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  Shubham Budhiraja [2] Mr. A filed a suit for recovery against Mr. B. The Hon’ble Court directed Mr. B to deposit some amount which he failed to do so. Consequently, the defense of Mr. B was struck off. Mr. B challenged the order on the ground that he is an illiterate person and his advocate never apprised him of the order. The Hon’ble Delhi High Court rejected the appeal and held as under:   (i)              Every litigant who appears in court, needs to be vigilant of his rights and is also expected to be vigilant in the judicial proceedings pending in court. Litigant cannot be permitted to cast the entire blame on the Advocate.   (ii)            It has become a tendency to put entire blame upon the previous Advocate just trying to make it out as if they were totally unaware of the nature or significance of the proceedings. Such an argument therefore...

    Shubham Budhiraja [1] A filed a suit for eviction against B, tenant. While the suit was pending, A died. C, his son, filed application under Order 22 Rule 3 CPC, 1908 seeking right to sue as legal representative. The tenant objected to this on the ground that C is not legal heir and his name cannot be substituted. He is an adopted son and there is no adoption deed. The Ld. Trial Court dismissed the tenant’s objection. The Hon’ble High Court affirming the trial court’s order held as under [2] :   1.     Order XXII Rule 3 CPC prescribes procedure in case of death of sole plaintiff or in case of death of one of the several plaintiffs and provides that on such death, the right to sue shall survive to the legal representative of the deceased-plaintiff.   2.     If one goes through the averments made in the eviction petition, it would lay bare that in the petition itself, the landlord had claimed that suit-shop, which is in p...

  Right to property is a valuable right & State is under obligation to make payment immediately without delay [1] Shubham Budhiraja [2] The Land in solan was acquired by notification for giving to Jaypee for mining purpose. The notification was challenged in HP HC. The HC dismisses the writ and held that acquisition for public purpose. Accordingly, the officer visits and determined compensation and paid. The owners filed for supplement amount which was granted by HC but not paid. The Jaypee has scheme of compromise arrangement under section 391 of 1956 act. The Hon'ble supreme court decided as to who has to pay the liability of owners as per scheme.   (i)           The Right to Property in our country is a net of intersecting rights which has been explained in Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors., 2024 SCC OnLine SC 968 .   (ii)        ...

  Mere fact that Opposite Party is a real estate company does not mean that flat was purchased for commercial purpose [1] Shubham Budhiraja [2] (i)                  To determine whether the goods purchased by a person (which would include a legal entity like a company) were for commercial purpose or not within the meaning of the Act would depend upon the facts and circumstances of each case.   (ii)                 However, ordinarily “commercial purpose” is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities. The purchase of the goods should have a close and direct nexus with a profit generating activity.   (iii)               If it is found that the dominant purpose behind ...

  Shubham Budhiraja [2]   1.      What has to be been seen simply is the date of registration of the FIR and the law as applicable as on the date of such registration. Trite it may sound, but settled position is that, the moment an FIR is registered under section 154 of the Cr.P.C., criminal investigative/administrative machinery is set in motion under Chapter XII thereof. Thus, if an FIR is registered prior to 01.07.2023 under the Cr.P.C., it would amount to a pending enquiry/investigation within the meaning of section 531(2)(a) of BNSS. The entire subsequent investigation procedure and even the trial procedure qua such an FIR shall then be governed by Cr.P.C. and not BNSS.   2.      It so transpires that learned counsel for the petitioner had though rightly filed the instant petition initially under Section 482 Cr.P.C., but on an objection raised by Registry of this Court, it was converted into one under section 528 of B...

  Whether unstamped agreement to sell executed in the year 1988 can be relied upon in suit for possession?   Under what circumstances, photocopy of agreement to sell can be relied upon as secondary evidence?   Shubham Budhiraja [1]   A filed a suit for possession against B on basis of agreement to sell executed in the year 1989. During the hearing, A filed IA for reading photocopy of agreement to sell as secondary evidence because he is not able to find the original agreement to sell. The Trial Court allowed the IA but in review rejected that because agreement to sell was insufficiently stamped therefore bar of section 35 of stamp act applies. The High Court confirmed the order. The Hon’ble Supreme Court held that bar of Section 35 will not apply because amendment of 1990 wherein explanation was added to the stamp act was substantive in nature and therefore new obligation of stamping cannot be imposed on agreement of sell executed between A and B. [2] ...

