United States Federal Trade Commission vs NIl. Writ Petition 13264/2020 decided on 23 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349397/1/WP13264-20-23-11-2020.pdf

Relevant Paragraphs: 3(A) & (B) The basic law relating to accomplishment of “commissions issued by the foreign courts” is found in the provisions of Sec.78 r/w Rules 19 to 22 of Order XXVI of the Code of Civil Procedure, 1908. The aforementioned provisions of the Code which were originally enacted by Act 10 of 1932 have been re-framed in the 1976 amendment, for giving effect to the Directive Principles of State Policy enshrined in Article 51 of the  Constitution of India. The text of the aforesaid provisions of the Code are presumably enacted for giving effect inter alia to the intent of The Hague Convention to which both India and United States of America are parties; the Apex Court in SAFAI KARMACHARI ANDOLAN vs. UNION OF INDIA, (2014) 4 SCALE 165 has ruled that the International Covenants which have been ratified by India are binding to the extent they are not inconsistent with the provisions of the domestic law.

3(D). This Court does not see any repugnancy between the provisions of the said Convention and those of domestic law; conversely, they are complementary to each other; the Indian law read with the provisions of the said Convention empowers this Court  to  appoint  a Commission to collect evidence from witnesses on the formal request of a Foreign Court before whom a proceeding of civil nature is pending. The structure of the petition prima facie shows that: (a) the subject District Court wishes to obtain evidence of witnesses whose names are mentioned in the Letter of Request, (b) the proceedings pending before the said Court are of a civil nature, and (c) the witnesses mentioned in this Petition and in the Letter  of Request are within the jurisdictional limits & power of this Court.

Petition allowed.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Mahesh M.S. and others vs State of Karnataka. Criminal Petition 6901/2020 decided on 23 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349400/1/CRLP6901-20-23-11-2020.pdf

Held: Page 6. On close reading of Section 14A, it starts with a non-obstante clause and it says that an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order of a Special Court. If that interpretation is taken into consideration, then  under  such circumstances, wider meaning  has to be given to  the applicability of the Code of Criminal Procedure. As could be seen from the provisions of Sections 438 and  439 of Cr.P.C., the concurrent jurisdiction has been given to both High Court as well as to the Sessions Court for releasing the accused on anticipatory bail or regular bail. Though an order has been passed by the Special Court under Section 438 or Section 439 of Cr.P.C., the parties are not going to challenge the order which has been passed by the trial Court under the said Act. It is an independent right which has been given to the parties to approach this Court ignoring the order passed by the trial Court under Section 438 or Section 439 of Cr.P.C. No where in Code of Criminal Procedure it says that as against the order of the bail, an appeal lies and even as could be seen from the provisions of Section 378 of Cr.P.C., it is made clear that as and when an order of acquittal or the other orders are passed, then an appeal lies.

Page 8. Taking into consideration the provisions of Section 14A of the Act, it makes very clear that against any order passed by the Special Court, which has reached its finality, then under such circumstances, an appeal lies under Section 14A of the Act. But the bail application is not considered to be a final order, it is only an interim order/interlocutory order to release or not to release  the  accused on bail.  Even the said Section says ‘not being an interlocutory order’, that itself goes to show that the bail application is only   an interlocutory order and against such order, no appeal lies. No enactment can take away the power vested with this Court under Section 438 or 439 of Cr.P.C. unless it is specifically excluded.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

S.Basavaraj, Advocate, Daksha Legal.

Karnataka High Court has disposed more than 15,000 cases during Covid-19 period via Video Conferencing. Though physical appearance is allowed in few court halls, majority of the cases have been heard via video conferencing.

Covid related lock-down was imposed on 26 March 2020. Immediately thereafter, the Hon’ble Chief justice bench started hearing matters including PILs seeking directions to Government to effectively fight the situation. The Benches hearing matters view video link were increased gradually and as of now even the old matters like Regular First Appeals are being heard and disposed by the Hon’ble Judges.

Perhaps the biggest ever hearing on video conferencing was Securities Exchange Board of India vs Franklin Templeton Trustees Services Pvt Ltd & others decided on 24 October 2020. The batch of Writ Appeal/Petitions were heard where nine Senior Advocates including Solicitor General of India and Additional Solicitor General of India and more than 25 instructing counsel participated– all logged in from different parts of the country and one from abroad. 5000 pages of documentation and marathon hearing for 25 working days including two Court holidays, totally 61 hours of hearing made this case unique.

