Friday, September 23, 2011

Procedure for filing of petitions u/s 482 Cr.PC in the High Court of Delhi

Dear Friends,


I am posting the procedure for filing the petitions u/s 482 of Cr.P.C. in the Delhi High Court along with the precautions which should be taken before filing to minimize the defects. I am also mentioning the cure of some of the common defects which have been found in my petitions in past.


1.     Timing for filing of fresh petition is from 10.30 am to 1.30 pm and from 2 pm to 4 pm. For getting listed the petition next day, it should be filed and all defects should be removed before 12 pm of the same day. If defects are removed after 12 pm then it is listed day after next day. If you wish to get it listed on any date of your choice, mention so in the ‘Urgent Application’.


2.       Fresh petitions u/s 482 of Cr.P.C. are listed on all working days i.e. Monday to Friday.

3.       Only one original set of petition is to be filed.


4.       Title of the petition u/s 482 of Cr.P.C. is “Crl.M.C. No. of 2011”.


5.       On ‘Memo of parties’ (in the bottom left corner) write the complete detail/ title of the case as written on the petition itself including nature of petition, name of trial judge, impugned order’s date, main complaint number & title, etc.


6.       Caveat report to be taken before filing. If caveat filed then serve a set on each respondent by hand/ by courier or speed post. Paste/ staple the postal receipt on the ‘Notice of motion’. If copy is served by hand then the petition may be listed next day but if the copy is sent by post then it is served after three days.


7.       If State is the party then serve two copies in advance (even without caveat) and get acknowledgment on the ‘Notice of motion/ Letter of service’ from the counsel for the state.


8.       All the documents should be attached to legal size papers. If annexures are fade or unclear then get them typed. Documents in Hindi must be accompanied by their translated papers. Left side margin has to be 2 inch for both Hindi and English papers (originals or photocopies). If not, then attach the photocopy (2 inch margin) of the same along with the originals.


9.       'True typed copy' for re-typed papers & 'True translated copy' for translated papers to be written on the first and last page of all annexures and counsel should sign there. No back to back annexure can be filed. If has to be filed then file a photocopy of the back printed paper alongwith the original.


10.     ‘Opening form’ to be used and then index and then urgent application and then ‘notice of motion’ (if respondents have filed caveat) and then ‘memo of parties’ and then the ‘synopsis & list of dates’ and then ‘main Petition’ then ‘annexures’ and at the end the ‘stay application with affidavit’ (if stay of trial court proceedings required) and/ or application for ‘exemption from filing the certified copies, etc. and at last the Vakalatnama.


11.     Urgent application requires Rs. 3/- court fee. Main petition requires no court fee except .65 paise per page of annexures which shall be affixed on Memo of Parties. Vakalatnama requires Rs. 10 Welfare stamp and Rs. 3 Court Fee. All other applications e.g. for stay, for exemption from certified copies, etc. require Rs. 3/- court fee.


12.     In urgent application write “urgent reliefs are prayed for (like stay of trial court proceedings)” or “urgent reliefs have been sought for in the petition”. Mention the date on which petition should be listed.


13.     From Urgent application to Vakalatnama to be numbered from 1-100.


14.     No file cover is needed but green threat to be used at the time of filing to tie the petition.


15.     Petitioner’s signature to be attested by the counsel on the Vakalatnama by writing “Signatures of the petitioner identified”.


16.     'Synopsis & List of dates' to be written on the top. Nothing to be written where synopsis ends and list of dates starts. Annexures to be mentioned in the petition’s main part mentioning facts.


17.     Trial Court record’s e.g. FIR, Charge Sheet, Orders, etc. certified copies to be filed. If they are not available then file application for exemption from filing certified copies.


18.     Diary number to be noted from filing counter and also ask the name of concerned dealing clerk. Contact him immediately to remove the defects. If defects are found then remove them within two days otherwise service on state/ respondent shall be required again.


19.     If the petition is filed by any officer, agent, employee of the company in his name but for the company then file the Board Resolution authorizing him to file the petition and also the stamp of the company under the signatures of the petitioner on the complete petition wherever petitioner’s signatures have been made.


20.     On the date of hearing, if notice is issued by court and accepted by the State’s Counsel then, there is no need for filing PF and serve copies again. If respondents were not served, then file PF within 7 days of the order by the modes (Dasti, Courier, Speed Post and Registered A/d, etc.) as ordered by the Court.


