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Tuesday, June 02, 2020

Cheque fraud now comes at a higher price

The Supreme Court in the case of Nitin Gunwant Shah vs Indian Bank & Ors has allowed Indian Bank to sell a prime property in Mumbai and handover the possession of the property to the purchaser after evicting a person who claimed to be a tenant under an agreement.

Written by Indu Bhan | Published: July 18, 2012 1:58:04 am

Occupancy vs mortgage sales

The Supreme Court in the case of Nitin Gunwant Shah vs Indian Bank & Ors has allowed Indian Bank to sell a prime property in Mumbai and handover the possession of the property to the purchaser after evicting a person who claimed to be a tenant under an agreement. It said that a nationalised bank deals with money of the general public and the sale could not be stopped merely on account of the objection of the occupier,who is “abusing the process of the legal system”. In this case,Nitin claimed that he had entered into a ‘leave and license’ agreement in May 1989 with the owners for lease of a flat in Amar Jyoti Cooperative Society,Malabar Hills. The owners of the property had defaulted in payment to the bank and had left for the US. However,the bank records showed that the owners had mortgaged the property with the bank,which invoked the recovery of Debts due to Banks and Financial Institutions Act 1993 for recovery of R33.72 lakh with interest. The bank also sought permission to sell the property to recover its dues and further prayed for eviction of the “trespasser”. The occupier resisted it. The occupier objected to the sale of the property as allowed by the debt recovery tribunal and moved the Supreme Court,which dismissed his plea. However,it clarified that the occupier can seek restitution when his status in regard to the premises is decided by the Small Causes Court.

Deterring bounced cheques

Taking a tough stand on those who issue cheques without sufficient balance in the bank,the Supreme Court said that the accused will have to undergo further imprisonment if compensation was not paid. The apex court in the case of R Mohan vs AK Vijay Kumar said that “deterrence can be infused into the order only by providing for a default sentence. If merely an order directing compensation is passed,it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non-observance,” while confirming the conviction of Mohan. The top court also restored the magistrate’s order awarding two more months of simple imprisonment in default of payment of compensation of R5 lakh. In this case,the accused had challenged the Madras High Court order that upheld his conviction for an offence under Section 138 of the Negotiable Instruments Act,1881. The drawer had challenged that part of the HC order that set aside the additional imprisonment awarded to Mohan on the ground that no separate sentence could be awarded in default of payment of compensation when the substantive sentence of imprisonment is awarded. The accused had argued that he had borrowed only R3 lakh instead of R5 lakh as claimed by the drawer and that the dishonoured cheque was issued only as a security. He relied on an entry from a diary maintained by him showing that only R90,101 was due and payable to the complainant. During the hearing,the complainant honestly admitted that the acknowledgement was in his handwriting.

Even HC can do it

Appointing retired Supreme Court judge RV Raveendran as an arbitrator in the case of Hindustan Petroleum Corporation vs Vijay HP Filling Centre,the Supreme Court has held that a high court has the power to appoint an arbitrator in a dispute if one of the parties refuses to name an arbitrator as per the contract. It said that the party aggrieved by the refusal of the other party to nominate the arbitrator can approach the HC seeking appointment of an arbitrator and then the other party cannot object to the court appointing an arbitrator under the Arbitration and Conciliation Act,1996. In this case,the oil company had terminated its contract with the petrol pump dealer,who invoked the arbitration clause and asked the company to name the arbitrator. After the firm did not appoint any arbitrator,the dealer moved the Punjab and Haryana High Court,which appointed a district sessions judge as arbitrator. The oil firm challenged the order to the Supreme Court,which upheld the view of the high court. The corporation argued that the HC did not have jurisdiction to appoint anyone else as arbitrator as it was incumbent on the HC to appoint the arbitrator named in the agreement.

indu.bhan@expressindia.com

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