The website shows that on 24 November, the Principal bench at Bangalore there are 67 video conferences with several judges combination hearing almost all types of cases. In Dharward and Kalburgi benches, totally 13 Hon’ble Judges are hearing the matters via video conference.

As on today, the total strength of the Judges is 46. Though the pendency has increased considerably for want of judges earlier, the disposal of cases is likely to reach its optimum level from next year.

S.Basavaraj, Advocate, Daksha Legal. Member, Karnataka State Bar Council

Chetan Kumari L.M. vs The Manager, Oriental Insurance Co. Ltd. and another. Miscellaneous First Appeal 948/2015 decided on 11 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/330682/1/MFA948-15-11-03-2020.pdf

Relevant paragraphs: 5. The Tribunal, noting that the offending Maruti Car did not possess a fitness certificate as on the date of the accident, though it had a fitness certificate on the date of issuance of the insurance policy, held that the owner of the offending car i.e., insured has violated the terms of the policy and therefore, imposed the penalty on the owner of the car and discharged the Insurance Company from its liability.

11. Having perused the documents and the judgment, it is seen that as on the date of the issuance of the insurance policy, there was a fitness certificate and vehicle was being plied on the road. At the time of issuance of insurance policy, the insurer has not limited its liability till the date of validity of the fitness certificate. The insurer had issued a policy beyond the validity of the fitness certificate. Therefore, the insurer cannot now contend that the policy would be valid only until the date of the validity of the fitness certificate more so when the insurer has collected the premium for the entire period without any limitation. Needless to say that at the time of issuance of the insurance policy, the insurer has to verify the validity of the required document including the existence of a valid fitness certificate Therefore, I am of the considered opinion that when the insurer knowing fully well that the fitness certificate was valid only till 23.07.2013 having issued a policy to cover the period beyond the said date, insurer would be liable to make payment of compensation for the entire period during which the insurance policy is in operation subject to recovering the same from the insured on account of  violation  committed  by  the  insured  in  not renewing the fitness certificate as agreed by the insured in terms of the policy.

Appeal allowed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Reliance General Insurance Company Limited vs S. Ramya and others. Miscellaneous First Appeal 6789/2010 decided on 9 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348449/1/MFA6789-10-09-11-2020.pdf

Relevant paragraphs: 6. The Tribunal while considering  the  question  of liability, held that the JCB in question was a  construction vehicle and that construction equipment would not fall within the Class of non  transport  vehicle and that the driver of the JCB not only  possessed  a  driving licence to drive the light motor vehicle but also a light  motor  vehicle  cab.  Thus,  the  Tribunal  held  that the driver of the offending JCB was  authorized  to  drive the JCB in question, since it fell within the meaning of a ‘light transport vehicle’. The Tribunal therefore, fastened the liability to pay the compensation upon the insurer of the offending vehicle – JCB.

7. Learned counsel for the insurer in this  appeal contended that the JCB is not a vehicle which is classified anywhere in the Motor Vehicles Act as either a ‘transport vehicle’ or as a ‘construction vehicle’.

10. It is not in dispute that the Central  Government in  terms  of  its  notification  dated  19.06.1992 had clearly  delineated  ‘construction equipment vehicles’ as  ‘non transport vehicles’.  In  view of the fact that the driver of the  JCB  in  question  possessed a licence to drive a light motor vehicle and in view of what was held by the Apex Court in the case of Mukund Dewangan Vs. Oriental Ins.Co.Ltd.  2017(14)SCC663, the driver of the JCB was indeed authorized to drive a JCB in question and therefore, the Tribunal was right in fixing the liability to pay the compensation upon the insurer.

Compiled by S. Basavaraj & Sumana Chamarty, Daksha Legal.

The Karnataka High Court has issued a notification regarding webhosting of Court-hall-wise Video Conferencing Links with passcodes from 23 November 2020. This is subject to caution. The notice in this regard reads as follows:

The Links are shared on the Official website of the High Court and the same can be accessed by clicking the following link: https://karnatakajudiciary.kar.nic.in/chvclinks.php

-S. Basavaraj, Advocate, Daksha Legal.

Section 60 of the Transfer of Property Act, 1882, (extracted below) confers the right of redemption on the mortgagor. This is a statutory right. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage subsists. English law on this aspect is based on principles of equity. Indian law is based on justice, equity and good conscience.