21.     If the client has signed the petition/ Vakalatnama in a language other then English, then it should be mentioned in all affidavits filed with the petition that ‘the contents of the petition/ application have been read over to and well understood by the petitioner in vernacular’. If he has put his thumb impression, then it has to be identified by the counsel.



(I earnestly thank Sh. Rajeev Kumar Singh, Advocate on Record, Supreme Court of India and Sh. Amit, Advocate, Delhi High Court who always help me whenever I call them to remove the defects.)

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By: Praveen Kumar Jain
Advocate, Supreme Court of India
Phone: 098712 78525

Sunday, August 01, 2010

Judgment in Deewan Arora v. Tara Devi Sen & Ors. – A critical study

*Published in Chareted Secretary, Vol. XL, No. 7, July 2010, pp. 947-955


1. BRIEF FACTS OF THE CASE

The brief facts of the case titled Deewan Arora v. Tara Devi Sen & Ors. , as per the suit averments, are as under:

On 14-02-2008, Tara Devi -the defendant no. 1 executed an agreement to sell her freehold property in favour of Deewan Arora -the plaintiff for a consideration of Rs. 23,50,000/-. A sum of Rs. 8,00,000/- was paid to the defendant in cash on 14-02-08 by the plaintiff and it was agreed that the defendant would hand over the vacant physical possession of the suit property to the plaintiff by 10-04-2008, which condition was complied with. Balance consideration of Rs. 15,50,000/- was to be paid on or before 10-05-08. Accordingly a sum of Rs. 9,30,000/- was again paid in cash on 02-05-08. When on 03-05-08 the plaintiff again visited the defendant no. 1 and her husband -the defendant no. 2 to pay the balance of the consideration amount, they were not there and could not be traced. Later it was discovered that the property was mortgaged with GE Money –the defendant no. 3 against a home loan of Rs. 13,50,000/-, whereas in terms of the agreement to sell, the suit property was stated to be free from all encumbrances, such as sale, mortgage, gift, lien, lease, litigation dispute, etc. Then plaintiff approached the defendant no. 3 and volunteered to repay the pending loan amount in full requesting that the original documents pertaining to the suit property should be handed over to him, which request was declined. In these circumstances, the plaintiff filed a suit seeking a decree of specific performance in terms of the Agreement to Sell dt. 14-02-08 along with a direction to the third defendant to hand over all the documents of the suit property on repayment of home loan taken by the defendant for the purchase of the suit property.

2. OBSERVATION OF THE COURT

Hon’ble Single Judge of the High Court of Delhi while disposing off the suit made one of the following observations:

“6. …Deewan has, in the opinion of this Court, established the existence of the alleged Agreement to Sell dated 14.2.2008. However, it is noteworthy that the said Agreement to sell is an unregistered document which purports to also convey possession to the vendee (Deewan). By the Registration and Other Related Laws (Amendment) Act, 2001, Section 17 of the Registration Act, 1908 was amended, by inserting the following provision (requiring compulsory registration of certain instruments):

“(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53A…”

The same amendment inserted Item 23A in the schedule to the Stamp Act, which required payment of 90% of stamp on the transaction value, at the stage of execution and registration of an Agreement to Sell, wherever the sale was to be in the Union Territory. The overall effect of these two amendments is that such documents which mention that possession is given, are to be appropriately stamped and registered. The agreement to sell, in this case, is not so stamped; it is also unregistered.”

3. POINTS IN CONTROVERSY

Though it was stated in para 7 of the judgment that the observations in para 6 were not dispositive, still they have precedential value, therefore, the author proposes to examine the observation of the Hon’ble Judge that ‘the overall effect of these abovementioned two amendments is that such documents which mention that possession is given, are to be appropriately stamped and registered’. Secondly, whether in a case of specific performance, the agreement to sell requires registration and 90% of stamp duty as a conveyance if it purports to transfer possession of the property to the vendee. In other words, whether amended provisions of Section 53A of the Transfer of Property Act, 1882 (hereinafter “TP Act” for short) and subsequently inserted Section 17(1A) of the Registration Act, 1908 and Item 23A of the Schedule to the Indian Stamp Act, 1899 apply suo motu in case an agreement to sell purports to transfer possession of the property to the vendee?

4. POSITION OF LAWS RELATING TO TRANSFER AND REGISTRATION

OF PROPERTIES BEFORE THE AMENDMENT IN 2001

A. Specific performance of contract

The usual remedy for a breach of contract is for damages as provided in Sec. 73 of the Contract Act, 1872. The Specific Relief Act, 1963 provides for an additional remedy of specific performance, without affecting the right to claim damages. It is an equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed to do. Thus, the remedy of specific performance is in contrast with the remedy by way of damages for breach of a contract and where a party to a contract has a right to relief under his contract, other than specific performance, eg, rescission, termination, liquidated damages, forfeiture, etc. such rights would not be affected by the provision of the Specific Relief Act .

