Author: Indira Banerjee, J. HINDU MARRIAGE ACT 1956- Section 5,11 and 15 – Void Marriage- CRIMINAL PROCEDURE CODE 1973 – Section 125 – Claim for Maintenance- Maintainability – Decree of divorce passed in June 2005 – The limitation period for filing appeal expired in September 2005 – Aggrieved by decree of divorce passed in June 2005 wife

WEEKLY RECAP
SATURDAY SPECIAL.5
19.04.2020 – 25.04.2020
FIFTH WEEK

19.04.20 – SUNDAY

Supreme Court of India
Krishnaveni Rai
vs Pankaj Rai
Dt. 19.02.2020
Bench:
Arun Mishra, J.
Indira Banerjee, J.
M.R. Shah J.

Author:
Indira Banerjee, J.

HINDU MARRIAGE ACT 1956- Section 5,11 and 15 – Void Marriage- CRIMINAL PROCEDURE CODE 1973 – Section 125 – Claim for Maintenance- Maintainability – Decree of divorce passed in June 2005 – The limitation period for filing appeal expired in September 2005 – Aggrieved by decree of divorce passed in June 2005 wife filed an appeal in Aug 2006 against grant of divorce almost a year after expiry of the period of limitation -The delay in filing the appeal was condoned by an order passed in July 2007 and the decree divorce was not stayed – wife who filed the appeal (Krishnaveni)got remarried to another person by name Pankaj Raj in 2014 and the Appeal filed by her against the decree of divorce was withdrawn and dismissed in 2017 – Second marriage of Krishnaveni with Pankaj Raj did not work well – She was thrown out of matrimonial home – Krishnaveni filed a petition for maintenance against Pankaj Raj under Section 125 CrPC -Supreme Court held that that a marriage validly contracted after the divorce and after expiry of the period of limitation to file an appeal from the decree of divorce is a valid marriage- It is not rendered void on the filing of a belated appeal –
Marriage with Pankaj Raj was held to be a valid marriage- Claim for Maintenance was held sustainable – Matter remanded to Family Court to decide quantum of Maintenance –
RV/28/20/FL/ 5/CrPC/125/ME/19420

20.04.20 – MONDAY

Supreme Court of India
Mr. Rajendra K. Bhutta
vs Maharashtra Housing And Area Development Authority(MHADA)
Dt. 19.02.2020

Bench: Rohinton Fali Nariman J.
S. Ravindra Bhat J.
V. Ramasubramanian J.

Author:
Rohinton Fali Nariman

Insolvency and Bankruptcy Code, 2016 – Section 14 – Moratorium on Institution of suits or proceedings- Corporate Debtor defaulting in repayment of the loan to its financial creditor, namely the Union Bank of India – An Insolvency Application was filed under Section 7 of the Code – It was admitted and an Interim Resolution Professional was appointed- A moratorium and statutory freeze of actions in terms of Section 14 was also declared by this order – Land given for development and occupied by the Corporate Debtor pursuant to Joint Venture Agreement was sought to be recovered – Held moratorium imposed under Section 14 of the Code would apply to such proceedings relating to recovery of possession-
RV/29/20/IBC/14/RPSN/20420/

21.04.20 – TUESDAY

THE SUPREME COURT OF INDIA
The Idol of Sri Renganathaswamy
Represented by its Executive Officer,
Joint Commissioner
Vs.
P K Thoppulan Chettiar,
Ramanuja Koodam Anandhana Trust, Rep. by its Managing Trustee and Ops
Dt. 19.02.2020

Bench:
Dr Dhananjaya Y Chandrachud J.
Ajay Rastogi J.
Author:
Dr Dhananjaya Y Chandrachud J.

Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 – Section 6(19) – Specific Endowment- Section 34. – Grant of Permission to sell the property endowed – Section 108 – Bar of suit – Suit filed by Respondent Trust seeking permission to sell a portion of property in order to carry on Charitable activities. On the other portion of the property, which is to be retained there is a Stone Mandapam for the deity of Sri Renganathaswamy –
Supreme Court Dismissed the suit holding that the Respondent was a Public Trust and the suit was not Maintainable- It was held that the Deed of Settlement executed by the original owner created a specific endowment within the meaning of Section 6(19) of the Act and therefore Section 108 of the Act of 1959 bars the jurisdiction of civil courts with regard to matters regulated by the provisions of the Act of 1959 and required the permission of the authority under Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 – Decree of Civil Court set aside and Liberty given to adopt the prescribed procedure under the Act of 1959.

