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Source: Karnataka High Court

Why in News?

Justice M Nagaprasanna observed that an attesting witness of a sale deed cannot be held for cheating Section 420 of the Indian Penal Code, 1860 (IPC) if he was only attesting witness.

• The Karnataka High Court gave this observation in the case of Rajesh Totaganti v. State of Karnataka & Anr.

What is the Background of Rajesh Totaganti v. State of Karnataka & Anr Case?

• Respondent no. 2 filed a private complaint against three accused including the petitioner for cheating and several related offences.
• Petitioner approached the court as the chargesheet was filed against him.
• The petitioner was mentioned as a friend of another accused and an attesting witness of sale deed in question.

What were the Court’s Observations?

• Karnataka HC observed that a perusal at the sale deed would indicate that the petitioner is an attesting witness to the sale deed.
  • Except this allegation of the petitioner acting as an attesting witness and a friend of accused No.1, there is no other allegation against the petitioner that would touch upon any of the ingredients of cheating.

What is Cheating under Section 420 of Indian Penal Code, 1860 (IPC)?

• About:
  • Section 420 of IPC deals with cheating and dishonestly inducing delivery of property.
  • It is a more aggravated form of cheating where the dishonest intent is coupled with inducing the delivery of property.
  • This is a gender-neutral provision.
• Application:
  • This section applies when a person deceives another, leading them to deliver property or make changes to valuable securities based on that deception.
• Punishment:
  • The punishment for this offence is more severe, and it may extend to imprisonment for a term which may extend to seven years and shall also be liable to fine.
• Essentials:
  • Deceptive Intent:
    • The accused must have had a dishonest intention to deceive someone.
    • The element of mens rea, or a guilty mind, is crucial in establishing the criminal intent behind the act.
  • False Representation:
    • The offender must have made false representations or statements that led the victim to believe something that was true.
    • This could include false promises, misleading information, or any form of misrepresentation.
  • Inducement:
    • The false representation must have induced the victim to deliver property, whether it be money, goods, or any other valuable asset.
    • The act of inducing is a critical link connecting the deceptive intent to the actual harm suffered by the victim.
  • Delivery of Property:
    • The victim must have delivered their property as a consequence of the deception.
    • The act of delivering property completes the offence under Section 420.

Source: Kerala High Court

Why in News?

The Kerala High Court (HC), while dismissing a rent control revision petition, affirmed that seeking legal advice after the expiry of limitation period cannot be considered a valid reason for extending the deadline to file an appeal in the matter of Mallika v. Sree Mutharamman Temple Trust, Nedumangad.

What is the Background of the Mallika v. Sree Mutharamman Temple Trust, Nedumangad Case?

• The petitioner (Mallika) in the first rent control petition was a tenant and challenged the title of the landlord in an eviction petition.
  • The petition was disposed of by the court owing to lack of bonafide intention.
  • The petitioner failed to prefer an appeal on time and filed the appeal only after receiving subsequent legal advice.
• Thereafter, the landlord instituted another proceeding in the Rent Control Court for eviction of petitioner in which the petitioner again challenged the title of the landlord.
  • The same was dismissed as barred by res judicata.
  • The petitioner challenged the said order to the Appellate Authority and the same was dismissed.
  • The petitioner further preferred an appeal to the above-mentioned order.
    • There was a delay of 1160 days in filing the said appeal and the petitioner has therefore preferred an application to condone the said delay.
    • The only reason stated by the petitioner in the affidavit filed in support of the application to condone the delay was that the counsel who appeared on her behalf advised her to prefer an appeal against the order at such time.
    • Appellate Authority refused to condone the delay.
• The petitioner thus preferred this petition before the HC.

What were the Court’s Observations?

• Justice P.B. Suresh Kumar and Justice P.G. Ajithkumar observed that if delay was condoned based on subsequent legal advice received by a party, then that would defeat the purpose of Limitation Act.
• The court further stated “Subsequent legal advice cannot be accepted as a cause, much less any sufficient cause, to condone the delay in instituting a proceedings in terms of Section 5 of the Limitation Act, for if the subsequent legal advice is accepted as the cause to condone the delay in instituting a proceedings, the same would defeat the very object of the Limitation Act, viz, that every remedy should remain alive only till the expiry of the period fixed by the legislature which is a principle founded on public policy.”

What is the Legal Provision of Limitation Act, 1963 Involved?

