institution, if
it is dependent on the largesse of the State in getting the
land at a cheap price, would mean that it is substantially
financed. Further, the value of the land will have to be
evaluated not only on the date of allotment but even on the
date when the question arises as to whether the said body
or NGO is substantially financed. In Writ Petition
No.58192/2013 the order of KIC dated 16.09.2013 at
para.10 reveals the following details of extent of land, building leased and the period of lease, lease rent to be
released, amount of lease rent released and revenue
foregone:
50. If these material information is taken into
consideration, one has to draw inference that petitioners
do fall under the definition of ‘public authority’ under Act.
Petitions dismissed.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
H.D.Devegowda vs M/s. Nandi Infrastructure Corridor Enterprise Limited. Writ Petition 725/2021 decided on 15 January 2021.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358443/1/WP725-21-15-01-2021.pdf
Relevant paragraphs: 2(a) The suit was filed by the respondent on 27.06.2012; it is founded on alleged defamation; plaintiff claims the damages in a sum of Rupees Ten Crore; Written Statement has been filed on 13.08.2012 resisting the suit; issues have been framed years ago; plaintiff’s evidence was completed on 06.02.2019; matter was posted to 26.02.2019 for the defence evidence; however, petitioner & his counsel remained absent and therefore, his evidence being taken as nil, case was posted for arguments.
2 (c) ….The opinion of the learned judge that the petitioner has been dragging on the suit proceeding is formed on the basis of what has been reflected in the Order Sheet; there is no reason to doubt the same; in matters like this, a Writ court cannot run a race of opinions with learned judges of the Courts below. When the suit was posted for arguments, about a year thereafter the subject applications are moved once again, for reopening the suit stage; no affidavit of the petitioner is filed in support thereof nor any reason is assigned for not filing one. The explanation offered by the advocate on record as above on behalf of the petitioner for not availing the umpteen opportunities earlier granted for leading defence evidence is hardly plausible, to say the least.
2(d) The suits founded on the tort of defamation need to be tried as expeditiously as possible; reputation, be it personal or occupational, for any person is sacrosanct; the Apex Court has ruled that, the right to reputation is a facet of Article 21 of the Constitution of India; the public memory being too short to be little, the claim for redressal for the hurt of reputation merits speedier consideration and ideally speaking, before the public memory fades; in defamation suits, award of damages in terms of money hardly constitutes a full recompense for the injury suffered; delayed justice makes it still worse; this is an added reason for the speedy trial of such suits; they cannot be allowed to be dragged on indefinitely; this inarticulate premise having animated the decision of the learned trial judge, impugned order is not vulnerable for challenge.
(e) The impugned order cannot be faltered for yet another reason too; learned judge of the Court below having exercised his discretion in accordance with rules of reason & justice, has made the impugned order the kind of which does not merit a deeper examination at the hands of a Writ Court exercising a limited supervisory jurisdiction constitutionally vested in it by Article 227, vide SADHANA LODH Vs. NATIONAL INSURANCE CO. LTD., & ANOTHER, (2003) 3 SCC 524.
In the above circumstances, this writ petition being devoid of merits, is liable to be rejected in limine and accordingly, it is.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
H.D.Devegowda vs M/s. Nandi Infrastructure Corridor Enterprise Limited. Writ Petition 725/2021 decided on 15 January 2021.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358443/1/WP725-21-15-01-2021.pdf
Relevant paragraphs: 2 (c) ….The opinion of the learned judge that the petitioner has been dragging on the suit proceeding is formed on the basis of what has been reflected in the Order Sheet; there is no reason to doubt the same; in matters like this, a Writ court cannot run a race of opinions with learned judges of the Courts below.
2(d) The suits founded on the tort of defamation need to be tried as expeditiously as possible; reputation, be it personal or occupational, for any person is sacrosanct; the Apex Court has ruled that, the right to reputation is a facet of Article 21 of the Constitution of India; the public memory being too short to be little, the claim for redressal for the hurt of reputation merits speedier consideration and ideally speaking, before the public memory fades; in defamation suits, award of damages in terms of money hardly constitutes a full recompense for the injury suffered; delayed justice makes it still worse; this is an added reason for the speedy trial of such suits; they cannot be allowed to be dragged on indefinitely; this inarticulate premise having animated the decision of the learned trial judge, impugned order is not vulnerable for challenge.
