Specific Relief Act, 1963 – Section 28(1) – Rescission of Contract – Parameters – Sale Agreement annulled at execution stage.T.L. Rajagopal v. S.N. Shivakumar, 2014 SCC OnLine Kar 10072 : ILR 2014 KAR 4035 : (2014) 3 KCCR 2182 : (2014) 4 AIR Kant R 701 : (2014) 6 Kant LJ 423 : (2014) 4 ICC 275 : AIR 2015 (NOC 433) 160, at page 4052 :

HELD: Decree for specific performance being in the nature of a preliminary decree, the Court after passing of the said decree does not become functus officio. It retains the jurisdiction to conclude the further steps to be taken in the suit. The decree holder chooses to file an execution petition for getting the sale deed registered through the Court when the defendant who suffered the decree fails to obey the same. Though called ‘execution proceedings’, it is nothing but continuation of the original suit. In a suit for partition, after the preliminary decree is passed, to give effect to the preliminary decree, it is necessary to initiate final decree proceedings. But in a suit for specific performance it is called as ‘execution proceedings’. Thus when the Court that passed the decree for specific performance and the Court executing the said decree are one and the same, Section 28 of the Act gives equal opportunity to the parties to the suit. If the plaintiff/decree holder for any reason is unable to deposit the balance sale consideration, he is given a right to apply to the Court that passed the decree seeking extension of time to deposit the money and the Court is vested with the power to grant such extension. At the same time when the plaintiff commits default in making payment, a right is conferred upon the defendant/judgment debtor to approach the Court under Section 28 of the Act seeking rescission of the contract. Here again the Court has the discretion to rescind the contract notwithstanding the fact that the decree has attained finality.

KUMAR, J.:— This writ petition is preferred by the defendant/judgment debtor challenging the order passed by the Executing Court dismissing his application under Section 28(1) of the Specific Relief Act, 1963 (Hereinafter referred to as ‘The Act’ for short).

2. For the purpose of convenience, the parties are referred as per their original rank in the suit.

3. The plaintiff filed a suit for a decree of specific performance of the agreement of sale dated 16.08.1997 against the defendant alleging that the defendant had agreed to sell the schedule property in his favour for Rs. 4,60,000/-. Under the said agreement a sum of Rs. 1,75,000/- was paid as advance by him. The balance sale consideration of Rs. 2,85,000/- had to be paid at the time of registration of the sale deed. He was constrained to file the suit when the defendant failed to execute the sale deed in his favour as agreed. Though duly served with the suit summons, the defendant did not contest the suit and therefore, the decree came to be passed on 26.03.2003 directing the defendant to receive the balance sale consideration from the plaintiff and to execute the registered sale deed failing which he was reserved the liberty of taking steps to get the sale deed executed and registered through the Court Commissioner by depositing the balance sale consideration amount after the appeal time is over.

4. After the decree, the plaintiff issued a notice to the defendant expressing his readiness to pay the balance sale consideration and called upon the defendant to receive the consideration and execute the sale deed. The defendant did not oblige. Therefore, the plaintiff filed Ex. No. 34/2003 to execute the decree.

5. The record shows that the judgment debtor/defendant, to stall the execution proceedings not only filed an application under Order XXI Rule 97 of CPC but also got filed another application under the same provision through his daughter-in-law. However these applications came to be dismissed by the Executing Court. Thereafter, the defendant/judgment Debtor filed I.A. 7 under Section 28 of the Act on 08.03.2011 for rescission of the contract and dismissal of the execution petition.

6. It is the defendant/judgment debtor’s case that the suit came to be decreed exparte on 26.03.2003 and the time to file an appeal against the exparte decree expired on 25.04.2003. The decree is silent as to the outer limit within which the plaintiff should deposit the balance sale consideration from 25.04.2003 and therefore the exparte decree passed in favour of the plaintiff/decree holder is a nullity being contrary to the provisions of Section 28 of the Act. Further the decree holder has not deposited the balance amount till date and therefore, the alleged contract of sale agreement needs to be rescinded and cancelled in the interest of justice and equity. The decree is not executable. The plaintiff/decree holder filed objections to I.A. 7 and sought its dismissal contending that since the defendant/Judgment Debtor failed to comply with the decree, he initiated the execution proceedings well in time and the question of depositing the amount would arise only at the time of the execution of the registered sale deed.

7. The executing Court, after considering the rival contentions and taking note of the decisions relied on by the parties, has dismissed the I.A. holding that no time limit is prescribed in the decree for depositing the balance sale consideration, by the plaintiff. After passing of the decree, the decree holder has filed the execution case only after issuing notice to the judgment debtor stating that he is ready with the balance sale consideration. The defendant did not reply to the notice nor came forward to comply with the decree. Nor has the judgment debtor filed any appeal against the exparte judgment and decree. On the other hand, he got an application filed through his son seeking stay of the further proceedings in the execution petition and another application through one Parvathi under Order XXI Rule 97 of CPC to stall the execution of the proceedings. The Decree holder in fact has deposited the balance sale consideration in the Court on 14.07.2011. The judgment debtor has not come to the Court with clean hands and therefore he is not entitled to the discretionary relief.

8. The present writ petition is filed against the above order passed by the executing Court.

9. Learned Counsel for the defendant/judgment Debtor assailing the impugned order argued that, under the terms of the decree, the plaintiff was expected to deposit the balance sale consideration after expiration of the time prescribed for filing an appeal and therefore, the executing Court could not have held that no time is fixed for payment of the sale consideration. Secondly, it was argued that even after filing of the execution petition, balance sale consideration was not deposited and it was deposited only after the Judgment debtor filed I.A. 7 under Section 28 of the Act. The plaintiff/decree holder had not even filed an application seeking extension of time to deposit the balance sale consideration. The decree is dated 26.03.2003 and the balance sale consideration is deposited nearly 8 years thereafter i.e., on 14.07.2011. In view of these circumstances, it was urged that the agreement entered into by the parties is to be rescinded in terms of Section 28 of the Act and execution petition be dismissed. :

10. Per contra, Learned Counsel for the plaintiff/decree holder arguing in support of the impugned order submitted that, as no time is fixed in the decree, the decree holder, after passing of the decree, issued notice expressing his readiness and willingness to pay the balance sale consideration and obtain the sale deed. When this request was not acceded to, the decree holder was constrained to file the execution petition within five months, which conduct clearly demonstrates that, he was ready to perform his part of the contract. The execution petition was stalled by the judgment debtor by filing applications after applications through his daughter-in-law as well as the son for which the decree holder cannot be blamed. In fact, the decree holder has deposited the amount on 14.07.2011. I.A. 7 is not maintainable on the execution side and it ought to have been filed in the original suit itself as is clear from the provisions of Section 28 of the Act.