Public Trust and Private – Essential
Distinction and Difference –
The essential distinction between a Public Trust and a Private Trust is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description . In a private trust the beneficiaries are definite and ascertained individuals or who can be definitely ascertained – The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust – The devotees as a class of beneficiaries are not definitive and therefore, the respondent trust was held to be a public trust.
RV/30/20/HRCE/6,34,108/ SE/PT/21420/

22.04.20 – WEDNESDAY

THE SUPREME COURT OF INDIA
APS Forex Services Pvt Ltd Vs.
Shakti International Fashion Linkers
Dt. 14.02.2020

Bench: Ashok Bhushan J.
M.R. Shah J.

Author: M.R. Shah

Negotiable Instruments Act 1881 – Section 138 – Dishonour of Cheque- Section 118 and 139 – Presumption as to consideration with regard to Negotiable Instruments – Rebuttable- Dishonour of Cheque on the ground of Insufficiency of Fund and the replaced Cheque was also dishonoured on the ground of Stop Payment – Accused admitted the signature and execution but denied lawful liability and pleaded that Cheques were issued as Security-
Supreme Court Convicted the Accused as Statutory presumption in favour of Complainant had not been rebutted –

Supreme Court held that accused did not plead in reply notice that cheque was issued as Security – On dishonour of Earlier Cheques a Consolidated fresh cheque was issued – Further held that The presumptions under Sections 118 and 139 of the Act are in favour of the Complainant-This statutory Presumption will exist and such presumptions will end only when the contrary is proved by the accused which the accused failed in this case. Hence the accused was held liable to be convicted-

Presumption with regard to consideration for execution of Negotiable Instrument is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that it was issued as security or full amount due and payable to the complainant has been paid.
RV/31/20/NI/138/ DC/22.04.20/

23.04.20 – THURSDAY

THE SUPREME COURT OF INDIA
Anjuman E Shiate Ali & Anr. Vs.
Gulmohar Area Societies Welfare Group & Ors. etc.
Dated 17.04.2020.

Bench:
MOHAN M. SHANTANAGOUDAR J.
R.SUBHASH REDDY,J.

Author
R.SUBHASH REDDY,J.

TOWN AND COUNTRY PLANNING- PLOTS RESERVED FOR OPEN SPACES – CONVERSION- NOT PERMISSIBLE – Open Spaces in Approved lay out cannot be subsequently converted – Plots which are shown as open spaces/garden in the approved layout of 1967, can not be allowed to be utilized for constructions in view of the subsequent development plan prepared by Maharashtra Housing And Area Development Authority(MHADA)-

When the layout is to be approved, certain percentage of area is required to be left towards roads, open plots, garden etc. The development Plan prepared by MHADA, cannot be confused with the layout plan which was approved – Conversion of such open space into residential plots not permissible-

DEVELOPMENT PLAN – OBJECT AND PURPOSE –
Development plans are prepared by showing various zones such as residential, commercial, industrial etc. Merely because in such development plan prepared, in the area shown for residential purpose, authorities have not indicated the open spaces/garden, which were already left in the approved layout in such residential area, appellants cannot claim the benefit of making constructions in the plots which were left towards open space/garden – Such claim is unsustainable-
RV/32/20/TCP/OSR/ DP/230420/

24.04.20 – FRIDAY

THE SUPREME COURT OF INDIA

Dr. Thingujam Achouba Singh & Ors.
Vs. Dr. H. Nabachandra Singh & Ors.
Dt. 17.04.2020

Bench
R.Banumathi J.
R. Subhash Reddy, J.

Author:
R. Subhash Reddy, J.

SERVICE LAW – APPOINTMENT- CHALLENGE TO ADVERTISEMENT – Advertisement calling for Application for Appointment to the Post of Director of Regional Institute of Medical Sciences
(RIMS)Imphal and to renotify the same afresh with proper qualification since the advertisement did not prescribe the experience as prescribed by the Medical Council of India –

Challenge to Advertisement was also on the ground that amendment to the rules based on which Advertisement was issued were invalid as they were not duly published – Rules were not directly challenged – Not granting age relaxation was another ground of challenge –

Qualifications :
Supreme Court held that advertisement is valid and held that the Experience prescribed in the Advertisement is proper.
Validity of Rules:

Supreme Court further held that the High Court has committed, an error in going into the validity of the Rules, in the absence of any direct challenge to the same –
Age Relaxation:
Supreme Court held that While it is open for the employer to notify such criteria for relaxation when sufficient candidates are not available, at the same time nobody can claim such relaxation as a matter of right. The eligibility criteria will be within the domain of the employer and no candidate can seek the same as a matter of right, to provide relaxation clause – Direction given by High Court in this regard was held not proper-
RV/33/20/ SL/APPT/QN/240420/

25.04.20 – SATURDAY

THE SUPREME COURT OF INDIA

SUSHILABEN INDRAVADAN GANDHI
Vs.
THE NEW INDIA ASSURANCE COMPANY LIMITED
Dt. 15.04.2020

BENCH:
ROHINTON FALI NARIMAN J.
A.S. BOPANNA J.