Rule against clog on redemption simply connotes that anything which obstructs the right of the mortgagor to redeem his property is void. Such obstruction constitutes a clog on the right to redemption. The resultant principle i.e. ‘once a mortgage always a mortgage’ states that there can no covenant that modifies the character of the mortgage agreed between the parties that would stop the mortgagor to redeem his property back on payment of the principal and respective interests.

The right of redemption is a right which a mortgagor may seek to enforce, and not a ‘liability’ which he may be compelled to discharge.

It is a right of the mortgagor on redemption to get back the property. He is entitled to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is prevented from doing so or is prevented from redeeming the mortgage, such prevention is bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clog is inequitable.

The law does not tolerate clog on redemption. However, each case has to be judged and decided in its own perspective. For example long term for redemption by itself, is not a clog on equity of redemption.

Whether or not in a particular transaction there is clog on the equity of redemption, depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his relationship vis-à-vis him and the mortgagee, the economic and social conditions in a particular country at a particular point of time, custom, if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely, circumstances of the parties, the time, the situation, the clauses for redemption either for payment of interest or any other sum, the obligations of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage to manage as a matter of prudent management, these factors must be co-related to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption.

A mortgage is essentially and basically a conveyance in law or an assignment of property as a security for the payment of debt or for discharge of some other obligation for which it is given. The security must, therefore, be redeemable on the payment or discharge of such debt or obligation. Any provision to the contrary, notwithstanding, is a clog or fetter on the equity of redemption and, hence, bad and void. “Once a mortgage must always remain a mortgage”, and must not be transformed into a conveyance or deprivation of the right over the property.

A mortgage cannot be made altogether irredeemable or redemption made illusory. The law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and just, and unless there is anything to the contrary in the statute, court must take cognisance of that fact and act accordingly. In the context of fast changing circumstances and economic stability, long term for redemption makes a mortgage an illusory mortage, though not decisive. It should prima facie be an indication as to how clogs on equity of redemption should be judged. Pomal Kanji Govindji v. Vrajlal Karsandas Purohit, (1989) 1 SCC 458

Denial of title: During the subsistence of the mortgage it is not open to the mortgagee to dispute the title of the mortgagor. A mortgagee who has been put in possession pursuant to the mortgage, cannot deny the relationship. For once a mortgage it is always a mortgage. In other words the application of the Rule would arise only when the title is disputed or doubted. The application of the Rule estoppel would arise even when there is some scope or doubt regarding title and when there is some dispute is raised as regards the title of the mortgagor. Assuming the mortgagee has succeeded in raising some doubt regarding the title then it is all the more necessary to apply the rule. In such a case the Rule would come into play and the estoppel would operate. Subramanian v. Karuppayee Ammal, 1997 SCC OnLine Mad 431: (1998) 1 CTC 79, at page 84  :

Adverse possession: A mortgagee cannot claim title to the property, by way of adverse possession. S.K. Rajendran v. K. Sakthivel, 2011 SCC OnLine Mad 688 : (2011) 2 MWN (Civil) 460, at page 463  :

Decree: Unless and until final decree for redemption or foreclosure is passed, right to redeem is not lost.Thus, right of redemption can be extinguished either by Act of the parties or by (decree) of a Court. The ‘decree of the Court’ used in Section 60 of the Transfer of Property Act, 1882 has reference to the decree passed in the suit for redemption or foreclosure extinguishing the right of redemption. Right to redeem is not extinguished in case the final decree for redemption or fore-closure omits to make such declaration. Rosamma v. B.V. Ramachandrappa, 2000 SCC OnLine Kar 297: (2000) 7 Kant LJ 307: (2001) 3 ICC 715: 2000 AIHC 4782, at page 315:  

Limitation and consequences of creating excess interest by the mortgagee: A suit for redemption of mortgage could be filed within 60 years. But if the mortgagee had created an interest in excess of the right enjoyed by him, then to recover possession against the third party the suit had to be filed within 12 years of the transfer becoming known to the plaintiff. The rationale in cutting down the period of 60 years to 12 years is clear. The 60 years period is granted as a mortgagee always remains a mortgagee and thus the rights remain the same. However, when an interest in excess of the interest of the mortgagee is created then the third party is not claiming under the mortgagee. The position of such a person could not be worse than that of a rank trespasser who was in open and hostile possession. As the title of the rank trespasser would get perfected by adverse possession on expiry of 12 years so also the title of such transferee would get perfected after 12 years. The period of 12 years has to run from the date of knowledge by the plaintiff of such transfer. It is always for the party who lies the suit to show that the suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, the plaintiff would have to aver and then prove that the suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the plaintiff, who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due dilience then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. – M.K. Shekarappa v. Shivagangamma, 2007 SCC OnLine Kar 179: ILR 2007 KAR 2473: (2007) 5 Kant LJ 93: (2007) 4 AIR Kant R 330: (2007) 4 ICC 308: 2007 AIHC 2530, at page 2484:

Section 60. Right of mortgagor to redeem.—At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgagemoney, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c)at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:

Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court.

