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    Shubham Budhiraja [1]   Mr. A filed suit against Mr. B. After framing of issues, Mr. A filed the list of witnesses and examined himself as witness. Mr. B filed no list of witnesses but the trial court allowed Mr. B to be examined himself as witness. After examination of witnesses, Mr. B filed an application under Order 16 Rule 1(3) to examine 12 witnesses. The trial court dismissed the aforesaid application for reason that witnesses sought to be re-called were not part of list of witnesses filed by Mr. B and there are no proper reasons to summon them. The Hon’ble Delhi High set-aside the trial court order because: (i) that was not a request to recall the witnesses because Mr. B never filed any list of witness at first instance, (ii) allowing Mr. B to lead himself as witness without filling the list of witnesses was erroneous. The Hon’ble Delhi High Court further held that the Application under Order 16 Rule 1(3) was not maintainable because it applies only when a list of wi

  Shubham Budhiraja [1]   Mr. A and Mr. B enter into an agreement to sell land wherein Mr. B has paid earnest money deposit (EMD). The contract to be executed within 1 year. Mr. A, on date fixed, appeared before sub- registrar but Mr. B failed to appear. Mr. A served the Legal notice and forfeited the EMD. Mr. B after lapse of 2 years filed a suit for specific performance of the agreement. Meantime the land was acquired by the state under land acquisition act and Mr. B amended the plaint accordingly. The trial court, 1st Appellate court and High Court held that the forfeiture by Mr. A was wrong and directed to refund the EMD. The Hon'ble Supreme Court held that when time was the essence of contract and the purchaser has failed to perform its part as required in the agreement then specific performance cannot be granted especially when the purchaser has moved the court after a lapse of 2 years. Just because there is a limitation of 3 years, there is no answer to claim specific

    Shubham Budhiraja [1]   Mr. A, father filed a senior citizen petition seeking declaration of release deed as void and consequent possession of his property. The tribunal and High Court set aside the release deed created by father to son for reason that son is not taking care of them. Hon’ble Supreme Court held that unless twin conditions of section 23 are fulfilled, the sale deed/ release cannot be treated as void. [2]   (I)                    When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned of Section 23(1) are attached to a transfer, existence of such conditions must be established before the Tribunal.   (II)           

    Shubham Budhiraja [1]   Mr. A took a loan from the Bank. Due to non-payments of the EMI, Bank invoked the arbitration agreement and unilaterally appointed the arbitrator. Mr. A protested for such unilateral appointment. However, the Ld. arbitrator continued the proceedings. Mr. A filed section 12(5) petition seeking terminating the mandate of the arbitrator and to substitute the arbitrator to start afresh. The Bank agitated that the Court cannot appoint the arbitrator under section 12(5) and a separate petition is required under section 13 for this purpose. The Hon’ble High Court held that unilateral appointment of the arbitrator by the Bank cannot be sustained in law. It is not necessary for a party to make a challenge under Section 13 of the Act. A petition for terminating the mandate of an arbitrator who is ineligible under Section 12(5) of the Act and for appointment of a substitute arbitrator, would be maintainable . [2]     (I)                    It is no longer r

  Shubham Budhiraja [1]   Mr. A running a business of scrap material has died in a road accident. As per his ITR, he earns Rs.10,000/- per month. The Motor accident claim tribunal (MACT) quantified the salary of the deceased as Rs. 4,000/- as skilled labour ignoring his Income tax returns for reason that there's only one ITR. The High Court confirmed the same. The Hon’ble Supreme Court while enhancing the compensation has held that Income Tax Return is a statutory document on which reliance be placed, where available, for computation of annual income [2] .     (I)                    The provisions of the Motor Vehicles Act, 1988 gives paramount importance to the concept of ‘just and fair’ compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of ‘just compensation’ which ought to be determined on the foundation of fairness, reasonablenes

State Bank of India filed Appeal against the District Forum order. The matter was heard on 3 dates and order was reserved. Due to absence of SBI on 3 dates, the State Commission dismissed the appeal for non-prosecution.    Hon'ble NCDRC in revision jurisdiction has held that if a matter has been heard and the order has been reserved by a court of law, tribunal or any authority then even on the date fixed if nobody appears on behalf of either of the parties, the matter cannot be dismissed in default, it has to be decided on merits on basis of arguments already advance by the parties when order was reserved. Hence, the impugned order of the State Commission dismissing the appeal for non- prosecution is set aside. [Revision Petition No. 160/2022, NCDRC, Judgment dated 21/11/2022] Shubham Budhiraja  [LLB, ACS, BCOM(H)] Budhirajalawchambers@gmail.com  M: +91-9654055315

  Exclusion Clause & Insurance Policy: The Blue Pencil Rule [1] Shubham Budhiraja [2]   If there is a fraud played upon by the Insurance co. then insurance co. cannot take benefit of it. It becomes voidable agreement to the benefit of consumer. If the mandate of IRDAI is not followed such as proposal form not given within 30 days etc. Then exclusion clause becomes redundant. The Blue pencil applies.      (i)                     An exclusion clause in a contract of insurance has to be interpreted differently. Not only the onus but also the burden lies with the insurer when reliance is made on such a clause. This is for the reason that insurance contracts are special contracts premised on the notion of good faith. It is not a leverage or a safeguard for the insurer, but is meant to be pressed into service on a contingency, being a contract of speculation. An insurance contract by its very nature mandates disclosure of all material facts by both parties.   (ii)        

    Whether period between filling and deciding section 8 Arbitration application is excluded from limitation period for filling counter-claim? [1] Shubham Budhiraja [2]   Mr. A and Mr. B entered into a transaction to buy nitrogen oxygen plant for which Mr. A paid advance sum of Rs.20 lacs. Because the consumer of Mr. A defaulted in payment, Mr. A asked Mr. B to cancel the transaction and refund the advance. On denial of same, Mr. A filed recovery suit against Mr. B. Mr. B filed section 8 arbitration and get the matter referred to the arbitration. Mr. A filed statement of claim and Mr. B filed statement of defence. Mr. B thereafter filed counter claim. Mr. A opposed the same as barred by limitation because 3 years from cause of action has lapsed. The Ld. Arbitrator allowed the counter claim for reason due to filling of section 8 application; Mr. B is entitled to the benefit of section 14 limitation act and such period shall be excluded. The commercial court set aside the findin

  Shubham Budhiraja [1] A filed a partition suit against B. B filed Order 7 R11 seeking rejection of plaint on two grounds (i) court fees, (ii) concealment of will. The Hon'ble High Court rejected the aforesaid Application and held that: [2]   (I)                    Where relief of possession is consequential to the main relief of partition then no separate court is required for both subjects. The plaintiff has paid court fees equal to 1/5 of his share of the market value of property which is sufficient.   (II)                  The mandate of Section 68 of the Indian Evidence Act, 1872 has to be complied with even if the opposite party does not specifically deny execution of the document in the written statement.     [1] Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Budhirajalawchambers@gmail.com , +91-9654055315 [2] Shampa Ghosh v. Alok Kumar Dey, CS(OS) 376/2020, Judgment dated 23/11/22, Neutral Citation 2022/DHC/005053