Legal World By Shivanshu Katare

  Dishonour of Cheques — Overview A cheque is a negotiable instrument. When someone issues a cheque to pay a debt or other liability and that cheque is returned unpaid by the bank, the law provides both  civil  remedies (money recovery) and  criminal  consequences (punishment under Section 138 NI Act) for the drawer in appropriate cases. The NI Act transformed certain cheque dishonours from only a civil matter into a penal offence to protect the credibility of cheque transactions. Key statutory tools to look at are  Section 138  (the penal provision for dishonour) and  Section 139  (statutory presumption in favour of the holder). For reference, the official Act text is available on IndiaCode. ( India Code ) Essential statutory ingredients (what must be proved for Section 138) Section 138 creates criminal liability when a cheque is dishonoured for certain bank endorsements and the statutory procedure is followed. In short, the main ingredients...

1. Restitution – Section 144 CPC Concept Based on the maxim: Actus Curiae Neminem Gravabit (an act of court shall prejudice no one). Ensures that a party is restored to the position they would have occupied but for the decree/order which is later varied, reversed, or set aside. Essential Conditions A decree/order must have been varied, reversed, or set aside . The party must have suffered loss due to such decree/order . Restitution must be consequential and necessary . Scope Includes refund of money, mesne profits, interest, costs . Applies even to execution proceedings . Nature Statutory recognition of equitable principle. Mandatory when conditions are satisfied. Key Case Laws Binayak Swain v. Ramesh Chandra Panigrahi → Restitution is not discretionary; court must restore parties to original position. South Eastern Coalfields Ltd. v. State of M.P. → Doctrine of restitution applies even in interim orders; unjust enrichment must be prevented. 2. Caveat – Section 148A CPC Concept A pr...

APPEALS UNDER CPC (Sections 96–112) 1. APPEALS FROM ORIGINAL DECREES (Section 96) Section 96(1): Right to First Appeal Appeal lies from every decree passed by a court exercising original jurisdiction Lies to the court authorized to hear appeals Right to appeal is statutory, not inherent Scope: Covers questions of fact and law Entire case can be reheard Case: Santosh Hazari v. Purushottam Tiwari (2001) Facts: First appellate court reversed the trial court without adequate reasoning Held: First appeal is a valuable right; appellate court must re-appreciate evidence and give reasoned findings Ratio: First appeal amounts to rehearing on facts and law Section 96(2): Ex parte Decree Appeal lies from an ex parte decree Alternative remedy: Application under Order 9 Rule 13 Section 96(3): Consent Decree No appeal lies from a consent decree Exception: If consent obtained by fraud, misrepresentation, or coercion Section 96(4): Small Cause Nature Suits No appeal except on a question of law Applica...

Sections 5–8F of the Indian Stamp Act Section 5 – Instruments relating to several distinct matters ➤ Where a single instrument deals with multiple distinct matters ⇒ It shall be charged with aggregate stamp duty of all such matters ➤ In effect ⇒ Treated as separate instruments merged into one Section 6 – Instruments falling under multiple descriptions ➤ If an instrument falls under two or more categories in Schedule I ⇒ Chargeable with only the highest duty ➤ Proviso: ⇒ Duplicate / counterpart instruments → Maximum duty = ₹1 (if original is duly stamped) Section 7 – Policies of Sea Insurance ➤ Where policy covers: → Voyage + Time (beyond 30 days after arrival) ⇒ Duty payable as: → Policy for voyage Policy for time ➤ Result ⇒ Dual stamp duty in such composite cases Section 8 – Bonds, Debentures & Securities (Local Authority Loans) ➤ Loan raised by local authority through securities ⇒ Duty = 1% of total value ➤ Key Features: → No requirement of individual stamping → No further du...

INTERLOCUTORY ORDERS (ORDER 39 RULES 6–10 CPC) Meaning of Interlocutory Orders Interlocutory orders are interim orders passed during the pendency of a suit to: preserve the subject matter prevent injustice or irreparable loss assist the court in effective adjudication They are ancillary or supplementary orders and do not finally determine the rights of parties. Rule 6 – Power to Order Interim Sale Statutory Provision Under Order XXXIX Rule 6 , the Court may order sale of movable property : which is the subject matter of the suit , or which is attached before judgment , if: the property is perishable , or subject to speedy and natural decay , or for any just and sufficient cause , immediate sale is desirable. Purpose and Scope The object of Rule 6 is to: prevent loss of value of property avoid wastage or deterioration protect the interest of both parties The Court has discretion to determine: manner of sale person conducting sale terms and conditions Case Law Navalkha & Sons v. Ra...

  ORDER XXXIX – TEMPORARY INJUNCTIONS  (Under the Code of Civil Procedure, 1908) Meaning and Nature of Temporary Injunction A temporary injunction is an interim order issued by a court restraining a party from performing a particular act until the disposal of the suit or until further orders of the court. The purpose of a temporary injunction is to preserve the status quo and prevent irreparable injury to the parties during the pendency of litigation . Temporary injunctions are governed by Order XXXIX Rules 1–5 of the CPC . They are discretionary remedies granted by courts based on equitable principles. Rule 1 – Cases in Which Temporary Injunction May Be Granted Under Order XXXIX Rule 1 , the court may grant a temporary injunction when it is proved by affidavit or otherwise that: (a) Property in dispute is in danger If property in dispute in a suit is in danger of: being wasted being damaged being alienated being wrongfully sold in execution of a decree In such circumstances...