by Shivendra Pratap Singh | Mar 20, 2025 | Civil Matter
Challenge notice issued under Section 13 of SARFAESI Act in the civil court. The bank has filed an objection under order 7 rule 11 of code of civil procedure for rejection of plaint. The bank says that the subject matter is beyond the jurisdiction of the civil court. As per the legal advice, if the amount of borrowed money is less than ten lakh the civil court has the jurisdiction and beyond ten lakh the debt recovery tribunal has the jurisdiction. In those circumstances I filed a civil suit in the civil court. Bank has issued that notice and demanded to deposit the entire loan amount and outstanding amount. Whereas the interest is more than that mentioned in the loan agreement. The bank is extorting money by levying higher interest rates on the borrowed money. It is a violation of contract hence, I filed a civil suit to stay the proceedings and direct the bank to settle the outstanding as the rate of interest mentioned in the loan agreement.
Asked from: Uttar Pradesh
To some extent, your advocate is correct, but your case does not fall under the original jurisdiction of the DRT. You want to challenge the validity of the notice or the action initiated by the bank under Section 13(4) of the SARFAESI Act. This matter does not relate to the original jurisdiction of the DRT; it falls under the appellate jurisdiction. According to Section 17 of the RDB Act (Recovery of Debt and Bankruptcy Act, 1993), a person aggrieved by any measures referred to in Section 13(4) taken by a secured creditor can make an application to the DRT.
Therefore, the tribunal has the jurisdiction to entertain your application irrespective of the loan amount. Thus, the borrower has a remedy to challenge the validity of the notice issued under Section 13 by filing a Securitization Application (SA) in the DRT. Section 18 of the RDB Act prohibits the civil court from entertaining any suit regarding the action taken by a secured creditor under Section 13 of the SARFAESI Act. The tribunal has exclusive jurisdiction in this matter.
According to Section 1(4) of the RDB Act, the provisions of this Act shall not apply where the amount of debt due to any bank or financial institution, or a consortium of banks or financial institutions, is less than ten lakh rupees. However, this restriction only applies to the original jurisdiction. Challenging the validity of the notice under Section 13(4) does not fall under the original jurisdiction of the DRT.
Challenging notice issued under Section 13 of SARFAESI Act is subject matter to debt recovery tribunal instead of the civil court. In the prevailing circumstances, the application filed by the bank under Order VII, Rule 11 of the Code of Civil Procedure is absolutely correct.
by Shivendra Pratap Singh | Mar 18, 2025 | Service Matters
Fifty percent gratuity has been withheld by the disciplinary authority. A departmental proceeding was initiated after my retirement. At the time of retirement, payment of gratuity was stopped due to a complaint filed against a few officers. On that complaint no proceeding was initiated when I was in service. After my retirement an inquiry officer was appointed. He submitted a report to the disciplinary authority thereafter, charges were framed and a charge sheet was served to the delinquent officers. Except me, all other officers are in service. The inquiry culminated in a punishment. I have been awarded punishment in the form of fifty percent gratuity and has been withheld and sixteen lakh rupees has been recovered from my pension. I have not been receiving pension after the passing of the punishment order.
Asked from: Uttar Pradesh
In the present circumstances, the entire disciplinary proceeding against you is illegal because the Governor's sanction was not obtained. These disciplinary proceedings were initiated after your retirement, and you were not under suspension at the time of retirement.
According to Article 351A of the Uttar Pradesh Civil Service Regulations, if disciplinary proceedings are initiated against a retired officer, sanction from the Governor is mandatory. Only the Governor has the authority to withhold pension and other retirement benefits. It is important to note that a departmental proceeding is considered initiated when a charge sheet has been served upon the concerned officer. It is an admitted fact that the charge sheet was served upon you after retirement.
The right to receive a pension was recognized as a right to property by the Constitution Bench judgment of Supreme Court in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330]. In State of Jharkhand vs Jitendra Kumar Srivastava [(2013) 12 SCC 210], the Supreme Court held that pension and gratuity are not a bounty but the property of the employee, earned during their service, and shall not be withheld except according to the procedure established by law.
