Certified copy of unmarked document can be given- Madras High Court Judgment

 

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Madras High Court

K. Nagarajan vs K.S. Ramasamy, S/O Sennimalai ... on 17 July, 2003

Author: S A Kumar

Bench: S A Kumar

ORDER S. Ashok Kumar, J.

1. The plaintiff is the petitioner. The plaintiff has filed the suit O.S. No. 430/2002 on the file of the District Munsif Court, Karur for permanent injunction against the two defendants - husband and wife.

2. The defendants filed I.A. No. 577/2002 with a prayer to send for certain documents from the custody of the District Court. Along with the application, they also filed a copy of the document called `complaint' given by the defendants to the Sub-Court, Karur.

3. The plaintiff filed a copy application on 6.11.2002 requesting a copy of the complaint dated 30.10.2002 mentioned in the I.A. No. 577/2002 filed by the defendants. On the same day, the learned Additional District Munsif returned the copy application with the following remark.

`How to petitioner is entitled to get c/c of the document. Since it has not mark.

Sd/ A.D.M.

6.11.2002' Once again on 12.11.2002, the plaintiff represented the copy application with the following endorsement:

`Under Rule 127 of C.R.P. the certificate copy can be obtained without being marked as on exhibit. Hence certificate copy may be issued.

Sd/ 12.11.02.' The learned Additional District Munsif again returned the copy application with the following remark:

`Retd.

This E.A. Retd. on that reffred as above is not applicable to this C.A.

Sd/ A.D.M.

14.11.02.' The rejection of the copy application filed by the learned Additional District Munsif is the cause for this revision petition.

4. The learned counsel for the revision petitioner contends that under Order XI Rule 15 of C.P.C. a party has got the right to inspect any document produced by the opposite party in Court and under Rule 127 of Civil Rules of Practice, the Court is bound to grant copy of the document produced in Court, whether it forms part of the record of the suit or not.

5. The learned counsel for the respondents Ms. Subraja would strenuously contend that under Rule 62 of Civil Rules of Practice only documents referred to in the plaint or written statement and filed along with the above pleadings or thereafter alone can be granted copies if required by the other side and not all the documents filed.

6. Heard the rival contentions of both side and also perused the materials available on record.

7. The complaint dated 30.10.2002 given by the defendants to the Subordinate-Judge, Karur as admitted by the learned counsel for the respondents was to keep the sale agreement produced in previous proceeding in safe custody for the purpose of marking the same in this case also.

8. The learned counsel for the revision petitioner contends that it contains certain defamatory, false and malicious allegations against the plaintiff and probably, the plaintiff may prefer to take legal action for giving such a complaint.

9. We are not concerned about the contents of the complaint or the intention of the complainant. What we are concerned is whether a party is entitled to get the certified copy of a document produced in Court, but not marked and which has not become a part of the record of that case.

10. What is a `proceeding' has been defined in rule 2(10) of the Civil Rules of Practice and Circular Orders.

`Proceeding' includes all documents presented to or filed in court by any party, or commissioner or other officer of court, other than documents produced as evidence;' Rule 62 of Civil Rules of Practice permits a party to inspect and obtain a copy of any document received or referred to in a plaint or written statement and filed in court therewith or thereafter.

11. In this case the document was not filed either with the plaint or with the written statement, but along with the I.A. petition in I.A. No. 577/2002. The I.A. itself was filed to send for some other documents in which the defendants have enclosed a copy of the complaint dated 30.10.2002 said to have been given to the Subordinate-Judge, Karur. Therefore, it is clear that the complaint dated 30.10.2002 of the defendants have been produced in Court by the defendants themselves along with the I.A. No. 577/2002.

Under Rule 63 of Civil Rules of Practice,`every party and his pleader desiring to inspect any proceeding filed in court by him or any other party, or a commissioner or officer of court, in the suit, appeal or matter, to which, he, or his client is a party, shall present a memorandum to the chief ministeretial officer specifying the proceeding of which inspection is required and inspection will be allowed without the payment of any fee, during the pendency of such suit, appeal or matter.' In Chapter VII while dealing with Copies and Copyists establishment in Rule 127 of Civil Rules of Practice, it is defined as follows:

`When a person is entitled to obtain a copy of a proceeding or document filed in or in the custody of the court, he may present an application therefor to the superintendent of copyists or where there is no such officer, to the chief ministerial officer in person or by his pleader or the latter's authorised clerk between the hours of 11.30 a.m. and 3.p.m. If the proceeding of document has been sent to another court, the application may at the option of the applicant, be forwarded to the said court for compliance, or be returned to him, for presentation to the said court:

12. So far as this case is concerned, there is no dispute that the petitioner filed an application for grant of certified copy. But, the learned Additional District Munsif, returned the application on the sole ground that it has not been marked. Even after the petitioner resubmitted his application by making endorsement that he is entitled under Rule 127 of Civil Rules of Practice, with the same reason once again the copy application has been returned.

