Monday, January 29, 2024

Bail Cannot Be Cancelled Merely Due To Non-Appearance Of Accused Before Court: Supreme Court

The Supreme Court recently observed that the non-appearance of the accused party is no grounds for cancellation of bail.

The three-judge Bench of Justices B.R. Gavai, Sanjay Karol, and Sandeep Mehta was hearing a criminal appeal arising out of the impugned order of the Calcutta High Court cancelling bail.

The High Court had noted that, on several occasions, it directed the accused person to appear personally before the Court. However, the Court, while cancelling the bail, had observed that neither the accused nor his lawyer was present. It recorded that this non-appearance 'exposes an insolent stance of opposite party No.2 to evade the process of law.' Against this backdrop, the matter came up before the Top Court.

Therein, the appellant's counsel apprised the bench of the reason for such non-appearance. He submitted that there was a traffic jam due to VIP movements and therefore, the appellant could not attend the Court. Besides, the Counsel also averred that the appellant's lawyer was not present on the concerned date, as his Vakalatnama was withdrawn.

After recording the submissions, the Court observed that if bail has been granted, the same can be cancelled if any conditions are violated or liberty is misused.

“..we find that merely because the appellant did not appear personally could not have been a ground for cancellation of bail. The parameters for the grant of bail and cancellation of bail are totally different. The bail already granted may be cancelled, if it is found that the person who has been granted the benefit of bail has violated any of the conditions or misused the liberty by influencing the witnesses or tampering with the evidence.”

The Court observed that the impugned judgment does not contain any of the above-mentioned reasons. Thus, the Court set aside the same.

Monday, January 15, 2024

When Maintainability Of Suit Is Questioned, Court Should Prima Facie Decide Jurisdiction Before Granting Interim Relief : Supreme Court

The Supreme Court has observed that if the maintainability of a civil suit is questioned and the grant of interim relief is opposed on that ground, then the trial court, before deciding to grant the interim releif, must at least make a prima facie satisfaction regarding the maintainability of the suit.

"Where interim relief is claimed in a suit before a civil court and the party to be affected by grant of such relief, or any other party to the suit, raises a point of maintainability thereof or that it is barred by law and also contends on that basis that interim relief should not to be granted, grant of relief in whatever form, if at all, ought to be preceded by formation and recording of at least a prima facie satisfaction that the suit is maintainable or that it is not barred by law", observed a bench comprising Justices BR Gavai, Dipankar Datta and Aravind Kumar.

"It would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Rule 2 of Order XIV, CPC. That could amount to an improper exercise of power," the judgment added.

If the court thinks at the stage of hearing the application for interim relief that the suit is barred by law or is otherwise not maintainable, it cannot dismiss it without framing a preliminary issue after the written statement is filed but can most certainly assign such opinion for refusing interim relief.

At the same time, if there is an extraordinary situation where a decision on the maintainability will delay the grant of interim relief which can cause irreparable harm, the Court may pass an appropriate order after assigning proper reasons.

"However, if an extraordinary situation arises where it could take time to decide the point of maintainability of the suit and non-grant of protection pro tem pending such decision could lead to irreversible consequences, the court may proceed to make an appropriate order in the manner indicated above justifying the course of action it adopts. In other words, such an order may be passed, if at all required, to avoid irreparable harm or injury or undue hardship to the party claiming the relief and/or to ensure that the proceedings are not rendered infructuous by reason of non-interference by the court,” the Court explained.

Also from the judgment - Order 8 Rule 10 CPC | Suit Can't Be Decreed Merely On Defendant's Failure To File Written Statement If Plaintiff's Case Isn't Proved : Supreme Court


Saturday, January 6, 2024

Notice Under S.138 NI Act Invalid If Omnibus Demand Is Made Without Specifying Cheque Amount : Supreme Court

Finding the demand raised in a notice issued under Section 138 of the Negotiable Instruments Act, 1881, to be omnibus in nature, the Supreme Court quashed a criminal case for the dishonour of a cheque. The appellant-notice holder filed a petition before the Delhi High Court for quashing of summoning order passed by the Magistrate taking a plea that the notice had made out an omnibus demand without specifying what was due under the dishonoured cheque. Hence, it was argued, that the notice has failed to meet the legal requirement as per the dictum of the Supreme Court passed in Suman Sethi vs. Ajay K.Churiwal and Anr.

The Delhi High Court, which found no merit in the petition, in para 4 of the order observed that: “The respondent in his notice did not ask for the total amount due but simply asked for the amount of cheque and compensation of same amount plus Rs.50,000/- for mental harassment. The amount of compensation and harassment are severable and to my mind would not invalidate the legal notice dated 02.12.2013.”
The Supreme Court bench comprising Justices CT Ravikumar and PV Sanjay Kumar while referring to the case Suman Sethi, in para 6 noted that: “A bare perusal of the decision referred (supra) would reveal that a demand in addition to the cheque amount in a demand notice by itself would not make it invalid. In other words, as held therein, in the demand notice, demand has to be made for the 'cheque amount' and therefore, notice sans such demand would fall short of legal requirement. At the same time, we will reiterate the position that if in a notice while giving the break up of the claim the cheque amount interest, damages, etc. are separately specified and these additional claims would be severable, such demand would not invalidate the notice. In short, in a notice of demand made under the N.I. Act demand shall not be omnibus, there must be a clear demand for the cheque amount lest notice will be invalid. This law laid down as above has to be applied to decide the validity or otherwise of Annexure P-2-demand notice.”