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the Counsel also averred that the appellant's lawyer was not present on the concerned date, as his Vakalatnama was withdrawn.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.

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

Case Title: ASMA LATEEF & ANR. V. SHABBIR AHMAD & ORS.

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

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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.”

Insurance Company Has No Contractual Or Other Relationship With Transferee Of Offending Vehicle: Delhi High Court

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The Delhi High Court has observed that an Insurance Company has no contractual or other relationship with the transferee of the offending vehicle in a road accident.

“The registered owner cannot absolve himself of the liability by contending that he had transferred the offending vehicle to a third person before the date of the accident,” Justice Navin Chawla said.

The court observed that the Insurance Company merely steps in as an indemnifier of the compensation which the registered owner of the Offending Vehicle, as being a primary person liable, has to pay to the victims of the road accident.

“Neither the victims of the road accident nor the Insurance Company can run after such persons whom the registered owner claims to have transferred the offending vehicle, and cannot be burdened with following a trail of successive transfers, which are not registered with the Registering Authority,” the court said.

It added: “If the registered owner of the offending vehicle is to seek any benefit of such contract in the form of indemnifying himself against the liability, such registered owner is also liable to reimburse the compensation that may be paid by the Insurance Company to the victims of the road accident if the Insurance Company is otherwise entitled to the same”

The court made the observations while dealing with two appeals filed by the registered owner of a motorcycle and a boy who was driving it, which hit a woman who later succumbed to the injuries.

They challenged an order passed by the Motor Accident Claims Tribunal vide which compensation of Rs.15,49,324 was granted in favour of the claimants and the Insurance Company, National Insurance Company Limited, was directed to pay the same at the first instance.

The tribunal also granted a right to the Insurance Company to recover the compensation amount from the registered owner of motorcycle and the boy was driving it at the time of the accident.

Noting that the motorcycle was being driven by a minor at the time of the accident, Justice Chawla said that the registered owner of the vehicle cannot absolve himself of his responsibility merely by contending that he had sold the bike before that date when he took no further steps to get the fact of such sale registered with the Registration Authority or intimate it to the Registration Authority and the Insurance Company.

“If such a registered owner has allowed a third person, maybe under a contract of sale, to use the vehicle, he remains responsible for his action. If such a third person further allows a minor or a person not holding a valid driving license to drive the vehicle, vicariously, the registered owner becomes responsible for such action of the third party,” the court said.

Accordingly, the court dismissed the appeal filed by the registered owner of the motorcycle. It set aside the Impugned Award allowing the Insurance Company to seek reimbursement of the claim amount from the minor boy.

S.498A IPC - Bail Condition That Husband Should Resume Conjugal Life With Wife Can't Be Imposed: Supreme Court

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The Supreme Court observed that while granting anticipatory bail to the accused husband under Section 498A of the IPC, a condition that the husband shall take his wife to his house and maintain and honour her, cannot be imposed.

A Division Bench of Justices Bela M. Trivedi and Satish Chandra Sharma was hearing the matter.

In the present case, the accused husband (appellant) had applied for anticipatory bail before the High Court of Jharkhand, Ranchi Bench. Though the High Court had granted bail to the husband, it imposed a peculiar condition. As per the same, the husband was required to take his wife to his home and maintain her with dignity and honour. For convenience, the same reads as follows:

“Accordingly, the petitioner is directed to surrender in the Court within six weeks from today and in the event of his arrest or surrendering, he will be enlarged on bail on satisfying the trial court that the petitioner has taken the opposite party no.2 to his house at Bandra locality of Ranchi and keeping and maintaining her with full dignity and honour as his lawful wife.”

According to this, the husband again approached the High Court, praying for modification of the above order. In a petition filed (for modification of order), the husband contended that he had hired a house and was ready to maintain his wife. Per contra, the wife contended that she was willing to resume her marital life provided that her husband joined her in their own house. However, the High Court dismissed his plea while observing that the appellant is resolute in not resuming his life with his wife at his own house.

“In view of the adamant attitude of the appellant in not resuming the conjugal life with the opposite party No.2 in the house of the appellant, where the opposite party No.2 was staying, his petition could not be considered.,” the High Court held.

Against this backdrop, the matter travelled to the Apex Court. The Court categorically opined that such a condition cannot be imposed while granting anticipatory bail. Additionally, this condition should not be a reason for rejecting the appellant's petition.

“In our opinion, neither such condition should have been imposed by the High Court while granting an anticipatory bail, nor such could be a ground for rejection of the petition filed by the appellant.”

while setting aside the impugned order, the Court granted bail to the accused.

S.138 NI Act | Availability Of Funds In Other Bank Accounts Not A Defence; Cheque Dishonour Relates To Specific Account: Supreme Court

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The Supreme Court on December 04 categorically held that in proceedings initiated for bounced cheques (under Section 138 of the Negotiable Instruments Act), the defence that there are sufficient funds in the other bank accounts cannot be appreciated.