The Registration and other Related Laws (Amendment) Act, 2001 (No. 48 of 2001) (hereinafter “the Amending Act” for short) has not made any change to the Specific Relief Act.

B. Doctrine of part performance

When the TP Act was enacted, Sec. 53A did not find place in it. In its absence there arose difference of opinion among various Courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. Therefore, the Government of India resolved to set up a Special Committee for making recommendations, amongst others - whether the British equitable doctrine of part performance be extended in India also. The committee was of the view that where a transferee in good faith, that lawful instrument i.e. a written contract would be executed by the transferor, takes possession over the property, the equity demanded that the transferee should not be treated as a trespasser by the transferor and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee was also of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired.

The aforesaid recommendations of the Special Committee were accepted by the Government of India as the same is well reflected in the aims and objects of Amending Act, 1929, whereby Sec. 53A was inserted in the Act . The section provided that where a person takes possession of an immovable property in part performance of a written contract and he has performed or willing to perform his part of the contract, then the transferor shall be debarred from enforcing against him any right in respect of such transferred property notwithstanding that the contract, though required to be registered, has not been registered. Thus, the proposed transferee can use Sec. 53A as a shield to protect his possession either as a defendant or as a plaintiff but not either for getting title or for getting possession if he is not actually in possession. However, it is humbly submitted that even if Sec. 53A did not have the above notwithstanding clause, such agreements never required registration under Sec. 17 of the Registration Act until insertion of Sec. 17(1A) in it. The reason is discussed under next heading.

C. Registration of agreement to sell

Section 17 of the Registration Act, 1908 lists those documents of which registration is compulsory. Relevant clauses are as under:

“17. Documents of which registration is compulsory.-

(1) The following documents shall be registered, … namely:-


(b) other non- testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

*** *** ***

(2) Nothing in clauses (b) and (c) of sub- section (1) applies to—


(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or


Explanation.-A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.”

A reading of Clause (b) of Sub-section (1), clause (v) of and explanation to sub-section (2) of Section 17 of the Act shows that the fact that the earnest money or entire consideration was paid and/ or the possession was transferred and/ or the words ‘that the vendee shall from the date of the document have complete control over the property and enjoy the same with full rights’ are not determinative or conclusive of the question whether the document constitutes a contact of sale. The essential element is that the document must transfer immovable property or an interest therein which should be inter vivos so as to constitute conveyance within the meaning of Sec. 2(10) of the Indian Stamp Act, 1899. In other words, there should be vesting of title in one and divesting from the other who gives up title . For this reason, an agreement to sell did not require registration until amendment in 2001 even for the purposes of Sec. 53A.

Now we may refer to Section 49 of the Registration Act, which is as under:

"49. Effect of non-registration of documents required to be registered.- No document required by Section 17 (or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such unless it has been registered :

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877), or as evidence of part-performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument.”

The proviso to Section 49 was added by the Transfer of Property (Amendment) Supplementary Act, 1929 (21 of 1929) following the Transfer of Property (Amendment) Act, 1929 (20 of 1929) which inserted Sec. 53A. It provided that unregistered document effecting immovable property may be received as evidence of (1) a contract in a suit for specific performance under the Specific Relief Act, or (2) as evidence of part-performance of the contract for the purpose of Section 53A of the TP Act, or (3) as evidence of any collateral transaction not required to be effected by registered instrument.

5. POSITION OF LAWS RELATING TO TRANSFER AND REGISTRATION

OF PROPERTIES AFTER THE AMENDMENT IN 2001

The Amending Act has omitted from the notwithstanding clause of Sec. 53A the words “the contract, though required to be registered, has not been registered, or” and has also omitted from the proviso to the Section 49 of the Registration Act the words "or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882". And Article 23A in the Schedule I of the Stamp Act has been inserted requiring 90% of the Stamp duty as a conveyance on the contracts for the transfer of immovable property in the nature of part performance under section 53A of the TP Act.

The effect of above amendments is that now a purchaser cannot protect his possession of the property under the shield of Sec. 53A of the TP Act if the agreement to sell is not registered and duly stamped. This is further fortified from the reading of Sec. 17(1A) of the Registration Act which was inserted by the same Amending Act. It provides that if the documents containing contracts to transfer for consideration, any immovable property are not registered, then they shall have no effect for the purposes of the Section 53A of the Transfer of Property Act, 1882.