In Y. K. Singla vs Punjab National Bank (2013) 3 SCC 472, the Supreme Court held that interest at 8% per annum shall be paid on the amount of gratuity from the date of the employee's retirement.
Therefore, you should file a writ petition in the High Court under Article 226 of the Constitution of India to quash the final order of the disciplinary authority that led to the withholding of fifty percent of your gratuity and the initiation of the recovery of sixteen lakh rupees from your pension. You are also entitled to receive all outstanding retirement dues with interest.
Also read: Transfer order under political influence
by Shivendra Pratap Singh | Mar 11, 2025 | Criminal Matter
Compromise in cheque bounce case after conviction is possible or not. I am accused in a complaint case under Section 138 of the Negotiable Instrument Act. The complainant is my relative and the matter is related to the supply of a disposal making machine including a dryer. When the cheque was issued total liability was around five lakh. Since the complainant is my cousin, I took time to pay that amount. Meanwhile some misunderstanding crept between us and he presented that cheque for encashment. When the cheque was bounced he lodged a complaint against me. Now the court has convicted me for the imprisonment of one year. After conviction I filed an appeal, but during this period some friends and relatives came and compromised the dispute. Now I want to know whether the parties can compromise the cheque bounce case after the conviction.
Asked from: Uttar Pradesh
Section 147 of the Negotiable Instruments Act makes every offence under the Act compoundable. This section does not impose any restrictions on the stage at which compounding can take place or whether it requires the complainant's initiation or the court's permission.
As a result, the court is empowered to compound the case based on a compromise reached between the parties, even at the appellate stage. In O.P. Dholakia v. State of Haryana (2000) 1 SCC 762, the Supreme Court held that the compounding of an offence at a later stage of proceedings is permissible. Therefore, the Negotiable Instruments Act does not prevent the court from compounding an offence at the appellate stage.
When the parties have resolved their dispute through a compromise and the complainant or aggrieved person no longer wishes to prosecute the accused, the court can compound the case and acquit the accused of all charges. However, in Damodar S. Prabhu v. Babulal (2010) 5 SCC 663, the Supreme Court directed that an appellate court may impose a cost on the accused if he opts for a compromise at a later stage of the proceedings. Specifically, at the appellate stage, the accused must pay 15% of the cheque amount before compounding the offence. Thus, while the court may impose a cost, the compromise and compounding of the offence can still be effectuated at the appellate stage.
Related advice in criminal law:
by Shivendra Pratap Singh | Mar 6, 2025 | Service Matters
High court directed to go for arbitration. The high court has dismissed my writ petition and directed me to go for arbitration for redressal of dispute. I am a project manager in the public works department, and it is a contractual job. Some rules have been framed by the department for payments on the basis of the nature of the job. Whenever a project manager is deployed in the field she is entitled for special wages.
I was deployed in the field for nine months and also have an additional charge of another project. I wrote several letters to the concerned authority to enhance my remuneration but not enhanced. However, in the work agreement it has been mentioned that any dispute regarding salary, increment etc shall be referred to the arbitrator. When I got no response from the department, I filed a writ petition. But that writ petition has been dismissed by the high court. I am in dilemma after judgment of the high court.
Asked from: Haryana
The terms and conditions for contractual employees specifically provide for the resolution of disputes through arbitration. The Arbitration and Conciliation Act, 1996, is applicable in your case. Therefore, any dispute regarding wages shall be decided by an arbitrator. In light of the prevailing work agreement, the High Court cannot entertain your writ petition at this stage.
You have the option to invoke the provisions of the Arbitration and Conciliation Act and refer the matter to arbitration. If the work agreement designates an officer as an ex officio arbitrator, the dispute shall be referred to that officer. Otherwise, an arbitrator shall be appointed by mutual consent of both parties. Proceedings before the arbitrator are summary in nature, and strict rules of procedure and evidence do not apply. As a result, the arbitral award is typically issued within a short period.
If you are aggrieved by the arbitral award, you may file a writ petition. The High Court may quash the award if it finds irregularities or violations of the principles of natural justice, among other concerns.