(e) The impugned order cannot be faltered for yet another reason too; learned judge of the Court below having exercised his discretion in accordance with rules of reason & justice, has made the impugned order the kind of which does not merit a deeper examination at the hands of a Writ Court exercising a limited supervisory jurisdiction constitutionally vested in it by Article 227, vide SADHANA LODH Vs. NATIONAL INSURANCE CO. LTD., & ANOTHER, (2003) 3 SCC 524.
In the above circumstances, this writ petition being devoid of merits, is liable to be rejected in limine and accordingly, it is.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Laxmi Dyechem v. State of Gujarat, (2012) 13 SCC 375. Judgment Link: https://main.sci.gov.in/jonew/judis/39772.pdf
Relevant paragraphs:
16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in Magma case (1999) 4 SCC 253 that the expression “amount of money … is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the “signatures do not match” or that the “image is not found”, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act:
16.1. This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance, this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied.
16.2. There may indeed be situations where a mismatch between the signatories on the cheque drawn by the drawer and the specimen available with the bank may result in dishonour of the cheque even when the drawer never intended to invite such a dishonour. We are also conscious of the fact that an authorised signatory may in the ordinary course of business be replaced by a new signatory ending the earlier mandate to the bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
K. Annaji Rao vs N. Krishna Raju Sekhar (2004) 2 AP LJ 63 (SN)
PDF of the Judgment
HELD: In Sridhar M.A. V. Metalloy N.Steel Corpn (2000 (1) SCC 397) the apex Court held that notice should not be deemed to have been served as a matter of course and deemed service is to be accepted in the facts of each case. In the instant case, the case of the respondent‑accused was that he was not served with statutory notice. But, the case of complainant was that he sent the statutory notice to the respondent by registered post and also through certificate of posting and the notice sent by register post was returned unserved with the endorsement ‘addressee left’. No evidence is placed before the Court that the notice sent by certificate of posting was, in fact, served on the respondent. In these circumstances, the respondent‑accused is entitled to benefit of doubt as to whether such service of notice, in fact had been effected on him. Therefore, I am of the opinion that unless the notice issued by the complainant is served on the respondent‑accused as required under Section 138(b) read with clause (c) thereof, the complaint is not maintainable and the accused cannot be convicted for the offence under Section 138 of the Act.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
{“Forum Shopping” is a term for the practice of unscrupulous trying to get their cases heard in the court which they perceive is most likely to provide a favorable judgment.}
The Karnataka High Court, Chief Justice Abhay Shreeniwas Oka and Justice Sachin Shankar Magadum, castigated a litigant who wanted his matter to be heard by a non-Karnataka Judge alleging that the Judge who is seized of the matter is being influenced by a former Chief Justice of India. The Court dismissed the petition with hefty fine of Rs. 1,00,000/-.
The observed that “The allegation is that most of the Judges show reveration to the undisputed intellect of the retired CJI…. We must remind the petitioner that Hon’ble Judges who are holding constitutional posts are human beings and they are bound to have respect for those who are really honourable and those who possess very high intellect. However, the Judges have taken oath under the Constitution, merely because they respect somebody does not mean that the Judges will be guided by the said person when they discharge their judicial and their constitutional duties.”
“The petitioner should not be under impression as far as this court is concerned the matter is over. We have noted the statement made before the single judge. We expect the petitioner to immediately go before the single judge and withdraw the said submissions. If the said submission is not withdrawn the option of initiating suo-motu proceeding always remains open.”
Compiled by S. Basavaraj, Advocate, Daksha Legal.
The Modified Standard Operating Procedure issued on 12 January 2021 for the District Judiciary with effect from 18 January 2021. Normal functioning is restored in all courts except (1) Bengaluru Urban (2) Bengaluru Rural (3) Chikkaballapura, (4) D.K. Mangaluru (5) Mysuru, (6) Shivamogga and (7) Tumakuru
PDF copy below
Daksha Legal