“Rejection of the plaint under Order 7, Rule 11 is a drastic power conferred in Court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7, Rule 11 therefore, are stringent and have been consistently held to be so by Court. It is the averments in […]
Read more "The Drastic Power of Rejecting a Plaint I"Senior Advocate, President of the Bar Association of the Highest Court of a Country, Dushyant Dave is said to have lent a willing ear to a rumor. The rumor is this: Judge of a High Court is being considered for an elevation to SC. Precious words have been used to describe how if this indeed […]
Read more "Judico Me Cremari"“It is settled law by a catena of decisions of this Court, Legislature cannot directly annul a Judgment of a Court. The legislative function consists in “making” law [See, Article 245 of the Constitution] and not in “declaring” what the law shall be [See, Article 141 of the Constitution]. If Legislature were at liberty to […]
Read more "The Nature of Judicial Power: Sir John Fenwick"My Lord, When and to what extent can stipulated liquidated damages for a breach of a contract be held to be in the nature of penalty in absence of evidence of actual loss? [Loss must be proved in all cases where the reasonable possibility exists of proof as considered by Hon’ble Justice R.F. Nariman in […]
Read more "The Law on Compensation for Breach of Contract II"The Hon’ble Supreme Court of India, while assessing whether an eye-witness could remember a face, seen seven and half years ago for ninety seconds only, relied on the pioneering work of Geoffrey R. Loftus. It had the following to say in Pargan Singh v. State of Punjab, 2014 (10) SCALE 229: “Scientific understanding of how memory works […]
Read more "The Remarkable Memory of Geoffrey R. Loftus"The Italian Marine Case has occupied the national consciousness in many ways. Diplomats are feeling the pressure! There are some other Italians too however who have been in the news. Francesco Montis arrived at Varanasi with Tomaso and Elsia on 31st January, 2010. They checked in at Hotel Buddha, Room No. 459. It was unimaginable […]
Read more "The Death of Francesco Montis"The expression ‘sting operation’ seems to have emerged from the title of a popular movie called “The Sting” which was screened sometime in the year 1973. The movie was based on a somewhat complicated plot hatched by two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed […]
Read more "The Sting Operator"Sir Salve and Sir Nariman argued on behalf of Sunil Bharti Mittal recently. It is to Mr. Harish Salve’s credit, his ‘neat submission‘ on ‘alter ego’ was accepted. A man is the alter ego of the company. Sir Salve submitted, “principle of alter ego has always been applied in reverse”. It is not the company that […]
Read more "Mr. Harish Salve’s Alter Ego"En passant is a move in chess. It refers to a pawn capture. The capture is so effortless, it is imagined to be ‘in passing‘. There is a pawn that is ‘passing‘ too, literally, when it is won. Hon’ble Judges of Supreme Court of India are not averse to ‘in passing‘ orations. In Richpal Singh v. […]
Read more "En Passant I"“Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by Court. In other cases, where […]
Read more "The Law on Compensation for Breach of Contract I"Mysteries all around! Here is a mnemonic: “Downloading the disturbing Mary Kate movie clip, Kate’s Grandfather let extraordinary gentlemen – Stephen & George – justify, steadily but surely, (their) no apparent reaction. Maybe Grandpa Neville (is) shocked by public lewdity.” 1 2 3 Here you Go! “Downloading The Disturbing Mary Kate Movie Clip, Kate’s Grandfather […]
Read more "Judges and Astrology I"Previously, the Government of India monopolized broadcasting. Hon’ble Justice P.B. Sawant in Cricket Association of West Bengal v. Union of India, (1995) 2 SCC 161 however wrote: “Broadcasting is a means of communication and, therefore, a medium of speech and expression. Hence in a democratic polity, neither any private individual, institution or organization nor any […]
Read more "Advertising Standards Council of India, Skin Whitening Products Category"In 1818, Abraham Thornton, acquitted on a charge of murdering Mary Ashford, on being rearrested, claimed a trial by combat. The prosecution stated that a law ought to become invalid if it was not used for centuries. The Court, however, had to “administer the law as they found it, and not as they wished it […]
Read more "Desuetude"Section 13(1)(iii) of The Hindu Marriage Act, 1955 does not make the mere existence of a mental-disorder, of any degree, sufficient in law to justify the dissolution of a marriage. Its degree must be such, the spouse seeking relief cannot reasonably be expected to live with the other. The same must be proved by positive […]
Read more "Schizophrenia"The Extradition Treaty between Republic of India and Republic of Mauritius was signed at New Delhi on 21.11.2003. The exchange of the Instrument of Ratification of the Treaty took place at Port Louis on 23.06.2008. On 19.04.1993, when Sanjay Dutt was returning after shooting for “Aatish” in Mauritius – there was no Treaty thus. It […]
Read more "To, Sanjay Dutt"It is rare for an Advocate to be directly appointed as a Judge of Hon’ble Supreme Court of India. It is even more rare, he/she shall become a Judge in a day. I am inclined to believe, Hon’ble Justice R.F. Nariman is still an Advocate in his heart. The manner in which he quotes precedents […]
Read more "A “Means and Includes” Definition I"A person is deemed to have committed an offence, within the meaning of Section 138 of The Negotiable Instruments Act, 1881 when any cheque drawn by him, on an account maintained by him with a banker, for payment of any amount of money to another person, in whole or partial discharge of a legally enforceable […]
Read more "A Legally Enforceable Debt I"Section 26 of The Competition Act, 2002 (“Act”) prescribes the “procedure for inquiry of complaints under Section 19”. If Competition Commission of India (“CCI”), on receipt of information received under Section 19, is of the opinion that there exists a prima facie case, it must direct the Director General (“DG”) to investigate. The DG, on receipt […]
Read more "Section 26 of The Competition Act"In Calcutta and its suburb Howrah, there have existed for many years precarious tenancies popularly known as Thika Tenancies. Under such Tenancy, vacant land was leased by the Landlord to a Tenant with liberty to erect structures thereupon of a temporary nature, which were referred to as “Kutcha Structures”. The structures would be owned by […]
Read more "The Evolution of Thika Tenancy"The omission to cite an authority of law is not a ground for review. It is Counsel’s error to have not brought to notice of Court, relevant precedents. Citing of authority, therefore, often offers problems to the Bar. There is sometimes the question of how many cases to cite. “Especially since, we have not yet […]
Read more "The Proverbial Chickens of Destiny"
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