Related advice in service matters:
by Shivendra Pratap Singh | Mar 5, 2025 | Service Matters
Disciplinary authority has appointed second enquiry officer and rejected the report filed by the first enquiry officer. The disciplinary authority is not happy with the report submitted by the enquiry officer. Then the authority appointed another officer with the sole intention to hold me guilty. The current enquiry officer is taking favour of disciplinary authority. The proceeding is conducted under Central Civil Services (Classification, Control and Appeal) Rule 1965. The enquiry officer is compelling the witnesses to falsely implicate me. However, no documentary evidence is available to show that I have been involved in the commission of the alleged offence. The department has filed a first information report against three officers. Due to lack of evidence I am not named in that FIR. Whereas, disciplinary authority is willing to array me in that proceedings.
Asked from: Haryana
More than one inquiry is not permissible under Rule 15 of the Central Civil Services (Classification, Control, and Appeal) Rules, 1965. However, in exceptional circumstances, the disciplinary authority may direct a further inquiry by the same inquiry officer if a serious defect is found in the enquiry report.
The hon'ble Supreme Court has held in K. R. Deb vs CCE (1971) 2 SCC 102 that there can be only one enquiry. The mere non-acceptance of the inquiry officer's report by the disciplinary authority is not a valid ground for setting aside the inquiry report entirely and ordering a second inquiry.
In this situation, you should challenge the order appointing a second inquiry officer and the initiation of a second inquiry in the same matter. File an original application before the Central Administrative Tribunal, as the subsequent inquiry violates Rule 15 of the CCS Rules, 1965. Regarding the partiality of the second inquiry officer, there is no need to challenge it at this stage, as the appointment of the second inquiry officer itself is inherently illegal. The CAT may set aside the order of appointment of the second enquiry officer.
Also read: Disciplinary authority is not taking final decision of enquiry report
by Shivendra Pratap Singh | Mar 5, 2025 | Service Matters
Disciplinary authority is not taking action on enquiry report in the last five months. An enquiry was initiated by the disciplinary authority on receiving an anonymous complaint. The said complaint was false and frivolous because the facts stated in that complaint were not related to my nature of job. I am an accountant and my job is to sanction bills and other finance related files after receiving recommendations from the tender and accounts department. there was a system to finalise the bill before sending it to my office for sanction. Two superior officers, one from the tender department and another from the accounts section clears the bill and sends it to my office through a special messenger and marking on the bill. My department has no relation in inviting tender and clearing final bills. The allegation was unrelated to the sanctioning of the bill. it was related to inviting tender. that enquiry officer has exonerated me therefore, the disciplinary authority is not taking any action. My promotion is affected because it has been sealed cover. Please suggest proper legal action.
Asked from: Uttarakhand
You should promptly file a writ petition in the High Court under Article 226 of the Constitution of India, seeking a writ of mandamus against the disciplinary authority. The petition should request the court to direct the disciplinary authority to issue a final decision on the inquiry report within a specified timeframe. If the disciplinary authority fails to comply with the High Court's directive, you may file a contempt application against them for non-compliance.
Disciplinary authority is bound to take final action on the outcome of enquiry report as early as possible. Causing inordinate delay in conclusion of departmental proceedings is violation of the fundamental right. Fair and speedy justice is a fundamental right under Article 21 of the constitution. Principle of speedy justice is also applicable on quasi-judicial proceedings. Departmental enquiry is a form of quasi-judicial proceeding. Hence, you should file a writ petition for commanding the authority to pass its decision as soon as possible preferably in a stipulated period of time.
Also read: Disproportionate punishment
by Shivendra Pratap Singh | Feb 25, 2025 | Family Dispute
Whether khula without the consent of the husband is valid in our country or not. My husband is living in the United States of America and does not want to give me divorce. I want to marry another guy who is working in my office in India. My husband neither wants to live with me nor pronounce talaq. He has only one intention to ruin my life by dragging me in marital status. In this situation my life became miserable. I am a childless mother and no one is here to help me. My boyfriend suggested I should take khula from mufti. Then I contacted a mufti who passed a fatwa of khula without the consent of my husband. Can I marry that guy after getting the fatwa? I tried to convince my husband to talk to the mufti ji and give his consent but he refused. He denied his consent and was also not ready to sign the fatwa. I have decided to marry that guy after the fatwa because my husband has made my life miserable.