• The Act is based upon following principles:
  • Interest republicae ut sit finis litium - In the interest of public, litigation must come to an end.
  • Vigilantibus non dormentibus jura subveninet - The court protects those who are vigilant about their rights.
• The concept of condonation of delay is mentioned under Section 5 of the Act.
  • Section 5 - Extension of prescribed period in certain cases - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
    • Explanation - The fact that the appellant or the applicant was missed by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
• The Court can condone the delay if it is satisfied that there existed sufficient cause.
  • Recently, the Supreme Court (SC) in Sabarmati Gas Limited v. Shah Alloys Limited (2023) defined sufficient cause as cause for which a party could not be blamed.
• Sufficient Cause may include:
  • Illness: It can only be a sufficient cause where the person becomes completely incapacitated to attend any duty.
    • For Example - An accident in which a person is severely injured will be considered a sufficient cause whereas illness owing to normal flu cannot be considered as a sufficient cause.
  • Natural Calamities: If a flood, earthquake, or other natural disaster prevented someone from filing their case within the statutory limitation period, this could be considered sufficient cause.
  • Mistake of Counsel: The advice per se is not under the ambit of sufficient but in Mohanlal v. Tejsingh Thakur (1958) Madhya Pradesh HC held that where advice is given on account of good faith and there is no negligence or lack of reasonable skill on part of the counsel, it can be considered a sufficient cause.
  • Mistake of Fact: In Birbal v. Hiralal (1953), Punjab and Haryana HC held that bonafide mistake of fact on part of the party or his agent will be considered as sufficient cause.
  • Mistake of Law: It is generally not considered as a sufficient cause but the existence of conflicting decisions that have led to confusion for the party filing the appeal can be considered a valid reason for seeking an extension to condone the delay.
  • Non-Receipt of Legal Notices: If the person did not receive legal notices or important documents related to the case until after the limitation period had expired, this might be considered sufficient cause.

Source: Calcutta High Court (AP/863/2022)

Why in News?

Justice Moushumi Bhattacharya observed that a party who seeks urgent intervention of the court cannot be strung to the rigidness of any statute.

• The Calcutta High Court gave this observation in the case of AMR JV v. Orissa Steel Expressway Private Limited.

What is the Background of AMR JV v. Orissa Steel Expressway Private Limited Case?

• The application of petitioner was presented under Section 9(1) of Arbitration & Conciliation Act, 1996 (A&C) for interim protection and appointment of arbitrator.
• The petitioner contended that there was a contract with respondent where they performed their part however the respondent made a fundamental breach of terms of the contract.
• And due to the act of respondent, the petitioner faced loss.
• There was already an arbitral proceeding going on where the respondent had been awarded a sum of approx. Rs 322 crores.
• The petitioner presented this application for claim of unpaid dues against the respondents that was of approx. Rs 76 crores, and hence prayed for an interim restraint on the respondent to withdraw the amount that he was awarded in prior arbitral proceedings.

What were the Court’s Observations?

• Calcutta HC observed that if the court drags the feet of the petitioner, the respondent may well deport and decamp with what was intended to be preserved.
• This would be regressive to the whole purpose of timely, effective and focused interim relief under section 9(1) of the A&C Act.

What is an Interim Protection under Section 9(1) A&C Act?

• About:
  • Section 9 empowers the court to grant interim relief during the arbitral proceedings or at any time after the making of the arbitral award but before it is enforced.
• Objective:
  • This is to ensure that the effectiveness of the arbitration process is not undermined, and the purpose of the arbitration is not frustrated.
  • Under Section 9, a party can approach a court to seek interim measures such as injunctions, preservation of property, or any other necessary orders to safeguard their rights or assets.
  • The court has the authority to grant such interim measures, taking into consideration the urgency and the nature of the dispute.
  • This provision not only enhances the efficacy of the arbitral process but also provides a safety net for parties who might face irreparable harm if immediate relief is not granted.
• Time-Limit:
  • Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.

Which Legal Provision is Involved in this Case?

Section 9(1) of the Arbitration & Conciliation, 1996: Interim measures etc. by court—

The party may apply for

• (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
• (ii) for an interim measure of protection in respect of any of the following matters, namely: —
  • (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
  • (b) securing the amount in dispute in the arbitration;
  • (c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
  • (d) interim injunction or the appointment of a receiver;
  • (e) such other interim measure of protection as may appear to the Court to be just and convenient.