Apparently, right to file a suit for specific performance on the basis of an unregistered agreement to sell is unaffected by the amendment.

6. ANALYSIS OF THE PRESENT CASE

In the present case the plaintiff had filed the suit not for protecting his possession u/s 53A but for execution of the sale deed in his favour through specific performance of the agreement to sell. In fact, there was no threat to his possession from the defendants who had disappeared and did not appear even before the Court despite of service of summons. While hearing the suit for specific performance, the Hon’ble High Court, it is humbly submitted, might not have required the plaintiff to comply with the conditions precedent to section 53A of the TP Act. In the proviso to Sec. 49 of the Registration Act, the Legislature has clearly distinguished the difference between the two kinds of remedies by exempting separately the documents filed in evidence under both of them from registration. While the Amending Act has withdrawn the exemption of registration of a contract filed in evidence under Sec. 53A, it did not affect the right of a person to file a suit for specific performance on the basis of an unregistered contract. It is submitted that remedies under ‘equity of specific performance’ and ‘doctrine of part performance’ neither supplant nor supplement each other. They stand on their own legs and crutches. Further distinctions between them can be discussed under following sub-headings.

A. Nature, object and sphere

It is submitted that nature and object of both the remedies is totally different. While the former is a sword, the later is a mere shield. While the former results in transfer of title of the immovable property, the later only maintains status quo. While the former enforces the rights of a part performer, the later only limits the rights of the owner against the part performer. While the former lends a hand to the part performer only upto three years from the date of refusal of performance , the later goes on with the transferee or any person claiming under him . While the former can be availed even for the enforcement of an oral agreement , the later acknowledges only written one .

It is further submitted that both the remedies operate in completely different spheres. While the former may be enforced by either party to the agreement , the later can be invoked only by the proposed vendee. In granting relief u/s 53A, the question whether the contract is specifically enforceable has no bearing at all, and the doctrine of part performance applies even if specific performance is not otherwise permissible . Similarly, in granting relief of specific performance, it is submitted that the question whether the shield of Sec. 53A is available or not has no bearing at all.

It is further submitted that at one point of time, a part performer can seek both the remedies simultaneously. The former for getting title deeds and the later for protecting his possession till such title deeds are conveyed. In case he has an unregistered agreement to sell, it is submitted that he may be awarded decree of specific performance if he complies with the other necessary conditions laid down by the Specific Relief Act, but shall be refused shield of Sec. 53A. It is further submitted that if in the present case under examination the proposed vendor had filed the suit for specific performance, then he could not have been denied remedy for want of registration and stamp of the agreement of sale as done to Deewan - the plaintiff.

B. Transfer of possession

The Hon’ble Court has laid heavy emphasis in para 6 to the fact that the agreement to sell had purported to convey possession to the vendee and after noticing Sec. 17(1A) of the Registration Act reached to the conclusion that such documents which mention that possession is given, are to be appropriately stamped and registered. It is submitted that Sec. 17(1A), inserted by the Amending Act, itself clearly says that the documents containing contracts to transfer for consideration any immovable property for the purposes of Section 53A of the TP Act shall be registered and if such documents are not registered, then, they shall have no effect for the purposes of the said section 53A. Thus, the documents containing contracts to transfer any immovable property may be received as evidence of a contract in a suit for specific performance. Transfer of possession affects the invocation of remedies of specific performance and part performance in different square. While the former can be availed of whether possession has been transferred or not but prior transfer of possession is sine qua non for invoking the later. Thus, the remedy of Specific performance is independent of transfer of possession. At the best it strengthens the case of the part performer for specific performance.

It is also submitted that u/s 22(1)(a) of the Specific Relief Act, the plaintiff can seek possession of the property, if he is already not in possession, in addition to the specific performance of a contract for transfer of immovable property. But u/s 53A, a person can only retain- not seek possession of the property.