11. In the light of the aforesaid facts and rival contentions, the points that arise for my consideration in this writ petition are as under:—

1. Whether an application U/s. 28 of the Act is maintainable on the original side or in the execution proceedings initiated by the decree holder to execute the decree?

2. Whether the Judgment debtor has made out a case for rescission of the contract as provided U/s. 28 of the Act?

12. In order to answer the above questions, it is necessary to have a look at Section 28 of the Act which deals with rescission of contracts for sale or lease of immovable property in certain circumstances when already specific performance has been decreed by the Court. The said provision reads thus:—

“28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. —

(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.

(2) Where a contract is rescinded under subsection (1), the court:—

(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and

(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.

(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (I), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:

(a) the execution of a proper conveyance or lease by the vendor or lessor;

(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.

(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.

(5) The costs of any proceedings under this section shall be in the discretion of the court.”

13. Therefore, to invoke the above provision, the person who has obtained a decree for specific performance ought to have failed to pay the money or other sum which the Court has ordered him to pay, within the period allowed by the decree or such further period as the Court may allow. In such an event the person who has suffered the decree has a right to apply to the Court in the same suit in which the decree was passed to have the contract rescinded. On such an application being made, the Court may by order rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. Once such an order for rescission of contract is made, the Court shall direct the purchaser or the lessee, if, he has obtained the possession of the property under the contract, to restore such possession to the vendor or lessor and also may direct payment to the vendor or lessor to pay the rents and profits which have accrued in respect of the property from the date on which the possession was obtained by the purchaser or lessee until restoration of possession to any vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee or earnest money or deposit in connection with the contract.

14. The question whether an application under Section 28 of the Act is to be made in the same suit in which the decree is passed, has been the subject matter of interpretation by various High Courts in the country. In view of divergent opinion expressed by various High Courts, the Apex Court had an occasion to consider the same in the case of Ramankutty v. Avara1 where in para 6 it is held as under.“6. The question then emerges is whether it should be on the original side or execution side. Section indicates that it should be “in the same suit”. It would obviously mean in the suit itself and not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under Section 28(1) of the Act either for extension of time or for rescinding the contract as claimed for. Since the execution application has been filed in the same court in which the original suit was filed, namely, the court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of according to law. In this view, we feel that the Andhra Pradesh High Court is not correct. The High Court, therefore, is not right in dismissing the application treating of transferring it on the original side for dealing with it according to law.”

15. The Apex Court in the case of V.S. Plalanichamy Chettiar Firm v. C. Alagappan2 has reiterated above position of law in para 16 of the judgment:“16. In view of the decision of this Court in Ramankutty Guptan’s case (1994) AIR SCW 1533) when the trial Court and the executing Court are same, executing Court can entertain the application for extension of time though the application is to be treated as one filed in the main suit. On the same analogy, the vendor judgment—holder can also seek rescission of the contract of sale or take up this plea in defence to bar the execution of decree. One of the ground on which the trial Court dismissed the execution application was that the decree holder did not pay the balance of consideration as per the sale agreement and also did not pay within the time stipulated by the Court in the decree.”

16. Again in the case of Chanda (Dead) through LRs. v. Rattni3. at para 10 the Apex Court has held that:“10. The decree for specific performance has been described as a preliminary decree. The power under Section 28 of the Act is discretionary and the Court cannot ordinarily annul the decree once passed by it. Although the power to annul the decree exists yet Section 28 of the Act provides for complete relief to both the parties in terms of the decree. The Court does not cease to have the power to extend the time though the trial Court had earlier directed in the decree that payment of balance price to be made by certain date and on failure suit to stand dismissed. The power exercisable under this Section is discretionary.”

17. In the light of the ratio laid down in the aforementioned judgments, the law on the point can be said to be fairly settled: A decree for specific performance being in the nature of a preliminary decree, the Court after passing of the said decree does not become functus officio. It retains the jurisdiction to conclude the further steps to be taken in the suit. The decree holder chooses to file an execution petition for getting the sale deed registered through the Court when the defendant who suffered the decree fails to obey the same. Though called ‘execution proceedings’, it is nothing but continuation of the original suit. In a suit for partition, after the preliminary decree is passed, to give effect to the preliminary decree, it is necessary to initiate final decree proceedings. But in a suit for specific performance it is called as ‘execution proceedings’. Thus when the Court that passed the decree for specific performance and the Court executing the said decree are one and the same, Section 28 of the Act gives equal opportunity to the parties to the suit. If the plaintiff/decree holder for any reason is unable to deposit the balance sale consideration, he is given a right to apply to the Court that passed the decree seeking extension of time to deposit the money and the Court is vested with the power to grant such extension. At the same time when the plaintiff commits default in making payment, a right is conferred upon the defendant/judgment debtor to approach the Court under Section 28 of the Act seeking rescission of the contract. Here again the Court has the discretion to rescind the contract notwithstanding the fact that the decree has attained finality.

18. Specific performance being a discretionary relief, the Court has ample power to do justice between the parties, if anyone of them were to not act in terms of the decree. As such the contention that an application under Section 28 of the Act ought to be filed in the suit and not in execution proceedings cannot be accepted. I.A. 7 filed under Section 28 of the Act by the defendant/judgment debtor in the execution proceedings seeking rescission of contract therefore is perfectly maintainable and it is to be treated as an interlocutory application filed in the suit for specific performance itself.

19. Admittedly, the defendant/judgment debtor was duly served with the summons in the suit for Specific Performance. He appeared through an Advocate, sought for time but did not file the written statement or participate in the proceedings. Therefore, the suit of the plaintiff/decree holder came to be decreed exparte and the operative portion of judgment of the Trial Court reads as under:—“The suit is decreed with costs.The defendant is directed to receive balance sale consideration of Rs. 2,85,000-00 from the plaintiff and to execute and register the sale deed in favour of the plaintiff at his costs in pursuance of the sale agreement dated 16.08.1997 with respect to suit property.Failure on the part of the defendant to execute the sale deed the plaintiff is at liberty to take steps to get the sale deed executed and registered through the Court Commissioner by depositing the balance sale consideration amount after the appeal time is over.”(Underlining by me)

20. What the plaintiff has to do if the defendant were to not obey the decree passed by the Court is therefore, clearly spelt out in the judgment of the Trial Court. The plaintiff was given the liberty to take steps to get the sale deed executed and registered through the Court by depositing the balance sale consideration after the time prescribed for filing the appeal expired. In other words, the plaintiff had to deposit the balance sale consideration only after expiry of the appeal period.

21. The judgment and decree was delivered on 26.03.2003 and an appeal against the said decree ought to have been filed within 30 days, but the defendant admittedly has not chosen to file any appeal. After expiry of the appeal period, without depositing the balance consideration in Court, the plaintiff issued a legal notice calling upon the defendant to receive the balance sale consideration and execute the sale deed. The defendant did not reply. Then the execution proceedings came to be initiated. The balance consideration was not deposited either before or along with the execution petition.

