Corporate Law : CONTRACT OF GUARANTEE - SCHEME OF CONTRACT ACT,1872 1(a) It is submitted that Sections 133, 134, 135, 139, 140,141 and 145 of the...
Corporate Law : 1. It is submitted that the recovery proceedings against the Guarantor before hon’ble Debts Recovery Tribunal (hereinafter ‘DR...
Corporate Law : The jurisdiction of the Civil Court to entertain, try and decide any suit or proceeding in respect of the property, which is the s...
Corporate Law : Section 34 of the RDB Act provides that the said Act would have overriding effect. We have referred to the aforesaid provisions to...
Corporate Law : The author has first hand knowledge and experience that a large majority of projects fail, firstly, due to inexcusable delay in sa...
Corporate Law : Recently, hon’ble Supreme Court in Gangadhara Palo Vs The Revenue Divisional Officer & Another {(2011) 4 SCC 602; Decided on 08....
Section 34 of the DRT Act, 1993 (short for ‘Recovery Of Debts Due To Banks and Financial Institutions Act, 1993’) provides that “the Act to have overriding effect”. Similarly, Section 35 of the Securitisation Act, 2002 (short for ‘The Securitisation and Reconstruction Of Financial Assets and Enforcement Of Security Interest Act, 2002’) provides that “the provisions of this Act to override other laws”. However, on the contrary, Section 37 of the Securitisation Act, 2002 provides that “the application of other laws not barred”. Now, let us consider in detail as to how and when does the “overriding effect” operate.
Kindly give opinion whether the jurisdiction of civil court is not excluded and the DRT does not have power to decide tenancy and ownership issues? (This has become necessary to convince the Civil Court, before whom a suit is to be filed by the Owner of a Property, whose assets have been attached and auctioned, treating that tenant (borrower) is holding ownership/transferable tenancy rights)
Not considering the Law laid down by Supreme Court will amount to an error apparent on face of record [2004(2) MPLJ 492 (498 para 10)] and is a ground for Review. The term ‘Sufficient reason’ is wide enough to include a misconception of fact or law by a court [AIR 2005 Supreme Court 592 (605-para 88-90)]. The objective of Review is to do away with quickly the Injustice which may be necessitated by way of invoking the doctrine “actus curie neminem gravabit’
It is settled law that, matters involving moral questions or questions of public law are not resolved by arbitration. For instance, the following matters are not referred to arbitration: * Matrimonial matters, like divorce or maintenance; * Insolvency matters, like declaring a person as an insolvent; * Criminal offences; * Dissolution or winding up of a company.
Sec 2 (j) of the Industrial Disputes Act has defined the term industry means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not, –
The Bombay High Court in Road Transport Corpn Vs. Kirloskar Bros Ltd (AIR 1981 Bom 299) has said that it is for the carrier to plead and prove that the print on the receipt was brought to the notice of the consignor and that he had agreed to and accepted the same. The Court held that it is necessary that serious terms of a contract must be specifically brought to the notice of the parties whose rights are sought to be curtailed. In Oriental Fire and General Ins Co Vs. New Suraj Transport Co (AIR 1985 All 136) the consignment note was not even signed by the booking party or his agent, the Allahabad High Court held that the consignor was not bound by a printed term about the exclusive jurisdiction. THE COURT SAID THAT SOMETHING MORE MUST BE DONE THAN MERELY PRINTING THE TERMS ON CONSIGNMENT DOCUMENTS.
A division bench of Delhi High Court in J B Exports Ltd and another vs. BSES Rajdhani Power Ltd (2006 134 Comp cas 106 Del. decided on 3.3.2006) observed that the concept that a company is a distinct legal entity apart from its shareholders, vide Salomon vs. Salomon & Co. (1897 AC 22 HL) had a historical purpose. Its main purpose was to encourage entrepreneurs to start new business ventures and, thus, help in the process of industrialisation.” This background is so important that it merits consideration in detail as follows.
Purpose of Arbitration Act-The purpose of Arbitration and Conciliation Act, 1996 (‘the Act’) is to provide quick redressal to commercial dispute by private Arbitration. Quick decision of any commercial dispute is necessary for smooth functioning of business and industry. Internationally, it is accepted that normally commercial disputes should be solved through arbitration and not through normal judicial system. An arbitrator is basically a private judge appointed with consent of both the parties. He is expected to give his decisions quickly as he is not bound by the technical formalities of a court. In India, the need of arbitration is more because of very heavy burden on the judicial system and huge backlog of pending cases.
Hon’ble Supreme Court in Mohd.Akram Ansari Vs. Chief Election Officer & Ors , observed that it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with. Para 14 of the judgment is reproduced below for ready reference.
Under Securitisation Act, if the secured creditor is acting in violation of the rights, duties and obligations, the mortgagor can come to the Civil Court before sale with a civil suit for injunction for staying the sale. In Mardia Chemicals Ltd.. Vs U.O.I. & Ors.