7. QUILIBET POTEST RENUNCIARE JURI PRO SE INTRODUCTO

The maxim of Quilibet Potest Renunciare Juri Pro Se Introducto says that any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favour. Thus, a defendant may, as a rule, decline to avail himself of a defence which would be at law a valid and sufficient answer to the plaintiff’s demand, and waive his right to insist upon that defence. Similarly, a man may also renounce a claim which might have been substantiated or exclude some more extensive right, which the law would otherwise have conferred upon him . Therefore, it is submitted that nobody can be compelled to avail a particular relief which is available to him and then consequently be put under burden to satisfy the conditions precedent to grant such unsought for relief. Therefore, in the present case the plaintiff could not have been required to fulfil the conditions precedent to Sec. 53A which was never invoked by him. It is further submitted that if the plaintiff had chosen to file a suit for damages, an additional statutory remedy which was available to him, he need not have to comply with the conditions precedent to a decree of specific performance.

8. CONCLUSION

In light of above discussion, the current position of laws relating to registration and stamp duty on transfer of immovable properties is summed up as under:

1. An agreement to transfer immovable property without transfer of actual physical possession, in general, requires neither registration nor 90% of stamp duty as a conveyance.

2. An agreement to transfer immovable property with transfer of actual physical possession does require registration and 90% of stamp duty as a conveyance for invoking Sec. 53A of the TP Act.

3. An agreement to transfer immovable property with or without transfer of actual physical possession requires neither registration nor 90% of stamp duty as a conveyance for seeking damages for breach of contract.

4. An agreement to transfer immovable property with or without transfer of physical possession requires neither registration nor 90% of stamp duty as a conveyance for seeking specific performance of the contract.

Therefore, the author begs to differ with the observation of the Hon’ble Delhi High Court in the para no. 6 of the judgment that ‘the overall effect of these abovementioned two amendments is that such documents which mention that possession is given, are to be appropriately stamped and registered’. It is humbly submitted that it is not transfer of possession but threat to transferred possession which awakens the Sec. 53A to act like a sentry. Sec. 17(1A) and Item 23A are exclusive twin pulling horses of its chariot.

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By: Praveen Kumar Jain
Advocate, Supreme Court of India
Mobile: +91 98712 78525

Sunday, November 22, 2009

SIZE OF COMPENSATION FOR MEDICAL NEGLIGENCE – A WAKE UP CALL FOR HEALTH BUSINESS



(Published in Legal News & Views, Indian Social Institute, New Delhi, Vol 23: No. 8: August 2009)


Safety of patients from incompetent and negligent doctors and safety of doctors from undue harassment from unscrupulous litigants has been a perennial problem faced by the Medical Jurisprudence. But when a two judges bench of the apex court in the case of Martin F. D'Souza v. Mohd. Ishfaq[1] directed in February 2009 that whenever a complaint is received against a doctor or hospital by the Consumer Forum or by the Criminal Court then before issuing notice to the doctor or hospital it should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital, many perceived that balance has tilted in favour of doctors as a team of doctors would always give opinion in favour of its fellows only.


However, when a full bench of the apex court in May 2009 in the case of Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Ors.[2] awarded unprecedented compensation of Rs. One crore to a techie against the hospital which while operating on Neurofibroma, an innocent tumour, gifted him acute paraplegia with a complete loss of control over his lower limbs, message was received that there are silver linings too in the dark clouds.


A failure to exercise reasonable skill and care in diagnosis and treatment as per the available medical practice and procedure comes under medical negligence. A mere misjudgment or error in medical treatment by itself would not be decisive of negligence towards the patient. As long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence[3].


In this case, the operation was performed on 23rd October, 1990 and since then the victim caught paraplegia requiring him continuous physiotherapy and nursing care on account of infection of the urinary tract and the development of bed-sores etc. He filed a complaint before the National Consumer Redressal Commission on 5th April, 1993 alleging utter and complete negligence on the part of the doctors and the hospital before, during and after the operation and claimed Rs. 4.61 cores as compensation under various heads. The Commission on 16th February, 1999 directed the hospital to pay only a total compensation of Rs. 15.5 lakhs to the complainant. Both the parties filed appeals in the apex court. The techie pleaded that the compensation given by the Commission was inadequate and not commensurate with the damage and agony that he and his family had undergone and which had cut short the promising and lucrative career which laid ahead for him. The apex court, after referring to several international authorities in medicine, observed that the complete investigations prior to the actual operation had not been carried out. It also found the allegation of the complainant true that the consent that had been taken was only for the purpose of an excision biopsy which was an exploratory procedure, but the doctor had carried out a complete excision removing the tumour mass and the fourth rib thereby destroying the inter-costal blood vessels leading to paraplegia and had a Neuro-surgeon been associated with the operation, this problem could well had been avoided. Referring to its an earlier decision, the apex court further held that the consent given by the complainant for the excision biopsy cannot, save in exceptional cases, by inference, be taken as an implied consent for a surgery.