22. The Judgment debtor/defendant entered appearance, in the execution case. Then he filed I.A. 7 under Section 28(1) of the Act seeking rescission of the contract on the ground of non-deposit of the amount in terms of the decree. Thereafter, the balance sale consideration came to be deposited on 14.07.2011 by the decree holder. The plaintiff/decree holder was expected to file an application under Section 28(1) of the Act seeking extension of time to deposit the amount by showing sufficient cause for the lapse on his part. Till date no such application is filed by the plaintiff/decree holder.

23. If the defendant was at fault, he was not willing to obey the decree, if the plaintiff had deposited the money after the expiry of the appeal period as stipulated in the decree or at least on the day he filed the execution petition, that would have been sufficient to demonstrate his bona fides. The balance sale consideration of Rs. 2,85,000/- had to be deposited on the date of the suit or the date of the decree or at least on the date of filing of the execution petition. But the plaintiff/decree holder appears to have woken up after seeing the averments in I.A. under Section 28 of the Act and made up his mind to deposit the money on 14.07.2011 which is nearly 8 years after the passing of the decree and 14 years from the date of the agreement.

24. The subject matter of the suit is an immovable property situated in Tiptur Town. The value of the immovable properties situated in towns and cities is multiplying every year. The plaintiff/decree holder who had the benefit of the decree also had the benefit of having Rs. 2,85,000/- with him for 14 long years and did not even seek extension of time to deposit the said amount. Today if the Court were to direct the defendant/judgment debtor to execute the sale deed for a consideration which he should have received 14 years ago, it would cause great hardship and irreparable injury, as the said amount would be of no value at all. In that view of the matter, the contract of sale requires to be rescinded and consequently, the decree for specific performance also requires to be annulled.

25. Where a contract is rescinded under sub-Section (1) of Section 28 of the Act, if the justice of the case so requires, the Court can as provided under Section 28 (2)(b) of the Act order for refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. Similarly Section 65 of the Contract Act, 1872 also casts an obligation on the person who has received an advantage under void agreement or contract that becomes void, to restore it or make compensation for it, to the person from whom he received it. Therefore the defendant/judgment debtor shall refund the advantage/earnest money received from the plaintiff/decree holder under the agreement i.e., a sum for Rs. 1,75,000/- together with interest @ 18% p.a. from the date of receipt of amount till the date of payment, if he wants the rescission of the contract.

26. In the result I pass the following:

ORDERThe writ petition is allowed. The impugned order is hereby set-aside and I.A. filed under Section 28 of the Specific Relief Act is allowed.The agreement of sale dated 16.08.1997 is rescinded and the decree for specific performance dated 26.03.2003 is annulled subject to the condition that the defendant/judgment debtor shall refund earnest money of Rs. 1,75,000/- received under the agreement to the plaintiff/decree holder with interest @ 18% p.a. from the date of receipt of the said amount till the date of payment, within three months from this day.In the event of the defendant/judgment debtor failing to pay the amount to the plaintiff/decree holder or deposit the same in the Court within 3 months from the date of receipt of this order, the order of this Court rescinding the agreement stands vacated and order of the executing Court on I.A. 7 stands restored.———

1. (1994) 2 SCC 642 : AIR 1994 SC 16992. (1999) 4 SCC 702 : AIR 1999 SC 9183. (2007) 14 SCC 26 : AIR 2007 SC 1514

Siddaraju vs State of Karnataka and others. Writ Petition 11455/2020 decided on 1 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350672/1/WP11455-20-01-12-2020.pdf

Relevant paragraphs: The petitioner was appointed as Director of Karnataka Power Transmission Corporation Limited (KPTCL), on 6:12:2019. The petitioner is aggrieved by the order dated 7:10:2020 passed by the respondent-State Government, whereby respondent No.4 was appointed as Director of KPTCL and the petitioner was appointed as Managing Director of Power Company of Karnataka Limited. Subsequently, the State Government  issued  one more notification dated 16.10.2020 appointing the petitioner as Managing Director, Mysore Electrical Industries Limited.

Observations: Paragraph 12. Before parting with this writ petition, this Court deems it necessary to remind the State Government and the top Executives that appointments and transfers are required to be made in “public interest”. Public interest means the interest of the State and the citizens. If the same is followed in letter and spirit, the powers that be would not have to face inconvenient questions and such actions would considerably reduce unwanted litigations. It is sad that though this Court and the Hon’ble Apex Court  have  time and again reminded the powers that be of their constitutional obligation to act in accordance with law, both in letter and spirit, orders of appointment and transfers are made with utter disregard  to  the reminders and have become source of genuinely avoidable litigations. It would be apt to quote the prophetic words of Dr.B.R.Ambedkar, “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good,  it will prove to be good.”

Writ petition stands dismissed. No order as to costs

Compiled by S. Basavaraj, Daksha Legal.

Siddaraju vs State of Karnataka and others. Writ Petition 11455/2020 decided on 1 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350672/1/WP11455-20-01-12-2020.pdf

Relevant paragraphs: The petitioner was appointed as Director of Karnataka Power Transmission Corporation Limited (KPTCL), on 6:12:2019. The petitioner is aggrieved by the order dated 7:10:2020 passed by the respondent-State Government, whereby respondent No.4 was appointed as Director of KPTCL and the petitioner was appointed as Managing Director of Power Company of Karnataka Limited. Subsequently, the State Government  issued  one more notification dated 16.10.2020 appointing the petitioner as Managing Director, Mysore Electrical Industries Limited which he accepted.

8. &10 In the opinion of this Court, the subsequent development in the respondent State Government appointing the petitioner as Director of PCKL by order dated 07.10.2020 and thereafter one more notification dated 16.10.2020 issued by the State Government appointing the petitioner as Managing Director, MEI Ltd., consequent to which the petitioner taking charge  as Managing Director of MEI Ltd., on 16.10.2020, without demure, assumes significance. Normally, when transfer orders are challenged before a court of law or tribunal and during the pendency of such proceedings if another order of transfer is passed and the transferee assumes charge by virtue of the subsequent order of transfer, without protest and without raising  a  challenge to the subsequent orders, the pending proceedings are disposed of  as having become infructuous. The obvious reason behind the disposal of the proceedings as having become infructuous  is  that no useful purpose would be served in proceeding to consider the validity of the previous order of transfer, unless the subsequent order of transfer is also questioned by amending the memorandum of petition, raising grounds of challenge and seeking a specific prayer to set aside the subsequent order of transfer is made, a decision on the previous order of transfer would be rendered useless. It is not a matter of right that by quashing the previous order of transfer that all subsequent orders would axiomatically fall to the ground.…..Therefore, even if this Court were to quash the impugned order, it would not be sufficient to put the petition back in place as Director, KPTCL. The two orders are independent orders issued by the State Government invoking the doctrine of pleasure.