Asked from: Andhra Pradesh
The consent of the husband is mandatory for khula because in this kind of divorce the wife gives a proposal for dissolution of marriage in return of something. The husband has the option to either accept or refuse that proposal. If the husband accepts that proposal the khula becomes effective.
If the husband's consent has not been received while passing fatwa of khula by the mufti, that fatwa is void. You are a legally wedded wife because your marriage is still subsisting.
If you marry in the prevailing situation, the marriage will be void and you may be prosecuted for the offence of bigamy. Therefore, you must not proceed further on the basis of the fatwa of khula. That fatwa is not a valid legal document.
It appears from the facts of your case that your marriage cannot be dissolved by mutual consent. In this situation you should consult with the Kazi for passing a judgment of khula after issuing notice to the husband. When the husband appears and gives his consent the Kazi will dissolve your marriage by passing a judgment of khula. That judgment (Kaza) will be a valid legal document for dissolution of marriage. Thereafter, you can marry that person.
Also read: Party cannot treat decree as void
by Shivendra Pratap Singh | Feb 24, 2025 | Family Dispute
Can the party treat decree as void if there is gross violation in passing of such a decree. I am a doctor employed in a central government instrumentality. I fell in love with a medical representative, finally we decided to marry. After three years of marriage, we sought divorce by mutual consent. After obtaining decree of divorce, we were living apart for few months but later we have been living together. Now we have decided to get a child. There is no problem between us and decree was sought just after the objection raised by the husband's family. I belong to SC category and my husband belongs to General category. He wanted to settle the dispute with his family, so we filed divorce petition. Now we are living in a live-in relationship. For our point of view that decree is void because we love each other and carried on our marital relationship even after the decree of divorce. My husband says that our divorce is not effective because we are living as a spouse. But I want to know whether the party can treat decree as void if it was obtained by the collusion of the parties.
Asked from: Tamil Nadu
A decree passed by a competent court, even if it is void in law, remains valid unless and until it is set aside by a competent court. A void or voidable order is generally not considered non est (nonexistent) because the court did not err in its jurisdiction when passing the decree. In M. Meenakshi v. Metadin Agarwal, (2006) 7 SCC 470, the Supreme Court has held that:
It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another.
The same principle was reiterated by the Supreme Court in Sultan Sadik v. Sanjay Raj Subba, (2004) 2 SCC 377, where it was declared that a void decree must be formally declared void by a competent court.
From these rulings, it is clear that even if a decree is void ab initio (from the beginning), the aggrieved party must obtain a declaration to that effect from a competent court. Such a declaration cannot be sought in collateral proceedings.
The court is not obligated to grant a decree of divorce merely because a suit for mutual consent divorce has been jointly filed by the spouses. In such cases, the court must be satisfied that mutual consent exists between the parties, based on tangible evidence that clearly demonstrates such consent. (See Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234).
You cannot widraw your consent after getting decree of divorce. That decree is binding upon you because you have proved that you both are agreed to live separately. Since you have been living together after that decree, your conduct will not automatically render that decree void.
In these situations, you have to set aside that decree by a competent court. It is settled principle of law that parties to the suit cannot treat divorce decree as ineffective if they continue to live together as husband and wife.
Hence, party cannot treat decree as void. In these circumstances you have to file an appeal for setting aside that decree because there was no free consent of wife and both parties have been living together after passing of divorce decree.