The right conferred by this section is called a right to redeem, and a suit to enforce it is called a suit for redemption.

Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed. the mortgagee shall be entitled to reasonable notice before payment or tender of such money.

Redemption of portion of mortgaged property.—Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgager.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Ismailbee vs Mehtab Saheb. Regular Second Appeal 868/2007 decided on 22 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349005/1/RSA868-07-22-10-2020.pdf

Relevant paragraphs: 26. ….the documents of which registration is required by Transfer of Property Act, 1882, shall be compulsorily required to be registered otherwise such documents shall not affect any immovable property. So, when once the transaction has been reduced to a form of document viz., “exchange deed”, then registration is compulsory. Such documents are not admissible as the evidence of any transaction affecting any immovable property comprised therein.

40. Marking the document in evidence is one thing and the proof, admissibility, evidentiary value of the document and acting upon it is other thing. Simply, because the document is marked as an exhibit without there being any objection by the opposite party, when it is produced in examination-in-chief that will not enure benefit to the party to claim declaration of title in a immovable property or extinguishing title of opposite party in immovable property, when admittedly the immovable property which were exchanged are worth more than Rs.100/- and requires registration.

42. The learned Single Judge of this Court in another decision reported in ILR 2003 KAR 3716 in the case of Krishna vs Sanjeev has considered the difference between “marking”, “admitting the documents” and “proof of documents during trial of the suit” as under:- “11. Marking of a document is a ministerial act whereas, admitting a document in evidence is a judicial act. Before a document is let in evidence, there should be a judicial determination of question wherever it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document was admissible or not.

44. Therefore, simply because Ex.P.1 is marked in the examination-in-chief without objection by opposite party, at the time of marking it, the said document cannot be used and acted upon as a evidence of title to grant declaration of title, as it being not sufficiently stamped and not registered. The said document also cannot be looked into for collateral purpose, in view of proviso to Section 49 of the Registration Act, 1908 and Section 118 of the Transfer of Property Act, 1882.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Santosh vs Harilal. Criminal Appeal 2784/2012 decided on 11 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349010/1/CRLA2784-12-11-11-2020.pdf

Relevant Paragraphs: 17. The facts of the present case are not on par with those in Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197, however, pivots on a different issue. The trial Court on consideration of the material omissions and contradictions in the version of the complainant regarding period of transaction as well as amount due not matching the cheque amount involved, acquitted the accused. As rightly submitted by learned counsel for the accused, the standard of proof for upsetting the presumption in favour of complainant is preponderance of probabilities as held in Vijay Vs. Lakshman & Ors. 2013 (3) SCC 86 . In order to do so, accused need not step into the witness box to prove that cheque issued was not in discharge of a legally recoverable debt or liability under Section 138 of the NI Act. He can very well establish the same by setting up a defence by preponderance of probabilities to upset the rebuttable presumption available to complainant as per Rangappa vs. MohanRangappa2010 (11) SCC 441, case when a probable defence is set up by accused, burden of explaining the same is on the complainant and standard of proof applicable for evaluating such explanation would be proved beyond reasonable doubt.

18. On over all consideration of the entire evidence on record, omissions and contradictions with regard to the period of transaction and amount involved coupled with failure to produce books of accounts by the complainant, who is a businessman  and the transaction being a part of his business, the Trial Court, in my opinion, has rightly come to the conclusion that the complainant has failed to prove that an offence under Section 138 of the N.I. Act was committed by the accused and therefore, acquittal of the accused for the offence is justified. Hence, there is no merit in the appeal. Accordingly, it is dismissed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Manish Jain vs Haryana State Pollution Control Board. Special Leave Petition (Crl) 5385/2020, decided on 20 November 2020. Judgment below.

Compiled by S. Basavaraj, Advocate, Daksha Legal.