Observations: 12. Before parting with this writ petition, this Court deems it necessary to remind the State Government and the top Executives that appointments and transfers are required to be made in “public interest”. Public interest means the interest of the State and the citizens. If the same is followed in letter and spirit, the powers that be would not have to face inconvenient questions and such actions would considerably reduce unwanted litigations. It is sad that though this Court and the Hon’ble Apex Court  have  time and again reminded the powers that be of their constitutional obligation to act in accordance with law, both in letter and spirit, orders of appointment and transfers are made with utter disregard  to  the reminders and have become source of genuinely avoidable litigations. It would be apt to quote the prophetic words of Dr.B.R.Ambedkar, “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good,  it will prove to be good.”

Writ petition stands dismissed. No order as to costs

Compiled by S. Basavaraj, Daksha Legal.

The State of Jharkhand and Ors vs Brahmputra Metallics Ltd., Ranchi and Anr. Civil Appeal 3860-3862/2020 decided on 1 December 2020.

Judgment Link: https://main.sci.gov.in/supremecourt/2020/17227/17227_2020_33_1501_24877_Judgement_01-Dec-2020.pdf

Relevant paragraphs: H.3 Promissory estoppel – origins and evolution

27. In order to analyze the contentions relating to the doctrine of promissory estoppel in the present case, it is necessary to discuss the origin of the doctrine and the evolution of its application. The common law recognizes various kinds of equitable estoppel, one of which is promissory estoppel. In Crabb vs Arun DC, [1976] 1 Ch 179 (Court of Appeal), Lord Denning, speaking for the Court of Appeal, traced the genesis of promissory estoppel in equity, and observed: “The basis of this proprietary estoppel – as indeed of promissory estoppel – is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. The early cases did not speak of it as “estoppel”. They spoke of it as “raising an equity” If I may expand that, Lord Cairns said: “It is the first principle upon which all Courts of Equity proceed”, that it will prevent a person from insisting on his legal rights – whether arising under a contract or on his title deed, or by statute – when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties.”

28. The requirements of the doctrine of promissory estoppel have also been formulated in Chitty on Contracts¹⁴ (“Chitty”):

“4.086. For the equitable doctrine to operate there must be a legal relationship giving rise to rights and duties between the parties; a promise or a representation by one party that he will not enforce against the other his strict legal rights arising out of that relationship; an intention on the part of the former party that the latter will rely on the representation; and such reliance by the latter party. Even if these requirements are satisfied, the operation of the doctrine may be excluded if it is, nevertheless, not “inequitable” for the first party to go back on his promise. The doctrine most commonly applies to promises not to enforce contractual rights, but it also extends to certain other relationships. 4.088…..The doctrine can also apply where the relationship giving rise to rights and correlative duties is non-contractual: e.g. to prevent the enforcement of a liability imposed by statute on a company director for signing a bill of exchange on which the company’s name is not correctly given; or to prevent a man from ejecting a woman, with whom he has been cohabitating, from the family home.”

Chitty (supra) clarifies that the doctrine of promissory estoppel may be enforced even in the absence of a legal relationship. However, it is argued that this would be an incorrect application of the doctrine since it gives rise to new rights between the parties, when the intent of the doctrine is to restrict the enforcement of previously existing rights:

“4.089. It has, indeed, been suggested that the doctrine can apply where, before the making of the promise or representation, there is no legal relationship giving rise to rights and duties between the parties, or where there is only a putative contract between them: e.g. where the promisee is induced to believe that a contract into which he had undoubtedly entered was between him and the promisor, when in fact it was between the promisee and another person. But it is submitted that these suggestions mistake the nature of the doctrine, which is to restrict the enforcement by the promisor of previously existing rights against the promisee. Such rights can arise only out of a legal relationship existing between these parties before the making of the promise or representation. To apply doctrine where there was no such relationship would contravene the rule (to be discussed in para.4-099 below) that the doctrine creates no new rights.”

29. Generally speaking under English Law, judicial decisions have in the past postulated that the doctrine of promissory estoppel cannot be used as a ‘sword’, to give rise to a cause of action for the enforcement of a promise lacking any consideration. Its use in those decisions has been limited as a ‘shield’, where the promisor is estopped from claiming enforcement of its strict legal rights, when a representation by words or conduct has been made to suspend such rights. In Combe vs Combe¹⁵ (“Combe”), the Court of Appeal held that consideration is an essential element of the cause of action: “It [promissory estoppel] may be part of a cause of action, but not a cause of action itself. The principle [promissory estoppel] never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side-wind.”

30. Even within English Law, the application of the rule laid down in Combe (supra) has been noticed to be inconsistent¹⁶. The scope of the rule has also been doubted on the ground that it has been widely framed¹⁷. Hence, in the absence of a definitive pronouncement by the House of Lords holding that promissory estoppel can be a cause of action, a difficulty was expressed in stating with certainty that English Law has evolved from the traditional approach of treating promissory estoppel as a ‘shield’ instead of a ‘sword’¹⁸. By contrast, the law in the United States¹⁹ and Australia²⁰ is less restrictive in this regard.

31. India, as we shall explore shortly, adopted a more expansive statement of the doctrine. Comparative law enables countries which apply a doctrine from across international frontiers to have the benefit of hindsight.

This Court has given an expansive interpretation to the doctrine of promissory estoppel in order to remedy the injustice being done to a party who has relied on a promise. In Motilal Padampat (supra), this Court viewed promissory estoppel as a principle in equity, which was not hampered by the doctrine of consideration as was the case under English Law. This Court, speaking through Justice P N Bhagwati (as he was then), held thus: “12….having regard to the general opprobrium to which the doctrine of consideration has been subjected by eminent jurists, we need not be unduly anxious to project this doctrine against assault or erosion nor allow it to dwarf or stultify the full development of the equity of promissory estoppel or inhibit or curtail its operational efficacy as a justice device for preventing injustice…We do not see any valid reason why promissory estoppel should not be allowed to found a cause of action where, in order to satisfy the equity, it is necessary to do so.”

H.2 From estoppel to expectations

Under English Law, the doctrine of promissory estoppel has developed parallel to the doctrine of legitimate expectations. The doctrine of legitimate expectations is founded on the principles of fairness in government dealings. It comes into play if a public body leads an individual to believe that they will be a recipient of a substantive benefit. The doctrine of substantive legitimate expectation has been explained in R vs North and East Devon Health Authority, ex p Coughlan²¹ in the following terms:

“55…. But what was their legitimate expectation?” Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.