13. In JAGATBHAI PUNJABHAI PALKHIWALA AND OTHERS V. VIKRAMBHAI PUNJABHAI PALKHIWALA AND OTHERS while dealing with such a situation the Gujarat High Court has held as follows:

`5.This reason given by the learned Trial Judge is not correct and is too technical. If the inspection of the documents could be granted by the court, there is no reason why the persons who were permitted to take inspection cannot take zerox copy of the same. The purpose of the inspection is to know and study the documents. The person who takes inspection can also take notes and even make copies of the same. In view of very large number of documents, the petitioners wanted that they may be permitted to take xerox copies of the same. Their say is that instead of taking inspection and looking at the documents by their own-eyes, they would like to have their view from the camera eye. The request for xerox copies at their own cost is reasonable. Once the court has granted inspection, this request is merely to make that inspection more effective. By allowing the plaintiffs to take xerox copies, the court is neither verifying nor certifying them to be true and correct copies. The plaintiffs will be taking copies for their own purpose in order that they can make effective and detailed study and have proper consultation with their lawyers. That would not only serve the cause of the petitioners, but will also enable the Counsel to render proper assistance to the court, since the court is not verifying or certifying the correctness of the copies, there is no need of the documents to have become part of the record. Since the documents happen to be in the custody of the court, the parties cannot take xerox copies of the same without permission of the court. But that does not mean that the court can refuse such permission only on the ground that they have not become part of the record. The reason given is fundamentally erroneous and merely technical.

6. If the xerox copies are not permitted to be taken, the purpose of the inspection will become ineffective and would be frustrated. No harm or prejudice can occur to the other side if the xerox copies are permitted to be taken. However, only care is required to be taken to see that while the xerox copies are being taken, an officer of the Court appointed by the trial court remains present and retains the custody of the documents and the representative of the other side is also allowed to remain present so that no allegation is made in future. The cost and remuneration of the court officer appointed for that purpose will have to be borne by the petitioners and the amount will have to be deposited by them as may be quantified by the trial court. The defendants would also be entitled to have the same facility subject to the similar conditions.'

14. In any suit apart from the documents marked, there is likelihood of presence of other unmarked documents like warrant issued to the Commissioner or notice given to the Commissioner by the parties etc. Assuming that a party disputes receipt of notice issued by the Advocate Commissioner, then notice said to have been given by the Commissioner will become an important document and certainly copy of such notice shall be required by the other party who claims that actually notice has been given to the party who disputes it. Though the notice given by the Commissioner to the party may not be a part of the record as far as the suit is concerned, since it is not marked as an exhibit in the suit, still a notice can become necessary for a particular party for which he may require copy. Therefore, the document produced in Court even though not marked as a document in evidence in a suit, still necessity may arise for requirement of a certified copy of such a document. That is why under Order 62 and Order XI Rule 15 of Civil Rules of Practice, it is clearly mentioned that any document produced in Court can be inspected. The terms mentioned in Rule 62 and Order XI Rule 15 of Civil Rules of Practice are wider in nature, in the sense that the documents referred are not only marked but also produced in Court.

15. In the above circumstances, I hold that the order of the learned Additional District Munsif, Karur in rejecting the prayer of the petitioner to grant certified copy of the document produced by the defendants in Court along with the petition in I.A. No. 577/2002 is not correct and the said order is set aside and the learned Additional District Munsif, Karur is directed to give a copy as prayed for.

16. The C.R.P. is allowed. No costs. Consequently, C.M.P. No. 18081/2002 is closed.

Senior Civil Judge Courts to entertain Original Petitions filed under the Indian Succession Act

 GOVERNMENT OF ANDHRA PRADESH 

 ABSTRACT

-----------------------------------------------------------------------------------------------------------------------------

Courts – Indian Succession Act – Issuance of Succession Certificates in succession Ops – Conferment of powers on Senior Civil Judge Courts to entertain Original Petitions filed under the Indian Succession Act, 1925 – Notification - Orders – Issued

LAW (LA&J-HOME-COURTS-C2) DEPARTMENT 

 G.O.Ms.No. 11                                                             Dated: 08-02-2012.

 Read : From the Registrar General, Andhra Pradesh High Court, Hyderabad, letter No.Roc.No.408/SO-3/2009, dated:01-11-2011.

 *** 

 ORDER 

The Registrar General, High Court of Andhra Pradesh, Hyderabad, in his letter read above, has forwarded the Draft Notification with regard to the Conferment of powers on Senior Civil Judge Courts to entertain Original Petitions filed under the Indian Succession Act, 1925. 

