Tuesday, August 27, 2019
Sunday, August 25, 2019
Motor Accidents Claims Tribunals -Especially with regard to the question of granting proportionate costs, including Advocates' fee
[2019] 0 Supreme(Ker) 471
Motor Vehicle Rules, 1989- Civil Rules of Practice and the Advocates' Fees Rules, 1969 -There are no specific rules in the Motor Vehicle Rules, 1989, analogous to the Rules for payment of costs prescribed under the CPC, Civil Rules of Practice and the Advocates' Fees Rules, 1969 and therefore, there is nothing wrong in drawing the analogy while following the mandates of Rules 195 and 196 of the Kerala Civil Rules of Practice, 1971 as well as Rules 6 and 16 of the Advocates' Fees Rules, 1969 in the light of Rule 381(2) of the Motor Vehicle Rules, 1989 to claim proportionate costs in proceedings before the Motor Accident Claims Tribunals.
Statement of facts:
Awarding costs by the Motor Accidents Claims Tribunals -Especially with regard to the question of granting proportionate costs, including Advocates' fee.
The following are the four questions referred
1. Whether the Motor Accidents Claims Tribunals must follow the mandate of Rules 195 and 196 of the Kerala Civil Rules of Practice, 1971?
2. Whether the scales of fees prescribed under 'Rules Regarding Fees Payable to Advocates' apply to Advocates in Motor Accidents Claims Tribunals?
3. Whether Rules 6 and 16 of the Advocates' Fee Rules, 1969 are applicable to claim petitions in the light of Rule 381(2) of the Motor Vehicles Rules?
4. Whether the Motor Accidents Claims Tribunals are empowered
Findings of the court:
(1) Motor Accidents Claims Tribunals must follow the mandate of Rules 195 and 196 of the Kerala Civil Rules of Practice, 1971.
(2) The scales of fees prescribed under 'Rules Regarding Fees Payable to Advocates' apply to Advocates in Motor Accidents Claims Tribunals.
(3) Rules 6 and 16 of the Advocates' Fee Rules, 1969 are applicable to claim petitions in the light of Rule 381(2) of Motor Vehicle Rules, 1989.
(4) Motor Accidents Claims Tribunals are empowered to award proportionate costs.
Result: The reference is answered. The Appeal is sent back to the Division Bench for further consideration.
Thursday, August 1, 2019
Cheque-bounce cases: Courts must give second chance if lawyer absent, says this State HC
Justice Mary Joseph issued the directive after considering petitions filed by the CauveryBuild Tech Private Ltd through advocate BH Mansoor. An order passed by Kalamassery judicial first class magistrate court on March 30th this year were challenged before the high court.
The petitioner had approached the JFCM court with applications to condone the delay in filing complaints to launch prosecution for cheque-default case under section 142 of Negotiable Instruments Act, 1881. The delay-condonation applications & the complaints were rejected by the JFCM court citing absence of complainant or lawyer when the case was called.
After considering the petitions challenging the JFCM court’s order, justice Mary Joseph said in the judgment, "The court concerned ought to have passed orders on merits in the petitions pending consideration. Rather than doing so, those were dismissed. The subordinate courts ought to have borne in mind that they are sitting not to curtail a party’s legitimate right to prosecute a case in a manner wrecking vengeance. In the case on hand, the court below ought to have granted a second chance for appearance of the complainant or his counsel."
The high court also pointed out that it was not a case where the lower court was in dark or was restrained from proceeding further due to the absence. Courts must be vigilant while denying the valuable right of a person to prosecute the case & that the absence of the counsel or the complainant may be due to a genuine reason, the high court said while noting that the complainant’s presence was not warranted in the case.
The JFCM court also failed in applying its mind to previous proceedings to see whether the complainant is a person vigilant in prosecuting his case, the high court said. Whether the character of the complainant is contumacious could only be discerned from the context of the case on previous occasions but the JFCM court’s order has no reference about it, the high court pointed out.
Granting one more opportunity to the complainant to prosecute his case on merits, the high court set aside the JFCM court’s order. Petitioner’s counsel told TOI that rejecting cheque-default cases citing absence of lawyer or complainant on the first hearing itself is a normal practice in lower courts, even though the complainant is not required to be present as he is represented by a lawyer instead.
Section 138 NI Act: Case not maintainable if account is blocked
High Court of Punjab & Haryana has held that if bank account has been blocked, it cannot be treated as beiing maintained by the account holder and therefore, no liability can be attached to the drawer of cheque of that bank account.
A bench of Justice Bajaj has passed the order in the case titled as Rajesh Meena vs State of Haryana on 01.07.2019
It is argued on behalf of the complainant that of course the provisions of Section 138 NI Act do contemplate that the penal provisions would be attracted in case the cheque in question is dishonoured on account of "insufficient funds" or "the amount exceeds the arrangement", but these provisions have been interpreted on number of occasions by this Court as well as by the Hon'ble Supreme Court, wherein it was held that in cases where the account is "closed" or "payment was stopped" by drawer even then complaint under Section 138 NI Act would be maintainable. It is vehemently argued that on the same analogy, the complaint is maintainable as it is not disputed by the accused that the blocked account belongs to it which resulted in dishonour of the cheques. According to the respondent, the trial Court has passed the summoning order carefully after examining the material on record and therefore, the petition deserves to be dismissed.
High Court observed "A careful analysis of Section 138 NI Act reveals that the first and foremost requirement to maintain the complaint under Section 138 NI Act is that the cheque issued by the account holder must be from the account maintained by account holder with the drawer-Bank for discharge in whole or in part of any debt or other liability".
High Court further observed and held "Therefore, the said expression "account maintained by him" cannot be construed narrowly to mean that if the account belongs to the accused, the necessary ingredient would be complete. This expression "account maintained by him" must necessarily include that the said account is not only alive and operative, but the account holder is capable of executing command to govern the financial transactions which include the clearance of cheques etc. The authority and control of the account holder upon the account must exist on the effective date i.e. when the cheque becomes valid for presentation in the bank. It is settled law that mere issuance of a cheque is not an offence, but it becomes punishable when the said cheque is dishonoured. Mere fact that the record of the drawer bank shows a particular name as account holder would not be sufficient to establish that account is being maintained by the account holder, unless the said account holder holds the authority and control over the said account. In other words, if an account holder is deprived off his authority, control and dominion over the bank account, it cannot be said that the account is being maintained by the said account holder".