56….Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

33. Under English Law, the doctrine of legitimate expectation initially developed in the context of public law as an analogy to the doctrine of promissory estoppel found in private law. However, since then, English Law has distinguished between the doctrines of promissory estoppel and legitimate expectation as distinct remedies under private law and public law, respectively. De Smith’s Judicial Review²² notes the contrast between the public law approach of the doctrine of legitimate expectation and the private law approach of the doctrine of promissory estoppel :

“[d]espite dicta to the contrary [Rootkin v Kent CC, (1981) 1 WLR 1186 (CA); R v Jockey Club Ex p RAM Racecourses Ltd, [1993] AC 380 (HL); R v IRC Ex p Camacq Corp, (1990) 1 WLR 191 (CA)], it is not normally necessary for a person to have changed his position or to have acted to his detriment in order to qualify as the holder of a legitimate expectation [R v Ministry for Agriculture, Fisheries and Foods Ex p Hamble Fisheries (Offshore) Ltd, (1995) 2 All ER 714 (QB)]. . . Private law analogies from the field of estoppel are, we have seen, of limited relevance where a public law principle requires public officials to honour their undertakings and respect legal certainty, irrespective of whether the loss has been incurred by the individual concerned [Simon Atrill, ‘The End of Estoppel in Public Law?’ (2003) 62 Cambridge Law Journal 3].”

34. Another difference between the doctrines of promissory estoppel and legitimate expectation under English Law is that the latter can constitute a cause of action²³. The scope of the doctrine of legitimate expectation is wider than promissory estoppel because it not only takes into consideration a promise made by a public body but also official practice, as well. Further, under the doctrine of promissory estoppel, there may be a requirement to show a detriment suffered by a party due to the reliance placed on the promise. Although typically it is sufficient to show that the promisee has altered its position by placing reliance on the promise, the fact that no prejudice has been caused to the promisee may be relevant to hold that it would not be “inequitable” for the promisor to go back on their promise.²⁴ However, no such requirement is present under the doctrine of legitimate expectation. In Regina (Bibi) vs Newham London Borough Council²⁵, the Court of Appeal held:

“55 The present case is one of reliance without concrete detriment. We use this phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged disappointment which has ensued; and potential detriment in the deflection of the possibility, for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they might not found an estoppel or actionable misrepresentation in private law, because they go to fairness and through fairness to possible abuse of power.  To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them.”

35. Consequently, while the basis of the doctrine of promissory estoppel in private law is a promise made between two parties, the basis of the doctrine of legitimate expectation in public law is premised on the principles of fairness and non-arbitrariness surrounding the conduct of public authorities. This is not to suggest that the doctrine of promissory estoppel has no application in circumstances when a State entity has entered into a private contract with another private party. Rather, in English law, it is inapplicable in circumstances when the State has made representation to a private party, in furtherance of its public functions²⁶.

H.5  Indian Law and the doctrine of legitimate expectations.

36.Under Indian Law, there is often a conflation between the doctrines of promissory estoppel and legitimate expectation. This has been described in Jain and Jain’s well known treatise, Principles of Administrative Law²⁷: “At times, the expressions ‘legitimate expectation’ and ‘promissory estoppel’ are used interchangeably, but that is  not a correct usage because ‘legitimate expectation’ is a concept much broader in scope than ‘promissory estoppel’.A reading of the relevant Indian cases, however, exhibit some confusion of ideas. It seems that the judicial thinking has not as yet crystallised as regards the nature and scope of the doctrine. At times, it has been referred to as merely a procedural doctrine; at times, it has been treated interchangeably as promissory estoppel. However both these ideas are incorrect. As stated above, legitimate expectation is a substantive doctrine as well and has much broader scope than promissory estoppel.

In Punjab Communications Ltd. v. Union of India, the Supreme Court has observed in relation to the doctrine of legitimate expectation:

“the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way Reliance must have been placed on the said representation and the representee must have thereby suffered detriment.”

It is suggested that this formulation of the doctrine of legitimate expectation is not correct as it makes “legitimate expectation” practically synonymous with promissory estoppel. Legitimate expectation may arise from conduct of the authority; a promise is not always necessary for the purpose.”

37. While this doctrinal confusion has the unfortunate consequence of making the law unclear, citizens have been the victims. Representations by public authorities need to be held to scrupulous standards, since citizens continue to  live their lives based on the trust they repose in the State. In the commercial world also, certainty and consistency are essential to planning the affairs of business. When public authorities fail to adhere to their representations without providing an adequate reason to the citizens for this failure, it violates the trust reposed by citizens in the State. The generation of a business friendly climate for investment and trade is conditioned by the faith which can be reposed in government to fulfil the expectations which it generates. Professors Jain and Deshpande characterize the consequences of this doctrinal confusion in the following terms:

“Thus, in India, the characterization of legitimate expectations is on a weaker footing, than in jurisdictions like UK where the courts are now willing to recognize the capacity of public law to absorb the moral values underlying the notion of estoppel in the light of the evolution of doctrines like LE [Legitimate Expectations] and abuse of power. If the Supreme Court of India has shown its creativity in transforming the notion of promissory estoppel from the limitations of private law, then it does not stand to reason as to why it should also not articulate and evolve the doctrine of LE for judicial review of resilement of administrative authorities from policies and long- standing practices. If such a notion of LE is adopted, then not only would the Court be able to do away with the artificial hierarchy between promissory estoppel and legitimate expectation, but, it would also be able to hold the administrative authorities to account on the footing of public law outside the zone of promises on a stronger and principled anvil. Presently, in the absence of a like doctrine to that of promissory estoppel outside the promissory zone, the administrative law adjudication of resilement of policies stands on a shaky public law foundation.”

38. We shall therefore attempt to provide a cogent basis for the doctrine of legitimate expectation, which is not merely grounded on analogy with the doctrine of promissory estoppel. The need for this doctrine to have an independent existence was articulated by Justice Frankfurter of the United State Supreme Court in Vitarelli vs Seton²⁸

‘“An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish  with the sword.”

39. However, before we do this, it is important to clarify the understanding of the doctrine of legitimate expectation in previous judgements of this Court. In National Buildings Construction Corporation vs S. Raghunathan²⁹ (“National Buildings Construction Corpn.”), a three Judge bench of this Court, speaking through Justice S. Saghir Ahmad, held that:

“18. The doctrine of “legitimate expectation” has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of “legitimate expectation” was evolved which has today become a source of substantive as well as procedural rights. But claims based on “legitimate expectation” have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel.”.

