Top New Headlines 4th Apr 2022: Plaint To Be Rejected When Relief Sought Is To Restrain Defendant From Initiating Prosecution Against Plaintiff

Plaint To Be Rejected When Relief Sought Is To Restrain Defendant From Initiating Prosecution Against Plaintiff: SC

• In the case of M/s Frost International Limited vs M/s Milan Developers and Builders Pvt Ltd. and anr. the Apex Court has held that a relief sought in the plaint with the objective of restraining a prosecution against the plaintiff will be barred by law and can be a ground for allowing an application for rejection of plaint under Order VII Rule 11 of CPC.
• In the instant case, the appellant had issued a notice to the respondent under section 138 of the Negotiable Instruments Act wherein he had alleged the dishonour of certain cheques. The respondent had filed a suit seeking a declaration that the appellants had been given these cheques as security and that they were not entitled to them as they had not held up their end of the bargain.
• The appellant had then filed an application for the rejection of the plaint under Order VII Rule 11 of CPC, which was refused. It was then allowed by the revisional Court and the plaint was rejected. Thereafter, a writ petition was filed before the Orissa HC which had set aside the order of the Court of revision, observing that it had exceeded its jurisdiction, and the matter was then remanded for fresh consideration. Aggrieved, the matter was appealed in the Hon’ble Apex Court.
• The Apex Court observed that section 115 of CPC provides that the revisional Court was conferred with the powers to reverse an order which would finally dispose of the suit. Thus, by allowing an application seeking the rejection of plaint, the Court had not exceeded its jurisdiction. In arriving at this conclusion, the Court referred to a plethora of judgements, including Pandurang Dhondi Chougule and ors vs Maruti Hari Jadhav and ors AIR 1966 SC and Tek Singh vs Shashi Verma and anr (2019) SCC.
• Referring to the cases of T. Arivandandam vs TV Satyapal and anr (1977) SCC and ITC Ltd vs. Debts Recovery Appellate Tribunal and ors. (1998) SCC the Court held that the basic question that needs to be decided while dealing with an application filed under order VII rule 11 is whether a real cause of action has been set out in the plaint or something purely illusory has been stated solely to get out of Order VII Rule 11 of the Code.
• The Court also observed that the argument that the plaint was barred by Section 34 of the Specific Relief Act is devoid of merit as an omission on the part of the plaintiff to pray for consequential relief is relevant only at the time of final adjudication of the suit and not at the preliminary stage.
• Another reason that was cited for seeking rejection of the plaint was that respondent 1 had prayed for a declaration that the cheque issued in the name of the appellant was only a security and not liable to be encashed. It was argued by the appellant that, in essence, the respondent had frustrated his right to move against him under the Negotiable Instruments Act. Section 118 of the NI Act states that unless the contrary is proved, it shall be presumed that every negotiable instrument was made or drawn for consideration.
• It was held that the reliefs sought in the plaint frustrated the rights of the applicants to take steps under the NI Act for dishonour of cheque. The Court referred to the case of Cotton Corporation of India Ltd. vs United Industrial Bank Limited and ors. (1983) SCC and Ratna Commercial Enterprises Ltd vs Vasutech Ltd. AIR 2008 Del. and held that the reliefs sought are barred by law because no plaintiff can be allowed to claim a relief in a suit which would frustrate the defendants from initiating prosecution against the plaintiff or seeking any other remedy which is barred by law.

Direction To Take A Voice Sample Not A Violation of Article 20(3) Of The Constitution: Punjab And Haryana HC