The Supreme Court, while awarding an exemplary compensation of Rs. 1 crore has set forth following rules which would act as lighthouse to the consumer forums in the coming times:

· that a mere misjudgment or error in medical treatment by itself would not be decisive of negligence towards the patient and the knowledge of medical practice and procedure available at the time of the operation and not at the date of trial, is relevant. A doctor rendering treatment to a patient is expected to have reasonable competence in his field. (Bolam's principle).

· that a balance has to be stricken between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation.

· the amount of compensation was computed keeping in mind that victim’s brilliant career has been cut short and there was, as of then, no possibility of improvement in his condition, the compensation would ensure a steady and reasonable income to him for a time when he would be unable to earn for himself.

· A person’s absolute right over his body has been re-affirmed by holding that unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without his consent.

· One of the foremost defences of the doctors in complaints against them has been locked by holding that the Consumer Forum is an alternative forum established under the Act to discharge the functions of a civil court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the civil court.


The courts, though at a turtle speed, seem to be nourishing the infant law of tort in India. Though, it seems to be a unprecedented amount of compensation, but only Rs. 25 lac were awarded towards loss of future earnings of a person whose yearly salary as of now is Rs. 28 lac. It is a trifle compared to the 5 million pounds recently given to British TV actress Leslie Ash in a similar case by the Chelsea and Westminster Hospital[4]. However, for future claims, the consumer forums, like national commission which granted only Rs. 15.5 lac in this case, now would be less hesitant in determining size of compensation as per the size of negligence and harm to the patient in light of this ruling which has come as a “wake-up call” for the health business. Last but not the least, money for his daily medical and care expenses needed by a twenty years young boy was granted by the court to a forty years old man - justice delayed but not denied!





[1] (2009) 3 SCC 1

[2] 2009 (7) SCALE 407


and http://en.wikipedia.org/wiki/Leslie_Ash (visited on 29-06-2009)

-------------------------------------------------------------------------------------------
By: Praveen Kumar Jain
Advocate, Supreme Court of India
Mobile: +91 98712 78525
Email: pkj@lawyer.com

Saturday, February 23, 2008

ARBITRAL TRIBUNAL – A HANDICAPPED SUBSTITUTE FOR COURTS OF LAW

Published in Chartered Secretary, Vol. XXXVIII, No. 2, Feb. 2008, pp. 176-178 (Monthly publication of ICSI, N. Delhi)

Arbitration is one of the alternative dispute resolution mechanism designed to solve the problem of mounting arrears of cases pending in regular courts of law. M.A. Sujan observes: “In popular parlance, arbitration may be defined as a private process set up by the parties as a substitute for court litigation to obtain a decision on their disputes.”[1] Arbitration is an ‘alternative’ or ‘substitute’ for the regular courts of law empowered to dispense justice.

Self-contained code in itself

The Arbitration and Conciliation Act, 1908 (hereinafter “the Act” for short) of India is a self-contained code in itself providing within it all the procedural and substantial aspects of Arbitration. Section 19 (1) of the Act provides that the arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.

Section 16 of the Act provides absolute power to the Arbitral Tribunal itself, to rule on its own jurisdiction, including ruling on any objections, with respect to the existence or validity of arbitration agreement.

Section 17 of the Act vests the Arbitral Tribunal with powers to order a party to take any interim measure of protection on the subject-matter of dispute and it may also require a party to provide an appropriate security in connection with a measure ordered by it.

The Act, under Section 34, read with Section 37, has also provided for appeal on limited question of fact and law against the decision of the arbitrators.

Section 16 and Section 34(2) (a) (ii) also reveal that the Act also envisages a revision of the decision and conduct of the Arbitral Tribunal by the civil courts.

Under Section 31, the provisions of Section 34 and Section 35 CPC has also been incorporated in the Act, as an integral part of it, in respect of award of interest and cost by the Arbitral Tribunal.

Under Section 27, the arbitrator is authorized to seek assistance of the court for recording of evidence under certain circumstances.

Under Section 26 of the Act, the Arbitral Tribunal may appoint commissioners and experts, wherever required, for proper adjudication of disputes referred to it. Thus, an Arbitral Tribunal does not necessarily need the wheels of most of the procedural laws which are sine-qua-non of a court of law to move on.