“In a proceeding under Section 138 of the Negotiable Instruments Act, the accused cannot rely upon other bank accounts for the dishonoured cheque which relates to the specific bank account of the accused," held the bench of Justices Hrishikesh Roy and Sanjay Karol.

The complainant/ respondent filed complaints for the dishonour of different cheques issued by the same accused. As per the case of the complainant, he invested various amounts from time to time in the company of the accused. The investment was made on the assurance given by the accused that the complainant would receive a certain amount of money. Consequently, to discharge his liability, the accused handed over several cheques to the complainant.

However, when deposited, one of the cheques was returned unpaid due to insufficiency of funds. After receiving no response from the complainant, the accused filed a complaint under the relevant section of the NI Act. Additionally, the offence of cheating under IPC was also included. The trial court convicted the appellant and passed directions concerning the compensation. The same was challenged before the High Court. Though the High Court modified the sentence, it did not interfere with the conviction. In this background, the matter came before the Apex Court.

The Court took objection to this argument. The Court stated that when the cheques were issued, the appellant did not have sufficient funds.

It is seen from the impugned judgment itself that although ten cheques totalling a sum of Rupees Eighty Lakhs was issued by the petitioner, at the relevant point of time, the concerned bank account had a maximum deposit of Rs. 18,52,033/.”

Further, the counsel's argument related to the availability of funds with the appellant in different bank accounts did not find favour with the Court. As mentioned above, the Court held the accused cannot rely upon other bank accounts for the dishonoured cheque which relates to the specific bank account.

“Accordingly, the argument advanced by Mr. Maninder Singh, learned Senior Counsel of having adequate funds by reference to the other bank accounts of the company, cannot be of any assistance to the accused.,”

The Court dismissed the appeal.

Title Cannot Be Transferred On The Basis Of Agreement To Sell/General Power Of Attorney: SC Rejects Contention That 'Suraj Lamps' Judgment Is Only Prospective

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The Supreme Court has reiterated that a title with respect to an immovable property cannot be transferred based on an Agreement to Sell or a General Power of Attorney.

It rejected the contention that the judgment in the case of Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana and Anr. 183 (2011) DLT 1 (SC) is only prospective.

The Court was deciding an appeal against the judgment of the Delhi High Court which had affirmed a Trial Court’s judgment of decreeing the suit for possession and mesne profits.

The two-judge Bench of Justice Vikram Nath and Justice Rajesh Bindal held, “Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. … The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced.”

The Bench said that the Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis.

In this case, the appellant was a defendant in the suit for possession and mesne profits instituted by the respondent with respect to the property in question. The suit was filed based on a Power of Attorney, an agreement to sell, an affidavit, and a will executed in favour of the respondent. The appellant, admittedly, was in possession of the property in question and the suit was contested on several grounds that the appellant was the owner of the property having received the same based on a Hiba (oral gift) from its owner, his own brother. Secondly, the suit was not maintainable as none of the documents based on which the suit was filed were neither admissible nor enforceable under the law.

The findings recorded by the Trial Court were that all the issues were decided against the appellant and in favour of the respondent except issue no. 8 and decree for possession along with mesne profits was granted. In a regular appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) the High Court confirmed the finding with regard to the claim of the appellant regarding Hiba in his favour and held that the appellant had failed to prove the same. With respect to the other argument regarding the suit being maintained based on an unregistered document, the High Court, although in principle agreed but proceeded to uphold the decree of possession on the ground that the respondent had filed the suit as an Attorney for and on behalf of its owner and that he was not objecting to the respondent seeking possession of the suit property. On this sole ground, it confirmed the decree of possession and dismissed the appeal.

The Supreme Court in the above regard observed, “Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.”

The Court further noted that the law is well settled that no right, title, or interest in immovable property can be conferred without a registered document. It also said that the embargo put on registration of documents would not override the statutory provision to confer title based on the unregistered documents with respect to immovable property.

“Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee. … The requirement of compulsory registration and its effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view”, said the Court.

The Court concluded that in case the respondent wanted to evict the appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession.

Accordingly, the Apex Court allowed the appeal, set aside the impugned judgment, and dismissed the suit.

Title Of Immovable Property Can't Be Transferred Through Sale Agreement Or General Power Of Attorney : Supreme Court

The Supreme Court recently held that no title could be transferred concerning immovable properties on the basis of an Agreement to Sell or based on
a General Power of Attorney. 

A bench of Justice Vikram Nath and Justice Rajesh Bindal observed as thus: 

“...no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882”

The bench also rejected the argument that the 2011 judgment in Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr- which held that title cannot be transferred through unregistered documents- applies only prospectively.

"Law is well settled that no right, title or interest in immovable property can be conferred without a registered document," the Court observed referring to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882. 

"The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments."

