ISSUE -3 (FEBRUARY 22- FEBRUARY 28)




VOX IURA - Issue 3
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SUPREME COURT CASES


1. UPSC EXAMS: SC DISMISSES WRIT PLEA SEEKING ANOTHER CHANCE TO ASPIRANTS

The Supreme Court on Wednesday dismissed a plea by Union Public Service Commission (UPSC) aspirants, whose last attempt to crack the civil services exam was marred by COVID-19, for another chance in 2021.

The court said every candidate who took the exam last year suffered “one way or the other”.

The petitioners had argued about the “overwhelming” impact of coronavirus in the run-up to the civil services preliminary exam held on October 4, 2020. They said their access to study resources had shrunk with the closure of libraries and coaching centres during the lockdown. Some of them had fallen sick while others had cared for the sick during the pandemic months, leaving little or no time for study.

“What is being claimed and prayed for under the guise of COVID-19 pandemic is nothing but a lame excuse in taking additional attempt to participate in the Civil Service Examination 2021,” a Bench led by Justice A.M. Khanwilkar said in the judgment.

‘Cascading effect’

Justice Ajay Rastogi, who authored the 40-page verdict for the Bench also comprising Justice Indu Malhotra, said any “indulgence” shown to a few would be against the scheme of the Civil Services Examination (CSE) Rules of 2020 and trigger a “cascading effect” on other public exams.

“If this court shows indulgence to a few who had participated in the 2020 exam, it will set down a precedent and also have cascading effect on examinations in other streams, for which, we are dissuaded to exercise plenary powers under Article 142 of the Constitution,” Justice Rastogi noted.


2. MARRIED HINDU WOMAN CAN ENTER 'FAMILY SETTLEMENT' WITH HER HEIRS ON PARENTAL SIDE: SUPREME COURT

Case Name: KHUSHI RAM vs. NAWAL SINGH [CIVIL APPEAL NO.5167 of 2010]

The Supreme Court bench comprising of Justices Ashok Bhushan and R. Subhash Reddy has observed that ‘family settlement’ can be entered by a Hindu woman with her heirs on her parental side. The SC bench referred to Ram Charan Das v. Girjanandini Devi and ors. case. The court noted that every party taking benefit under a family settlement must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim.


HIGH COURT CASES


1. CONSTITUTIONAL COURT CANNOT BE MUTE SPECTATOR TO RAO’S HEALTH DETERIORATING IN GOVT HOSPITALS: BOMBAY HIGH COURT IN VARAVARA RAO BAIL ORDER

The Bombay High Court granted temporary bail to 82-year-old poet and Bhima Koregaon accused Dr. Varavara Rao for a period of six months on a bail bond of Rs. 50,000 (Dr.P.V. Varavara Rao v. NIA & Others). While granting relief, the Bench of Justices SS Shinde and Manish Pitale opted for a humanitarian approach while dealing with the case. The Bench felt that as a constitutional court, it cannot remain a mute spectator to Rao’s medical condition. The Court further added that merely because Rao is an accused in cases pertaining to serious offenses, his health condition cannot be ignored. On the issue of whether the High Court can exercise its writ jurisdiction to release an accused from custody even when a regular bail application has been rejected on merits under UAPA, the Bench answered in the affirmative. It held that taking any other view in the matter would amount to diluting rights available to prisoners to claim relief on health grounds under Article 21 particularly when material available on record indicates that continued incarceration of such persons would amount to endangering their life.


2. COURTS BURDENED WITH DISHONEST LITIGANTS DODGING DEBTS BY RESORTING TO NON-EXISTENT, MERCY JURISDICTION OF WRIT COURTS: MADRAS HIGH COURT

Far too often, courts are burdened with dishonest litigants trying to dodge debts by resorting to non-existent, mercy jurisdiction of writ courts, the Madras High Court remarked recently while imposing costs of Rs.1 lakh on one such frivolous petitioner (P Sudhakar v The Union Secretary, Ministry of Finance and ors). It is high time that such frivolous litigations are brought to an end and the dishonest debtors appropriately rewarded, the Bench opined. In this case, the petitioner had sought directions from the Court to a bank so that they may consider his representation for an amicable settlement in a matter concerning repayment of a loan. The Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy dismissed the petition with the observation that the petitioner may pursue his grievance before the appropriate forum. In doing so, the Court also directed the petitioner to pay Rs.1 lakh as costs to the respondent bank.


3. AIDED SCHOOL TEACHERS CANNOT CONTEST IN ELECTIONS: KERALA HIGH COURT

Case Name: Moosa Vs. State of Kerala

The Kerala High court held that the teachers of the aided school cannot contest in the election to the local bodies, including State legislative Assembly and Parliament. The Kerala HC declared Section 2(iv) of the Legislative Assembly (Removal of Disqualifications) Act unconstitutional as it was ultra vires to the right provided under Article 21A (Right to Education).

Section 2(iv) – A person shall not be disqualified for being chosen as and for being a member of the Legislative assembly of the State of Kerala that he holds an office in any educational office other than a Government institution.