• The Hon’ble Punjab and Haryana HC has reiterated in Ravi Prakash Sharma vs. State of Punjab that directions to take voice samples of the accused is not violative of the doctrine against self-incrimination as envisaged in Article 20(3) of the Constitution.
• The Court observed that the infringement of the Fundamental Right to Privacy cannot be used as a shield to scuttle the investigation nullifying the evidence collected.
• In this case, the Additional Sessions Judge had given an order directing the petitioner to give a voice sample. An FIR was registered against him under the Prevention of Corruption Act, 1988 for taking illegal gratification. The telephonic conversations of the accused had been taken by the police.
• The prosecution then filed an application for taking a voice sample, while the petitioner argued that this is in violation of Article 20(3) of the Constitution, and is also violative of the Fundamental Right to Privacy.
• While deciding whether the taking of a voice sample is in violation of the right of privacy, the Court referred to the decision of the Apex Court in Justice KS Puttaswamy vs. Union of India and ors (2017) SCC and observed that the right of privacy is not absolute. The Court observed that a voice sample resembles fingerprints and handwriting, and every person has a distinct voice with characteristic features dictated by vocal cavities and articulates. The sample which is taken is after permission in accordance with law. The sample taken isn’t itself an evidence, it is just used to compare the evidence already collected.
• The Hon’ble HC also referred to the case of Ritesh Sinha vs State of UP (2019) SCC wherein it was held that the direction to take a voice sample is not violative of Article 20(3).
• The Court also observed that with the passage of time, the modes of communication are also changing and that there is a need for new technology that can collect and compare the evidence.
• The Court also observed that unless a special provision is inserted in CrPC, a Judicial Magistrate must be given the power to order a person to give his voice sample for the purposes of investigation, and this power is conferred on the magistrate by judicial interpretation in light of Article 142 of the Constitution.
• Thus, the appeal was dismissed.

Power Of Attorney Has To Be Strictly Construed: SC

• In Umadevi Nambiar vs. Thamarasseri Roman Catholic Diocese (2022), a bench consisting of J. Hemant Gupta and J. V. Ramasubramanian held a Power of Attorney (GPA) document, when rigorously interpreted, does not include the power to sell. Furthermore, the agent's power to sell would be relevant only if the document enables him explicitly to implement the sale deed, present it for registration, and acknowledge its execution before the appropriate authority.
• In this case, the plaintiff enacted a GPA in favour of her sister, which was afterward revoked. Simultaneously, the sister was discovered to have signed four separate documents in the names of various third parties, assigning specific properties. Therefore, the plaintiff first filed two suits against the assignees. She then filed another lawsuit, seeking partition and a separate claim of a half share in the suit property. The trial court dismissed the claim, concluding that the deed did not provide any power to sell the land and, as a result, the plaintiff's sister was not allowed to transfer the property.
• Order II Rule 2, CPC requires that every suit include the entirety of the claim that the plaintiff is entitled to state in respect of a cause of action.
• Section 3 in The Transfer of Property Act, 1882 is an Interpretation Clause.
• Section 41 in The Transfer of Property Act, 1882 talks about the Transfer by the apparent owner.
• In a relevant case, Delhi development authority versus Durga Chand Kashish, (1973) 2 SCC 825, the rule of interpretation to be assumed while construing exhibit A1, the deed of GPA was observed.
• In another noteworthy case, Syed Abdul Khader V. Rami Reddy and others, (1973) 2 SCC 601, the Hon'ble Court noted the question as to how the deed of power of attorney should be construed.
• In Church of Christ Charitable Trust And Educational Charitable Society V. Ponniamman Educational Trust, (2012) 8 SCC 706, it was held that the agent should be authorized expressly by the document to implement the sale deed, present it for registration and admit execution of it before the registering authority.
• The Hon'ble Court ruled that the appellant must have had constructive notice of her sister's alienations under Section 3 of the TP Act, 1882, even though Order II Rule 2 CPC may not be applicable to partition suits, and that once constructive notice is attributed to the appellant, any relief for cancellation of documents would have been time-barred. Furthermore, the Hon'ble Court contended that because the GPA had no specific authorization to sell the suit property, the transferee could not be said to have exercised 'reasonable care' as demanded by Section 41 of the TP Act, 1882. Moreover, the appellant's omission to seek the remedy of setting aside the transfer instruments and regaining property control was fatal to her appeal.
• The Apex Court bench, while referring to the aforementioned cases, pointed out that the power of attorney deed did not include an express power to sell the property. However, it did include an express authorization to lease it and execute any document pledging the property as collateral for any debt. Furthermore, the court held that the High Court's grounds for determining that the plaintiff should have contested the alienations because she was out of possession was wrong.
• Therefore, the Hon'ble Court allowed the appeal by stating that the appellant's sister lacked the authority to sell the property to the respondent's vendors. Therefore, the respondent's sellers could not have derived any legal title to the land.