However, it is important to note that this observation was made by this Court while discussing the ambit of the doctrine of legitimate expectation under English Law, as it stood then. As we have discussed earlier, there was a substantial conflation or overlap between the doctrines of legitimate expectation and promissory estoppel even under English Law since the former was often invoked as being analogous to the latter. However, since then and since the judgment of this Court in National Buildings Construction Corporation (supra), the English Law in relation to the doctrine of legitimate expectation has evolved. More specifically, it has actively tried to separate the two doctrines and to situate the doctrine of legitimate expectations on a broader footing. In Regina (Reprotech (Pebsham) Ltd) vs East Sussex County Council³⁰, the House of Lords has held thus: held thus:

“33   In any case, I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out in Newbury District Council v Secretary of State for the Environment [1981] AC 578 , 616, estoppels bind individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed. But these concepts of private law should not be extended into “the public law of planning control, which binds everyone”. (See also Dyson J in R v Leicester City Council, Ex p Powergen UK Ltd [2000] JPL 629 , 637.)

34.There is of course an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power… But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. Public law can also  take into account the hierarchy of individual rights which exist under the Human Rights Act 1998, so that, for example, the individual’s right to a home is accorded a high degree of protection (see Coughlan’s case, at pp 254–255) while ordinary property rights are in general far more limited by considerations of public interest: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.

35. It is true that in early cases such as the Wells case [1967] 1 WLR 1000 and Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222 , Lord Denning MR used the language of estoppel in relation to planning law. At that time the public law concepts of abuse of power and legitimate expectation were very undeveloped and no doubt the analogy of estoppel seemed useful…..It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and  the time has come for it to stand upon its own two feet.”

40. In a concurring opinion in Monnet Ispat and Energy Ltd. vs Union of India³¹ (“Monnet Ispat”), Justice H L Gokhale highlighted the different considerations that underlie the doctrines of promissory estoppel and legitimate expectation. The learned judge held that for the application of the doctrine of promissory estoppel, there  has to be  a  promise, based  on  which  the promisee has acted to its prejudice. In contrast, while applying the doctrine of legitimate expectation, the primary considerations are reasonableness and fairness of the State action. He observed thus

“Promissory Estoppel and Legitimate Expectations”

289. As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis the party concerned must have acted to its prejudice. In the instant case it was only a proposal, and it was very much made clear that it was to be approved by the Central Government, prior whereto it could not be construed as containing a promise. Besides, equity cannot be used against a statutory provision or notification.

290…..In any case, in the absence of any promise, the Appellants including Aadhunik cannot claim promissory estoppel in the teeth of the notifications issued under the relevant statutory powers. Alternatively, the Appellants are trying to make a case under the doctrine of legitimate expectations. The basis of this doctrine is in reasonableness and fairness. However, it can also not be invoked where the decision of the public authority is founded in a provision of law, and is in consonance with public interest.”

In Union of India vs Lt. Col. P.K. Choudhary³², speaking through Chief Justice T S Thakur, the Court discussed the decision in Monnet Ispat (supra) and noted its reliance on the judgment in Attorney General for New South Wales vs. Quinn³³. It then observed:

“This Court went on to hold that if denial of legitimate expectation in a given case amounts to denial of a right that is guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or in violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 of the Constitution but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.”

Thus, the Court held that the doctrine of legitimate expectation cannot be claimed as a right in itself, but can be used only when the denial of a legitimate expectation leads to the violation of Article 14 of the Constitution.

42. As regards the relationship between Article 14 and the doctrine of legitimate expectation, a three judge Bench in Food Corporation of India vs Kamdhenu Cattle Feed Industries³⁴, speaking through Justice J S Verma, held thus:

“7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fairplay in action’. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated  fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision- making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.

8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.”

More recently, in NOIDA Entrepreneurs Assn. vs NOIDA³⁵, a two-judge bench of this Court, speaking through Justice B. S. Chauhan, elaborated on this relationship in the following terms:

“39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a “democratic form of Government demands equality and absence of arbitrariness and discrimination”. The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.

41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. “Public authorities cannot play fast and loose with the powers vested in them.” A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, “in good faith” means “for legitimate reasons”. It must be exercised bona fide for the purpose and for none other…]”

As such, we can see that the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 finds concrete expression.

Compiled by S. Basavaraj, Advocate, Daksha Legal, Bengaluru.

¹⁶ Wyvern Development, Re, [1974] 1 W.L.R. 1097 cited in Susan M. Morgan, “A Comparative Analysis of the Doctrine of Promissory Estoppel in Australia, Great Britain and the United States”, (1985) 15 Melbourne University Law Review 134, 139-141.

¹⁷ In Tungsten Electric Co Ltd. vs Tool Metal Manufacturing Co. Ltd., [1955] 1 W.L.R. 761, Lord Simonds states, “I do not wish to lend the authority of this House to the statement of the principle which is to be found in Combe v. Combe and may well be far too widely stated”.

¹⁸ In Baird Textiles Holdings Ltd. vs Marks and Spencer Plc., [2002] 1 All ER (Comm) 737, Court of Appeal stated that “there is no real prospect of the claim [estoppel] succeeding unless and until law is developed, or corrected, by the House of Lords”.

¹⁹ American Law Institute, Restatement of the Law (2d), Contracts (1981), para 90.

²³ Rebecca Williams, “The Multiple Doctrines of Legitimate Expectations”, (2016) 132(Oct) Law Quarterly Review 639, 645.

²⁴ Supra note 19 at para 4-095.

²⁶ Nicholas Bamforth, “Legitimate Expectation and Estoppel” (1998) 3 Jud Rev 196.

²⁷ M.P. Jain and S.N. Jain, Principles of Administrative Law (7^th edn., EBC 2013).

²⁸ 359 US 535 (1959); the principle espoused in this judgment has been followed by this Court in Amarjit Singh Ahluwalia (Dr) vs State of Punjab, (1975) 3 SCC 503, Sukhdev Singh vs Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421 (concurring opinion of Justice K K Mathew) and Ramana Dayaram Shetty vs International Airport Authority of India, (1979) 3 SCC 489.

²⁹ (1998) 7 SCC 66.

³⁰ [2003] 1 WLR 348.

32 (2016) 4 SCC 236.

35. (2011) 6 SCC 508.

Suresh H.L vs The Management Sarvodaya Vidhyavardhaka and another Writ Petition 46435/2017 (S-Dis) decided on 4 November.

Judgement link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347715/1/WP46435-17-04-11-2020.pdf

Relevant paragraphs: 8. Condonation of delay is discretion of the Court. Sufficient cause depends on the facts of each case. Sufficient cause means adequate cause. The party who seeks conduction of delay shall demonstrate  that  there  was no negligence, or there was no inactiveness  on  his part. The reasons for condonation of delay must be bonafide and reasonable. Sufficient case (sufficient cause) is to be given liberal interpretation to ensure that substantial justice is done. An order of dismissal from service will have far reaching civil consequences on the petitioner, as the order of dismissal virtually amounts to deprivation of right to livelihood. In that circumstances, the Tribunal has failed to exercise jurisdiction vested in it.