Referring to Article 102, 191, 234F, and 243 V of the Indian Constitution, the HC made the following observations:

  • A teacher can never discharge the duty as a teacher, piecemeal, or as a part-time engagement

  • Political Right of Teachers Cannot Override Children's Fundamental Right To Education

  • A Teacher can never devote his/her attention to the cause of the students, during the election period.

OTHER ISSUES

1. PRESIDENT’S RULE IN PUDUCHERRY NOTIFIED

Context:

According to the notification by the Ministry of Home Affairs, President’s Rule has been imposed in the Union Territory of Puducherry and the Legislative Assembly is placed under suspended animation.

Details:

The Union Cabinet had approved a proposal by the Ministry to dissolve the Assembly and impose President’s Rule in the Union Territory.

Note:

Union Territories are administered in accordance with the provisions of Articles 239 to 241 of the Constitution.

According to the Allocation of Business Rules, 1961, certain subjects pertaining to UTs, namely Legislative matters, Finance and Budget and Services, have been allocated to the Home Ministry.


CLAT QUESTIONS


1. Which of the following is true in context of the scheme provided under Article 16 of the Indian Constitution, relating to reservation in promotion?

a) Reservation in promotion can only be granted to the class of citizens mentioned under Article 16(4).

b) Reservation in promotion cannot be granted to the class of citizens mentioned under Article 16(1).

c) The scheme of reservation in promotion can be extended to any class of citizens under the scheme of Article 16(1).

d) Reservation in promotion defeats the scheme of Article 16(1) and Article 15(1).

2. What is the meaning of the "catch up" rule associated with the matters of seniority in reservation in promotion?

a) If the junior candidate promoted on the basis of reservation gets promoted to further grade by the time senior general category candidate is promoted to earlier grade, the question of seniority doesn't arise.

b) A reserved category candidate promoted on the basis of reservation earlier than his senior general category candidates in the feeder category shall become junior when general category senior candidate too gets promoted.

c) The candidate promoted to higher grade on the basis of reservation remains senior even if his senior promoted to the same grade.

d) None of the above.

3) The Article 16(4A), provides for which of the following?

a) Catch-up rule

b) Carry forward rule

c) Consequential senior.

d) All of the above.

4) The scheme of reservation in promotion is limited to which of the following as per the text of Article 16(4A)?

a) Schedule caste and schedule tribes

b) Backward class of citizens

c) PWD candidates

d) All of the above

5) Creamy layer concept is applicable to

a) All reservations

b) Sc ST reservation

c) OBC reservation

d) Only horizontal reservation.


JUDICIARY


1. Which of the following is not true in respect of contract of pledge?

(A) A Pawnee cannot retain the goods for recovering extraordinary expenses

(B) A Pawnee can exercise the right of lien and right to sue simultaneously

(C) A Pawnee may sell the goods on default of the pawnor without giving notice to the pawnor

(D) A Pawnee has a security interest which can be enforced even against the State

2. If a promisee accepts an anticipatory breach committed by the promisor, then

(A) The promisee need not perform his part of the contract but he cannot claim damages from the promisor

(B) The promisee need not perform his part of the contract but he can claim damages from the promisor only after the date of performance

(C) The promisee need not perform his part of the contract but he can claim damages from the promisor without waiting till the date of performance

(D) The promisee must perform his part of the contract before claiming damages, from the promisor.

3. Can the legal representative of a deceased person negotiate a negotiable instrument payable to order by delivery only which was endorsed by the deceased but not delivered by him?

(A) The legal representative can negotiate the instrument by delivery only

(B) The legal representative has to re-endorse it and deliver the instrument to effect a valid transfer

(C) A negotiable instrument endorsed by a deceased cannot be transferred any further

(D) A negotiable instrument endorsed by a deceased is a void instrument.

4. Amol issues a cheque for Rs 1000/- to an NGO as donation. The cheque was returned unpaid with reasons "Funds Insufficient" Choose the correct option :

(A) The NGO can file a criminal complaint against Amol under sec-138 of N.I Act

(B) No criminal complaint can be filed under section 138 of NI Act as the cheque was not issued for any discharge of legally enforceable debt

(C) Criminal complaint can be filed only if it was returned for the second

(D) time The NGO can file criminal complaint only after it has given a 15 days' notice to Amol to pay the amount.


5. Contribution to the mortgage debt means___________payment of debts to different properties of distinct and separate rights.

(A) Equal

(B) Distinct and separate

(C) Proportionate

(D) Rateable


ANSWERS

CLAT

1.Option C

2.Option B

3.Option C

4.Option A

5.Option C


JUDICIARY

1. Ans: C

Explanation

According to Section 175 the Pawnee is entitled to receive from the pawnor extraordinary expenses incurred by him for the preservation of the goods pledged. The pertinent thing to note here is the usage of the word receive which states the position that the pledgee cannot retain the goods for the extraordinary expenses.

According to Section 176 of Indian contract act, 1872 if the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged,

i. the Pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; (or)

ii. He may sell the thing pledged, on giving the pawnor reasonable notice of the sale.

A Pawnee has to right to sell the thing pledged and this right is exercisable after notice off intent of sale and thereafter the Pawnee is entitled to sell the thing on any time of his will.