  Shubham Budhiraja [1]   Mr. A subscribed to the chit tickets of chit fund company. The chit company stopped the business and Mr. A instituted consumer case seeking refund of deposits made in chit fund. The chit company took a plea that Mr. A is not a consumer because transaction is for commercial purpose. The Learned District Forum, Hon’ble State Commission and Hon’ble NCDRC favoured the complainant. The Hon’ble Supreme Court held as under [2] :   (i)              To file a complaint, one must be a complainant and for one to be a complainant, he must be a consumer. If a person fails to come within the definition of a consumer, he cannot be a complainant and therefore, such person cannot file a complaint under the Act.   (ii)            The definition of consumer has three parts. The significance of deconstructing the definition into three part...

  Shubham Budhiraja [1]   Mr. A filed suit for deceleration of easement rights against Mr. B. The Hon'ble Supreme Court held that it was nowhere pleaded in plaint that right was exercised for more than 20 years. Mere saying right was exercised for many years is not equal to 20 years. The evidence cannot go beyond pleadings. The deposition of POA can only of facts within his personal knowledge and not of someone else. Hence, suit fails. [2]     1.    The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness.   2.    The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.                    ...

  Shubham Budhiraja [LLB, ACS, BCOM(H)],   Budhirajalawchambers@gmail.com , +91-9654055315 The Hon’ble NCLAT, New Delhi in the case of M/s Murphy Steel v. M/s Gujarat Wedge Wire Screens Limited , Company Appeal (AT) Insolvency No. 171/2024 upheld the NCLT’s order wherein claim of operational creditor was dismissed for barred by limitation. This is a case where operational creditor set up a plea of running account to justify 26 invoices. All these invoices were of period between 2011 to 2016 whereas section 9 petition was filed in September 2020. The Learned NCLT dismissed the petition being time barred. The Hon’ble NCLAT upheld the findings of Learned NCLT and held that there is no document/agreement between the two parties which evidences running account payment underlying their business operations. In the absence of any documentary evidence which provides foundational basis to the claim that there was a running account, the decision in Shri Abhinandan Jain v. Tanaya En...

  Shubham Budhiraja Hon'ble Delhi High Court held that it is not the award amount but the claim amount + counter claim amount that determines pecuniary jurisdiction under section 34. [OMP (Comm) 465/2022]   (i)                  Under Section 5(2) of the Delhi High Court Act, 1966, the ordinary original civil jurisdiction of this Court is attracted in a suit valued at over Rs. 2 crores .   (ii)                 Section 12(2) of the Commercial Courts Act, 2015, relevant for valuation of these petitions under Section 34 of the Act, provides that the “specified value ” in an arbitration of a commercial dispute will include the value of both the claims and counter claims.   (iii)               Under Section 2(1)(e) ...

  Shubham Budhiraja [1]   Mr. A filed a recovery suit against Mr. B. Mr. B filed the written statement to which Mr. A field the objection. The Learned Court through one of order observed that the written statement is not in compliance with Order VI Rule 15A. Mr. A thereafter filed an application for striking off Mr. B’s pleadings (WS) for non-compliance of provisions of commercial courts act, 2015. Mr. B filed an application for curing the defects. The Learned Trial Court allowed Mr. B’s application and strike off the pleadings. The Hon’ble Delhi High Court set aside the trial court’s order and held as under: [2]   (I)                 In FMC Corporation and Anr. v. NATCO Pharma Ltd ., 2020 SCC OnLine Del 2074 wherein similarly the Court held that an application for amendment seeking to cure the defects in verification and pleading should be permitted liberally and a party should not be no...