The  Hon’ble  Apex  Court  in  the  case  of  M/s.  Katiji  and others cited supra while considering Section 5 of the Limitation Act has held that “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the  ends  of  justice.    Further  the  Hon’ble  Apex  Court  has observed that while condoning the delay liberal approach is to be adopted keeping in mind the following principles:-

(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. Asagainst which when delay is condoned the  highest that can happen is that a cause would be decided on merits after hearing the parties.

(3) ‘Every day’s delay must be explained’ does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.

(4) When substantial justice and technical considerations are pitted against each other, cause of substantial deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”

Judgments in G.    RAME   GOWDA   AND    OTHERS    Vs.    SPECIAL    LAND ACQUISITION  OFFICER,  BANGALORE,  reported  in  (1988)  2SCC 142 and N.BALAKRISHNANVs.M.KRISHNAMURTHY   reported   in   (1998) 7 SCC 123 relied on.

10. The  cause  stated by the petitioner in the facts and circumstances of the case would constitute sufficient cause to condone the delay of 60 days in filing the appeal. The Tribunal failed  to  exercise its discretion judiciously while considering the application filed under Section 5 of the Limitation Act.

Writ Petition allowed.

Compiled by S. Basavaraj and Sreekriti Taggarse, Daksha Legal.

Geetha Pandit Rao and another vs State of Karnataka and others. Writ Petition 7717/2020 & Writ Petition 226494/2020 decided on 30 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350506/1/WP7717-20-30-11-2020.pdf

Relevant Paragraphs: (after thoroughly discussing case laws). 48. In order to ascertain correct position of law relating to interpretation of word “substitution”, it is relevant to consider the law declared by the Hon’ble Supreme Court in the case of VINEETA SHARMA (supra), wherein at paragraph 56 and 57 of the judgment, the Hon’ble Supreme Court, has held thus: “56. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.

49. In view of the law declared by the Hon’ble Supreme Court with regard to ‘substitution’ in the case of VINEETA SHARMA (supra), the observation made by the Hon’ble Supreme Court in the case of SRI VIJAYALAKSHMI RICE MILLS and in the case of BHAGAT RAM (supra) are not applicable to the peculiar circumstances of these cases as the impugned amendment was procedural in nature and not substantive, as contended by the learned Senior Counsel appearing for the petitioners.

52. The above discussion would persuade me to deduce and infer that, the interim of the respondent-State, while amending the impugned Act and Rule was to give effect retrospectively. The respondent-State was conscious of the nature and character of the object of the Act. I have also carefully observed that, the use of word ‘substituted’ in the amended Act and Rules would subserve and support the submission of the learned Counsel appearing for the respondents.

54.After considering the judgments referred to above with regard to interpretation made to word ‘substitution’ and applying the same for the present case, which is procedural in nature, as the ‘vested rights’ or ‘accrued rights’ as contended by the learned counsel appearing for the petitioners, would begin from the date of their assumption of office as Member of the  Zilla Panchayat and in that view of the matter, the contentions so advanced that the impugned amendment commences from the date of publication to the Act cannot be considered. In other words, the impugned amendment is retrospective in nature and not prospective.

55. In view of the law declared by the Apex Court referred to above and considering the submissions made by the learned counsel appearing for the parties, as well as looking into the intent of the legislature which amending the Act, to give effect to democratic values enshrined under Constitution of India, I found that, no public interest is involved insofar as the petitioners are concerned and on the other hand, the factum of public interest lies in favour of the members sought for non-confidence motion against the petitioners, as it is trite law that, democratic principles are the basic pillars to the golden lines runs through the provisions of the Constitution of India.

HELD: Ordinance 2 of 2020 dated 31st March, 2020 to Karnataka Grama Swaraj and Panchayat Raj (Amendment) Ordinance, 2020; and Karnataka Grama Swaraj and Panchayat Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 2020

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/350505/1/WPHC92-20-27-11-2020.pdf

Relevant paragraph: 4. Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing … or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by Section 86(i)(b) of the Amending Act 104 of 1976 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151 CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court’s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.

Compiled by S.Basavaraj, Advocate, Daksha Legal

RELEVANT PARAGRAPH 13. Even otherwise, under law revocation of agency by the principal immediately terminates the agent’s actual authority to act for the principal unless the agent’s authority is coupled with an interest as envisaged under Section 202 of the Indian Contract Act. When agency is revoked, the agent could claim compensation if his case falls under Section 205 or could exercise a lien on the principal’s property under Section 221. The agent’s lien on principal’s property recognised under Section 221 could be exercised only when there is no agreement inconsistent with the lien. In the present case the terms of the agreement by which the respondent was appointed as agent, expressly authorises the company to occupy the godown upon revocation of agency. Secondly, the lien in any event, in our opinion, cannot be utilised or taken advantage of to interfere with principal’s business activities.

Compiled by S.Basavaraj, Advocate, Daksha Legal

Ajay J Nandalike, Advocate, Bangalore

In the aftermath of COVID-19, courts and arbitrations are beginning to adopt virtual hearings as a means of justice dispensation. There is some debate about conducting cross-examination online. A view that is possible is that cross-examination can be conducted online, however, someone from the other side is physically present in the same room as the witness to avoid tutoring. Another view is to have a physical hearing in respect of cross-examination but restrict the scope of cross-examination by encouraging the use of interrogatories. In this background, this article explores how one can use interrogatories effectively to aid cross-examination. The benefits of an effective use of interrogatories include restricting the scope of cross-examination, creating more effective cross-examination, reducing superfluous questions etc.

Instances where an Interrogatories are beneficial

1. Narrowing the scope of controversy: The opponent may not refer to certain facts in the proof affidavit or be silent in respect of some information. It does not mean that the opponent is denying the information. In this situation, the scope of the dispute can be reduced by asking the opponent to admit certain facts by way of interrogatories. These admissions may not harm the case of the opponent but may aid another party’s narrative or may be required for the sake of completeness. This will reduce the necessity of cross-examination on that issue.

2. Reducing the reliance of documentary evidence in relation to certain aspects: The witness may be relying on some voluminous documents or it may contain detailed technical specifications. In order to avoid the court / Arbitral Tribunal to rely on complete document, one can ask interrogatories seeking the witness to state the relevant procedure or provide technical details or as to which page number of the Exhibit where the details are available. This will ensure that the cross-examination will only be restricted to those page numbers of the Exhibits. It may also so happen that a document produced by the witness may not at all be relevant to the matter. In such a situation, one could seek reasons for reliance on a particular document. This will restrict the scope of cross- examination in relation to that document.