The later part of the section further states that if after sale the amount received is less than the debt then the pawnor would still be liable and when the proceeds received after sale is higher than the amount to be paid under debt then it is the duty of the Pawnee that he pays the surplus back to the pawnor. After the sale the right of the pawnor of re-delivery is extinguished but his right to redeem continues up to sale.

In the case of Prabhat Bank v. Babu Ram, the Allahabad High Court said, “what is contemplated by section 176, is not merely a notice but a reasonable notice, meaning thereby a notice of intended sale of the security by the creditor within the certain date so as to afford an opportunity to the debtor to pay an amount within the time mentioned in the notice”. “A notice of the character contemplated by section 176 cannot be implied. Such notice has to be clear and specific in language…”

2. Ans: (B)

Relevant Provision:

The anticipatory breach of contract is specified under Section 39 of the Indian Contract Act, 1872. It states: “When a party to a contract has refused to perform or disable himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, but words or conduct, his acquiescence in its continuance.”

Explanation:

When a promisor refuses to perform his promise leading to an anticipatory breach of contract, the promisee is excused from performance or from further performance of his obligations. Also, he can either: Treat the contract as cancelled and file a suit against the other party for damages arising from the breach.

An anticipatory breach is a breach of contract before the time of performance.

So, if a promisor denies performing his promise and signifies his unwillingness before the time for performance, then it is an anticipatory breach of contract.

Illustration:

Peter enters into a contract with John on June 01, 2018. As per the contract, Peter agrees to sell his guitar to John on June 10, 2018, for an amount of Rs 5,000. However, he sells this guitar to Oliver on June 07, 2018. Hence, it is an anticipatory breach of contract due to Peter’s conduct.

3. Ans: (B)

Relevant Provision

Section 57 of the Negotiable Instruments Act, 1881 - Legal representative cannot by delivery only negotiate instrument endorsed by deceased.

Explanation:

The legal representative of a deceased person cannot negotiate by delivery only a promissory note, bill of exchange or cheque payable to order and endorsed by the deceased but not delivered.

According to Section 13 (a) of the Act, “Negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer, whether the word “order” or “ bearer” appear on the instrument or not.”

Modes of negotiation:

Negotiation may be effected in the following two ways:

1. Negotiation by delivery (Sec. 47): Where a promissory note or a bill of exchange or a cheque is payable to a bearer, it may be negotiated by delivery thereof.

Example: A, the holder of a negotiable instrument payable to bearer, delivers it to B’s agent to keep it for B. The instrument has been negotiated.

2. Negotiation by endorsement and delivery (Sec. 48): A promissory note, a cheque or a bill of exchange payable to order can be negotiated only be endorsement and delivery.

Unless the holder signs his endorsement on the instrument and delivers it, the transferee does not become a holder. If there are more payees than one, all must endorse it.

4. Ans: (B)

Relevant Provision:

Section 138 of Negotiable instruments act states that, “Where any cheque Drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liiability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both.”

Basic ingredients of sec.138

The ingredients of the offence as contemplated under Sec.138 of the Act are as under :

1. A cheque must have been drawn for discharge of existing Debt or liability.

2. Cheque must be presented within 3 months or within Validity period whichever is earlier.

3. Cheque must be returned unpaid due to insufficient funds Or it exceeds the amount arranged.

4. Fact of dishonour be informed to the drawer by notice Within 30 days.

5. Drawer of cheque must fail to make payment within 15 Days of receipt of the notice.

A mere presentation of delivery of cheque by the accused would not amount to acceptance or liability. Complainant has to show that cheque was issued for any existing liability debt or liability. Thus if cheque is issued by way of gift and it’s gets dishonored of offence u/s. 138 will not be attract.

Explanation to Section 138 is abundantly clear that the dishonored cheque must have been received by the complainant against a “legally enforceable debt or liability”, it was held in Nanda v. Nandkishor, 2010

5. Ans: (D)

Relevant Provisions:

Section 81 and 82 of Transfer of Property Act, 1882 deals with the Rule of Marshalling and contribution respectively.

Explanation:

Section 82 contemplates a situation in which there are two or more than two mortgagors who take a common debt by mortgaging different properties in one property. Each mortgagor or debtor must be liable to contribute to such common debt. When two or more properties of different persons are mortgaged to secure a loan, the mortgagee has the right to recover the debt from the property of any one person.

The meaning of the rule of the contribution means providing money for a common fund.

This doctrine is based on equity and public policy. It is based upon maxim “Question commodum senator debted onus”. He who enjoys the benefits must also bear the burden.”

Rules of Contribution

1. The mortgaged property belongs to two or more persons.

2. One property is mortgaged first and then again mortgaged with another property.

3. Marshaling supersedes contribution.

Illustration:

A, B, C mortgage their own properties to E for net debt of Rs. 30,000 jointly. Here all the three properties are payable for the payment of such debt viz the payment will be done from three properties. He cannot recover complete debt from one property. If he does so, however, the rest properties will be liable to payment of their shares. (Hari Raj Singh v/s Ahmaduddin Khan 1897 Allahabad 545).


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