AUTHOR:
ROHINTON FALI NARIMAN J.

MOTOR VEHICLES ACT 1988 – SECTION 166- MOTOR ACCIDENT- DEATH- INSURANCE CLAIM- INSURANCE COMPANY RELIES ON EXCLUSIONARY CLAUSE AND DENIED LIABILITY ON THE GROUND THAT THE DECEASED WAS AN EMPLOYEE AND HENCE NOT COVERED –

CLAIM MADE ON THE BASIS THAT HE WAS ON CONTRACT FOR SERVICE (INDEPENDENT PROFESSIONAL )
AND NOT CONTRACT OF SERVICE (EMPLOYEE)-INSURANCE COMPANY WHETHER LIABLE-

Husband of the Appellant was a surgeon and was travelling in a mini-bus that was owned by the Rotary Eye Institute, along with other medical staff of the said Institute which met with an accident and he succumbed to injuries and died. Claim in respect of employees are excluded as they are covered by different legislations-

The husband of the Appellant Dr. Alpesh I.Gandhi, had entered into a contract dated 04.05.1996, as an Honorary Ophthalmic Surgeon at the aforesaid Eye institute with Honorarium.

Appellant claimed compensation for the death of Dr. Alpesh I. Gandhi at INR One crore. Dr. Gandhi was 28 years old at the time of his death and was earning a monthly income of INR 13,000.

Supreme Court held that Dr.Alpesh Gandhi was on a Contract for service as an Independent Professional and hence Insurance Company is liable and the appellant was entitled to Compensation as awarded by the Tribunal.

RULE OF CONTRA PROFERENTEM- MEANING – APPLICABILITY TO INSURANCE CONTRACTS – INTERPRETATION OF CONTRACT-

In Halsbury’s Laws of England (5th Edn., Vol. 60, Para 105) principle of contra proferentem rule is stated thus:
“Contra proferentem rule.—Where there is ambiguity in the policy, the court will apply the contra proferentem rule. Where a policy is produced by the insurers, it is their business to see that precision and clarity are attained and, if they fail to do so, the ambiguity will be resolved by adopting the construction favourable to the insured. Similarly, as regards language which emanates from the insured, such as the language used in answer to questions in the proposal or in a slip, a construction favourable to the insurers will prevail if the insured has created any ambiguity.

CONTRACT OF INSURANCE AND OTHER CONTRACTS – UBERRIMA FIDES –

There is a difference between a contract of insurance and any other contract in that in a contract of insurance there is a requirement of uberrima fides i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem that is against the Insurance company and in favour of the Insured in case of ambiguity or doubt in the Contract. Exemption of liability clauses in insurance contracts are to be construed in the case of ambiguity contra proferentum.

1.General Assurance Society Ltd. vs. Chandmul Jain - 1966 SC 1644 : (1966) 3 SCR 500
2.  Industrial Promotion & Investments Corpn. of Orissa Ltd. vs. New India Assurance Co. Ltd. 2016 15 SCC 315 Relied upon-

CONTRACT FOR SERVICE (INDEPENDENT PROFESSIONAL )
AND CONTRACT OF SERVICE (EMPLOYEE)-TEST – MEANING- DISTINCTION AND DIFFERENCE- CONTROL TEST – INTEGRALITY TEST-
The earliest test laid down to distinguish between a contract of service and a contract for service, namely, that whereas in the latter case, the master can order or require what is to be done, in the former case, he can not only order or require what is to be done, but also how it shall be done. After referring to a number of English judgments, Supreme Court held, giving the example of a ship’s master, a chauffeur, and a reporter on the staff of a newspaper as against a ship’s pilot, a taxi man and a newspaper contributor, that the test would be whether work is done as an integral part of the business of the employer, in which case it would be a contract of service, or whether it was done as an accessory to such business, in which case it would be a contract for service. Other tests that were laid down were as to whether the master had the power to select the servant, whether he paid wages or other remuneration, whether the master had the right to control the method of doing the work, and whether the master had the right to suspend or dismiss the employee.
However the test of control was not one of universal application and that there were many contracts in which the master could not control the manner in which the work was done Ultimately, it would be a question of fact to be decided by all the circumstances of the case.
RV/34/20/INS/COS/CFS/ INTCONT/25420/