3. Excluding aspects which the witness does not have knowledge of: If the Legal Manager of the Company files the proof affidavit on behalf of the Company, it is possible that he is deposing entirely on the basis of records. However, there may be several statements in the affidavit which may not be based on records. These need to be carefully gleaned out and the witness can be asked to identify the source of the statement made in the affidavit. If the witness refers to a document, then if the document is not produced or if the document does not depict the said fact, the fact is not proved. If the witness refers to some information obtained from other company personnel and names such a person, then without that person stepping into the witness box, the fact is not proved. The reference to that fact in the proof affidavit of the witness would be hearsay evidence and cannot be accepted. There would be no need to cross-examine the witness on those facts in the affidavit at all.

4. Identifying the source of the information: The witness may be making certain assertions without stating the supporting facts or producing the supporting documents on the basis of which such statements are made. If questions are asked in cross-examination for the first time regarding the source, the answers may surprise the cross-examiner and one may require more time to prepare to cross-examine further in response to such answers. It may also result in a situation where one is not able to fully cross-examine on that issue because of an unexpected answer. Hence, interrogatories will provide an opportunity to prepare for such surprises.

5. Establishing timelines and dates: It is also possible to utilize the interrogatories to establish a timeline and to organize the information in the affidavit if it has been put in a haphazard manner. If one is required to connect facts stated in the opponent’s affidavit in a manner which is suitable for one’s case, then it is possible to do so. If the affidavit omits a crucial link, it is possible to bring out that information in the timeline by seeking the opponent to confirm that particular fact. Similarly, one can ask the witness to confirm certain dates and events. If the witness intends to deny the timeline, it will help one focus the cross-examination on that specific aspect in the timeline which is denied. This saves considerable time during cross-examination.

6. Getting more information / better particulars relating to technical or procedural aspects: Answer to Interrogatories may be more complete than cross examination. Unlike depositions, interrogatories may inquire not only into the responding party’s present recollection, but also into the collective knowledge available to him or her, including knowledge of his or her agents and attorneys. One may want certain undocumented details or technicalities about some procedure on record. This information requires reference to certain documents which may not be on record or may be just an undocumented business practice of the company, then it is a good idea to ask it in interrogatories. Witness cannot say that he does not have personal knowledge or that he needs to examine records. For instance, one can ask a question regarding the procedure followed internally for clearing an invoice, which departments are involved, who needs to sign off etc. This information will provide a foundation for cross-examination on whether an invoice was improperly cleared, whether there was waiver etc.

7. Evasive Witness: One of the problems that is faced during cross-examination is the witness may not want to reveal certain information despite being aware of the same. So, the witness may say that the he does not have personal knowledge, he will need to refer to document, he did not understand the question etc., or he may not deliver a complete answer. However, in an interrogatory, he cannot say so. He will have the benefit of looking at all relevant documents, seeking information from other persons in the company, seeking advice from counsel, technical persons etc. Although it is possible to give an evasive answer, if care is taken to identify what relevant facts one wants the witness to state, the witness will have to give a yes or no answer.

8. Pinning down the opponent’s case: It is possible that an opponent will have multiple defences which are taken without prejudice to one another or case may be based on multitude of facts. When the opponent is being cross- examined, it would be possible to give contradictory answers or misconstrue the questions or provide caveats in some manner. In construction arbitrations, interpretations of actions of parties revolve around what constitutes general or best engineering / construction practice. If one is able to pin the opponent’s case on any particular issue by eliciting in an interrogatory as to whether they would accept xyz as the best engineering practice and if not, the reasons for the same, one would have a foundation to cross-examination on that issue and elicit appropriate responses. If you are able to rebut the case of the other side with some new information / documents, then interrogatories are an excellent place to pin down the witness. In cross, the witness may want to clarify his statement or say that he misunderstood the question. However, a tightly worded interrogatory requiring an absolute answer will ensure that the opponent is pinned to that position. While cross-examining, one can rebut the case by producing the information / document and create contradictions.

9. Denied document – Before the trial begins, parties exchange statement of admissions and denials of the documents produced by the other party. Typically, one will deny the receipt of the document or deny the contents of the document. If the receipt of the document is denied, the attempt is to either to verify if the document is referred in any other document which is admitted by the opponent or proof of receipt is to be furnished. An interrogatory could focus on referencing some event or action that would have been undertaken pursuant to the denied letter so that portions of the letter can be admitted. If the content of the document is denied, it would be beneficial to identify which portions of the letter are admitted and which portions are denied so that the cross-examination is restricted only to that portion. denial of basis of such denial. If you have received the document, did you reply back to the letter and details of the letter so replied back. You could ask under what circumstances did you decide not to reply back to the letter. Document identification interrogatory is useful if you intend to tie a document to a specific event.

10. Getting information not obtainable from an individual deponent – When conducting discovery against corporations, e.g., in a products liability case, the plaintiff may need to discover information about every other person injured by the same product. Probably no individual employee of the corporation would know the answer, because it would require a search through records. An interrogatory would require the corporation to search its records and conduct a reasonable investigation to gather the information. It’s often useful to have a corporate deponent designate the person who’s most qualified to testify on specified matters.

11. Breaking down the complex claim – In construction arbitrations / claims, there may be complex claims which are bunched together. For instance, idle charges may be bunched together for the entire contract period. It would make sense to seek clarity on the break-up of the claims, basis for the claims, what documents are being relied on for what claim. Additionally, it would be possible to ask questions on mitigation steps. The answers given by a witness can be tested in cross-examination under a more thorough questioning. This will enhance the value of the cross-examination.

12. Create contradictions – One must bear in mind that the interrogatories are drafted with the aid of the opponent’s counsel. Hence it is possible that the counsel’s thoughts and legal correctness may gloss over the facts or assume facts which may not be true. If the same question is asked in another context, the answer may be different in the course of cross-examination. This is extremely risky as the witness may stick to the counsel’s stand. It is also advisable not to ask about incidents which are based on personal knowledge as the counsel may add relevant details, make it complete. Witnesses have imperfect recollections, details of conversations may actually be different, but a counsel can bring a sense of completeness by covering all loopholes.

Effective use of interrogatories will not only aid the cross-examination, but also help the Arbitral Tribunal / Civil Courts to focus on the relevant facts and reign in the cross- examination. Interrogatories form part of the evidence of the parties and would have a greater weightage than cross-examination. If strict time periods are imposed on the cross-examination, then meandering around unnecessary questions can be avoided, a lot of the necessary information can be gleaned out in interrogatories. Typically, there is a need to establish certain background facts during cross and this can be achieved in cross-examination. However, it is not being used effectively due to lack of awareness of its benefits. One hopes that this article will aid practitioners to use interrogatories effectively.

(Ajay J Nandalike is an advocate practicing in Pragati Law Chambers, Bangalore)