Also read: Impotency a ground of divorce
by Shivendra Pratap Singh | Feb 15, 2025 | Criminal Matter
Court acquitted the accused on medical examination report of doctor and did not look the other evidence. An offence committed when my brother was going to market. When he reached at Kapur Marg someone pushed him. Thereafter, altercation started between my brother and that person. At the same time few other people assembled near the place and threaten my brother. Somehow the quarrel stopped, and my brother returned to home. Few days after he came to know that it was a conspiracy of XXX. There was a dispute between my brother and XXX. My brother wanted to buy a land which was later on purchased by XXX. One day when my brother was stayed in his friend's home, XXX came through the terrace and assaulted my brother. FIR was lodged and XXX arrested. At the stage of trial, prosecution produced the medical opinion of doctor. Who says that injuries on the body of XXX was two days old. Whereas my brother had lodged FIR within one hour of incident and accused had been arrested within seven hours of lodging FIR. The neighbours and servant of his friend also stated that XXX was present and assulted the complainant. They told that accused was coming out of that home. The trial court acquitted the accused only on the basis of medical examination report that injuries are two days old. Please suggest is there any possibility in appeal.
Asked from: Uttar Pradesh
I believe that the neighbors were made prosecution witnesses in your case. If those witnesses testified that they saw the accused coming out of the home, and the friend's servant, who was also present in the home, deposed that the accused came from the terrace and assaulted the complainant, then the eyewitnesses are establishing the prosecution's case. In such a scenario, the expert's opinion becomes immaterial. It is a settled principle of law that the court is not bound by the opinion of an expert.
The trial court has disregarded the statements of the eyewitnesses, whose evidence is crucial to the case. The prosecution has fulfilled its burden of proof once the offense is established through the testimony of eyewitnesses. The injuries sustained by the accused are irrelevant if there is no allegation that the complainant also inflicted injuries on the accused during the altercation.
The primary allegations are housebreaking and assault. If the evidence proves that the accused committed housebreaking and assaulted the complainant, there is no need to place emphasis on the accused's injuries. In Ghure Lal vs State of U.P. (2008) 10 SCC 450, the Supreme Court held that
A judgment of acquittal may only be reversed or otherwise disturbed for very substantial and compelling reasons. Such reasons exist when the trial court has ignored evidence, misread material evidence, or overlooked crucial documents.
In your case, the trial court has ignored the evidence of the eyewitnesses, which is vital to establishing the guilt of the accused. There is no justification for basing the judgment on the injuries sustained by the accused if there is no allegation of assault by the victim. The offense of housebreaking is fully established by the testimony of the servant and the neighbors. Therefore, there is a strong possibility that the appellate court may reverse the judgment of acquittal. I advise you to file an appeal as soon as possible.
Also read: Falsely implicated in the offence under Section 149 IPC
by Shivendra Pratap Singh | Feb 12, 2025 | Service Matters
Whether an educational institute is an industry or not. Can a clerk of an inter college file a case in labour court? I was working as a clerk in Inter College. A false allegation was made against me while I was incharge of an internal examination. The management and the principal of that college without serving a show cause notice arbitrarily terminated me from the job. I filed an application under the right to information act for taking information about the departmental enquiry initiated against me before termination from the service. In that application no information is provided by the public information officer of the intermediate college. Then I filed an appeal which is still pending. Meanwhile I filed a case in the labour court against the order of termination of my service. When the notice was served upon the principal he filed an objection that the court is not competent to admit my case because the educational institute does not fall under the definition of industry. The labour court has fixed a date for hearing on the maintainability of the case. Whether an educational institute is an industry under the Industrial Dispute Act.
Asked from: Uttar Pradesh
Non-teaching staff of educational institutions are considered workmen and fall under the jurisdiction of the Industrial Dispute Act. There is no dispute regarding the authority of the labor court in matters pertaining to workmen. Consequently, the provisions of the Industrial Dispute Act can be invoked for the redressal of grievances of workmen, as the labor court has jurisdiction over such matters.
In the case of Principal, Amar Shaheed Inter College v. Presiding Officer, Labour Court, 2005 SCC OnLine All 215, the Allahabad High Court held that
Though teachers may not qualify as workmen, other categories of employees such as clerks, sweepers, peons, and chaukidars undoubtedly fall within the definition of "workman" as outlined under the Uttar Pradesh Industrial Disputes Act, 1947.
Therefore, the objection raised by the opposing party is without merit. Your case has been filed before the appropriate court, which possesses the jurisdiction to adjudicate the dispute between the parties.
Also read: Whether giving reason for punishment is mandatory?