A Substitute for Court of Law

A new Section 89 has also been introduced in the Code of Civil Procedure through Code of Civil Procedure (Amendment) Act, 1999. This provides for settlement of disputes outside the Court. According to this provision where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. Where a dispute has been referred for arbitration or conciliation, according to clause (a) of Sub-Section (2), the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

Thus, Section 89 of CPC trumpets that all the cases which are filed in court need not necessarily be decided by the court itself. It confirms the view that arbitration is an equally competent and effective way of resolving disputes inter parties which is evident from the section 5 of the Act also which allows judicial intervention only in particular circumstances which are specifically permitted by the Act itself.

Handicapped Arbitral Tribunal

Thus, it is evident that the Parliament has, in its best foresight, equipped and empowered the arbitral tribunal to deliver justice like a court of law but without getting infected by the germs of unending delay and unsolvable complexity of procedures.

But there are some circumstances or type of cases in which an arbitral tribunal finds itself disabled to dispense justice some of which are discussed as under:

Enforcement of Interim measures

Interim measures are ordered by courts of law to anticipate the final judgment on the merits for a certain period so as to ensure that it will be possible to enforce it. These are enforced only for a short period stretching upto the outcome of final judgment. Section 17 of the Act also provides for passing of interim measures. It reads as under:

“Interim measures ordered by arbitral Tribunal.
17.(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute.

(2) The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered under sub-section (1).”

Here, it is to be noted that the order to take any interim measure by the arbitral tribunal may be given to only a party to the arbitration agreement but not to a third person who may be in possession of the disputed subject matter.

Even when the arbitral tribunal orders a party to the arbitration agreement u/s 17, it may bring no fruit to the applicant if the other party defies the order or refuses to comply as the arbitral tribunal has got no tooth under the Act to force the party in defiance. The Act provides for enforcement of final and interim awards but completely forgets to talk about interim measures. As per Hofeld’s analysis power in one party must have its correlative liability in another party otherwise the said power is no power.

Principle of Res-judicata

The Act empowers a party to get protection of interim measures from a Court of law u/s 9 at any time before, during and even after the making of the arbitral award but before it is enforced. The Act also provides for seeking orders of interim measures through the arbitral tribunal itself during the arbitral proceedings u/s 17. One party may first of all request the arbitral tribunal for a particular interim measure and in case of dismissal of such request there, it may appeal to the court u/s 37(2) of the Act for its reversal or may also approach it afresh u/s 9 of the Act. In the later case, this may result into defiance of principle of res-judicata and ultimately into longer delays. The principle as provided in section 11 of the CPC would not be of any help to the opposite party as it bars a court of law not an arbitral tribunal from trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. It may happen vice-versa also.

Necessary and proper parties

There is a concept of necessary party and proper party in civil suits. The distinction between the two is that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.[2]. Rule 10(2) of Order 1 of the CPC also indicates as to who is to be termed as a necessary or a proper party. This provision empowers the court to add the name of any person, namely, (i) who ought to have been joined and (ii) whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the issues involved in the suit.

Before an arbitral tribunal presided over by a sole arbitrator, the following situation emerged. There was a partnership firm holding certain properties in its partners’ names which were to be used for the firm’s business. One of the partners bought certain properties in the names of his family members out of the partnership funds. There was an arbitration agreement between partners to refer all the future disputes to arbitration. Disputes arose and, as per the arbitration agreement, were referred to the arbitral tribunal. While determining the scope of the dispute, it became necessary to fix the properties bought from the partnership funds so as to be divided among the partners eventually. One party referred to a certain property which was standing in the name of family members of another partner. But the question arose that if the arbitral tribunal held to bring that particular property within the purview of disputed properties what would be the recourse open to the arbitral tribunal if the owner of that property refuse to submit himself to the arbitral tribunal’s jurisdiction for trial. Like a Court of law, if the Tribunal proceeds ex-parte and decrees the suit against the said owner, he may again refuse to transfer the property in favour of awardee putting him at the beginning end of rope of litigation.

There is another situation where a suit is instituted in a court of law by A against B. During the proceedings, the Court makes C, a Government authority, as the proper party just to seek some information or clarification which are maintained by it. Subsequently, both A and B agree to refer the dispute to arbitral tribunal for final adjudication. In this situation also C, being not bound by the arbitration agreement, may refuse to appear before the arbitration tribunal in the capacity of proper party which may handicap the arbitral tribunal to decide the dispute.

Third party

Some High Courts have amended the CPC to provide for third party procedure. For example, the High Court of Bombay has added in Order 8, after the existing rule 10 rules 11 to 30 out of which rule 23 says that where in a suit a defendant claims against any person not already a party to the suit either that he is entitled to contribution or indemnity, or that he is entitled to any relief or remedy relating to or connected with the subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff, or that any question or issue relating to or connected with the subject-matter of the suit is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the Third Party or between any or either of them, he may apply to the Court for leave to issue a notice to that effect.