The appellant in this case was the defendant in a suit instituted by the respondent filed for possession and mesne profits with respect to a certain property. The suit was filed on the basis of a Power of Attorney, an agreement to sell, an affidavit and a will executed in favour of the respondent. 

The appellant was in possession of the property in question. The suit was contested citing that the appellant was the owner of the property since he received it as a gift from his brother, Laiq Ahmed. The appellant also contended that the suit was not maintainable since the documents on the basis of which the suit was filed were neither admissible nor enforceable under law.

The suit was decreed for possession and mesne profits in favour of the respondent. The appellant then approached the High Court, but his appeal was dismissed. 

Although the High Court in principle agreed to the argument regarding the unregistered document, it upheld the the decree of possession on the ground that the respondent had filed the suit as an Attorney for and on behalf of its owner Laiq Ahmed (brother of the appellant) and that Laiq Ahmed did not object to the respondent seeking possession of the suit property. On this ground alone, the High Court confirmed the decree of possession and dismissed the appeal. 

Subsequently, the appellant approached the Supreme Court. 

The Appellant argued that the Trial Court erred in decreeing the suit for possession and mesne profits on the basis of unregistered documents such as the Agreement to Sell, Power of Attorney, Affidavit and a Will. 

Law is well settled that no right, title or interest in immovable property can be conferred without a registered document, the Apex Court said. 

“The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee” the Apex Court observed. 

In this regard, the Court placed reliance on the recent judgments in Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar 2018) 7 SCC 639, Balram Singh Vs. Kelo Devi Civil Appeal No. 6733 of 2022 and M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra in SLP (C) No. 15774 of 2022. 

The Apex Court did not agree with the view taken by the High Court and allowed the appeal while dismissing the suit. 

“In case the respondent wanted to evict the appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in the impugned order” the Apex Court concluded.

High Courts, Session Courts Can Grant Interim/Transit Anticipatory Bail Even When FIR Is Registered In Another State: Supreme Court

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The Supreme Court Observed:

"...we hold that the Court of Session or the High Court, as the case may be, can exercise jurisdiction and entertain a plea for limited anticipatory bail even if the FIR has not been filed within its territorial jurisdiction and depending upon the facts and circumstances of the case, if the accused apprehending arrest makes out a case for grant of anticipatory bail but having regard to the fact that the FIR has not been registered within the territorial jurisdiction of the High Court or Court of Session, as the case may, at the least consider the case of the accused for grant of transit anticipatory bail which is an interim protection of limited duration till such accused approaches the competent Sessions Court or the High Court, as the case may be, for seeking full-fledged anticipatory bail".

Two issues had arisen before the court-

• Whether the power of the HC/Sessions to grant anticipatory under Section 438 of CrPC could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said court?
• Whether the practice of granting transit anticipatory bail or interim protection to enable an applicant seeking anticipatory bail to make an application under section 438 CrPC before a court of competent jurisdiction is consistent with the administration of criminal justice?

The Court began by going to the legal framework, judgments of HC, the evolution of safeguard of anticipatory bail. It quoted Gurbaksh Singh Sibbia v. State of Punjab, a Constitutional bench judgment where the Supreme Court speaking through CJI YV Chandrachud observed “ The society has a vital stake in preserving personal liberty as well as investigational powers of police and their their relative importance at any given time depends upon the complexion and restraints of political conditions. How best to balance these interests while determining the scope of Section 438 of the Code of Criminal Procedure, 1973 was the focus of the said case.”

Then, the court placed the question in the context of personal liberty and access to justice. It held that “we must also look at same from angle of personal liberty and access to justice. Art. 39A deals with- equal justice and free legal aid which can be considered to be a specie of Art 21 which deals with right to life and liberty.”

Delhi High Court Restrains Kerala Based Furniture Store From Using ‘IKEA’ Mark In Trademark Infringement Suit

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The Delhi High Court has restrained a Kerala-based furniture store “Ikea Luxury Furniture” from using the mark “Ikea” either as a trademark or trade name on hoardings, including stationery, banners, handbills, and promotional materials.  Justice Prathiba M Singh was dealing with a trademark infringement suit filed by multinational furniture company, Inter IKEA Systems BV. It sought the protection of its mark ‘IKEA’.

Ikea alleged that the defendant's furniture store was using the mark ‘IKEA’ in respect of various furniture items as also on inside hoardings in the shop and boxes of the products.  “It is clear from the reading of pleadings and documents that the mark.

Considering that the defendant was using the mark for identical goods and products range and targeted the same consumer segment, the court observed that it is a fit case for the grant of an ex-parte ad-interim injunction in favour of Ikea.  “Despite the legal notice being communicated, the Defendant has failed to stop the use of the mark ‘IKEA’. Accordingly, the Defendant shall stand restrained from using the mark.

Justice Singh added that Ikea is free to write to JustDial to take down the page of the Defendant with the name ‘IKEA Luxury Furniture’.