But this is the limitation of the arbitral tribunal. Section 2(1)(h) of the Act defines “party” to mean a party to an arbitration agreement. An arbitrator or an Arbitral Tribunal under the scheme of the Act is not statutory. It is a forum chosen by the consent of the parties as an alternate to resolution of disputes by the ordinary forum of law courts. The essence of arbitration without assistance or intervention of the court is settlement of the dispute by a tribunal of the own choosing of the parties. Two things are, therefore, of essence in cases: firstly, the choice of the tribunal or the arbitrator; and secondly, the reference of the dispute to the arbitrator. Both should be based on consent given either at the time of choosing the arbitrator and making reference or else at the time of entering into the contract between the parties in anticipation of an occasion for settlement of disputes arising in future. The law of arbitration does not make the arbitration an adjudication by a statutory body but it only aids in implementation of the arbitration contract between the parties which remains a private adjudication by a forum consensually chosen by the parties and made on a consensual reference[3]. Thus a third party who was not a party to an agreement cannot be compelled to join the arbitration proceedings.

Mis-joinder or non-joinder of parties

Order 1 of the CPC provides for joinder of several persons as plaintiffs and/or defendants in the same cause of action. Where a son seeks to challenge several alienations of his father as not binding on the joint family, he can file one suit against all the alienees under this rule[4]. The law is settled that in a suit for partition even strangers might be made parties if their presence is necessary to effectively decide all the points in issue between the parties[5]. But this way of adjudication is not possible in case of arbitration as those strangers are not bound to appear before the arbitral tribunal being not the signatory to the arbitration agreement with son.

Ex-parte orders


Order 39 of the CPC empowers a litigant to seek ex-parte stays from court of law in those matter where informing the other side may frustrate the whole purpose of the suit. This is a discretionary power of the courts guided by the judicial principles. However, the Arbitral Tribunal has been kept handicapped to answer such a request from a party.

Automatic stay of execution of award

Section 36 of the Act provides that the award rendered by the arbitral tribunal shall be enforceable under the Code of Civil Procedure, 1908 (V of 1908) in the same manner as if it were a decree of the Court. But the conditions precedent are that the time for making an application to set aside the arbitral award under Section 34 should have expired, or such application having been made, should have been refused. Thus, it is clear that as soon as a party files an application u/s 34 of the Act to set aside the award, the execution of award gets stayed unconditionally and for uncertain time.

Preservation of record

An Arbitral Tribunal’s order attains finality if not appealed within the limitation period so provided in the Act. The record of such litigation may be required in future litigation between the same parties or with third party touching the same subject matter. Unlike a Court of Law, Arbitral Tribunal is not supposed to preserve the record of the litigation after its final adjudication by the Act. Another problem may arise about the disposal of original documents produced by the parties during the trial.

Declaration of the final judgment

On of the attributes of the arbitration is that parties’ private disputes do not become public as in a court of law, open and accessible to all. But, others’ future plans and policies may be affected by the final outcome of the arbitration proceedings. For example: a partnership firm is dissolved or awarded to one of the partners through an arbitral judgment. The public has all rights and interests to reformulate its future conduct or behavior with reference to the new firm. But, the Act shows light neither to the Tribunal to air and publish its award nor to the public to access the judgment. Others even cannot smell that any dispute arose, tribunal was formed and judgment was passed.

Conclusion

Becoming of Arbitral Tribunals a true substitute of courts of law requires further pondering over several critical issues, including a few discussed above. Globalization and commercialization have already tightly hugged India in their strong arms. It is high time when lawmen sit, diagnose and operate upon the crippled limbs of the newly born Arbitration and Conciliation Act, 1996.

© Praveen Kumar Jain, Advocate, Supreme Court of India, Email: jainclc@gmail.com; Mobile: 98914 87092
[1] M.A. Sujan: Law of Arbitraton, 1994 Ed., page 4.
[2] See Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, AIR 1963 SC 786.
[3] Dharma Prathishthanam v. Madhok Construction (P) Ltd.,(2005) 9 SCC 686, at p. 693
[4] Udmiram v. Balramdas, 1955 ILR Nag 744, AIR 1956 Nag 76.
[5] Ranjit Kumar v. Murari Mohan, AIR 1958 Cal 710.