 2. The Government after careful examination of the matter have decided to approve the Draft Notification with regard to the Conferment of powers on Senior Civil Judge Courts to entertain Original Petitions filed under the Indian Succession Act, 1925. 

 3. Accordingly, the following Notification will be published in an Extraordinary issue of the Andhra Pradesh Gazette. 

 NOTIFICATION 

In exercise of the powers conferred by sub-section (1) of section 388 of the Indian Succession Act, 1925 (Central Act 39 of 1925) and of all other powers here unto enabling the Governor of Andhra Pradesh hereby confers powers on all the Principal Senior Civil Judges, where there are more than one Senior Civil Judge’s Court and Senior Civil Judge’s Court where only one Court is functioning at such station to entertain original petitions filed under the Indian Succession Act, 1925 and shall exercise the functions of District Judge under Part-X of the said Act within their respective jurisdictions. 

                             [BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA                                         PRADESH]   A.SHANKAR NARAYANA, SECRETARY TO GOVERNMENT,                                      LEGISLATIVE AFFAIRS & JUSTICE.

ABUSE AND MISUSE OF POWERS BY POLICE - RIGHTS OF GENERAL PUBLIC

 

RIGHT TO WAY- AN EASEMENT RIGHT

 

Money suit based on pronote, Suit for recovery of arrears of rent, Suit for specific performance-Court fee calculation, limitation and the Jurisdictional court-

 

Dishonour of which cheque is an offence under NI Act

 

Various types of Return Endorsements on Cheque Return Memos and their criminal liability

 

COURT FEE , JURISDICTION AND LIMITATION IN SUIT FOR PARTITION, SUIT FOR INJUNCTION AND SUIT FOR EASEMENT

 

If police fail to register your complant, what to do ?

 

Charge Sheet/Final Report -Points to be kept in mind while filing and scrutiny

 

No Need To File Separate Final Decree Proceedings In Partition Suit; Trial Courts Should Proceed Suo Motu Soon After Passing Preliminary Decree: Supreme Court

 Case: Kattukandi Edathil Krishnan vs Kattukandi Edathil Valsan

Coram: Justices S. Abdul Nazeer and Vikram Nath

Case No.: CA 6406­-6407 OF 2010

Court Observation: “We direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.”

“This practice is to be discouraged as there is no point in declaring the rights of the parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree”

A preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed. Thus, fundamentally, the distinction between preliminary and final decree is that:­ a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been conducted and rights of the parties being finally determined, a final decree incorporating such determination needs to be drawn up.

“Since there is no limitation for initiating final decree proceedings, the litigants tend to take their own sweet time for initiating final decree proceedings. In some States, the courts after passing a preliminary decree adjourn the suit sine die with liberty to the parties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18. However, this practice is to be discouraged as there is no point in declaring the rights of the parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree.”

We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.

The trial of offence under Section 16 (1) (a) punishable under Section 27 (d) of the Drugs and Cosmetics Act remains with the Magistrate's Court

 Telangana High Court

M/S. Gaba Pharmaceutical Pvt Ltd. ... vs Union Of India Rep., By Asst., ... on 4 June, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G. SRI DEVI

                       CRL.P.No.6949 of 2016

ORDER:

This Criminal Petition is filed, under Section 482 of the Code of Criminal Procedure, by the petitioners/A-1 to A-4 seeking to set aside the docket order, dated 19.04.2016, passed in D.S.C.No.2 of 2013 on the file of the I-Additional Metropolitan Sessions Judge, Hyderabad and consequently direct the I-Additional Metropolitan Sessions Judge, Hyderabad, to send back the said case to the Court of the VII-Additional Chief Metropolitan Magistrate, Hyderabad, to conduct trial as Calendar Case.

Heard Sri Gangaiah Naidu, learned Senior Counsel appearing on behalf of Ms.G.Bhanu Priya, learned Counsel for the petitioners and Ms. G.Anjali Agarwal, learned Counsel appearing for the respondent and also perused the record.

Learned Senior Counsel appearing for the petitioners mainly contended that the docket order, dated 19.04.2016, is ex-facie illegal and contrary to the orders passed by this Court in Criminal Petition No.2178 of 2015, dated 14.08.2015, wherein this Court remitted the said case to the Sessions Court with a specific direction to decide whether the alleged offence comes under Section 27 (a) or (c) of the Drugs and Cosmetics Act (for short "the Act") or both for retaining by him, or if it comes under Section 27 (b) and (d) to send back to the Magistrate. The learned Sessions Judge passed the impugned order stating that there is sufficient material to commence trial before the Sessions Court with alternative charge for the offence under section 27 (c) of the Act. The learned Sessions Judge ought to have assigned reasons how Section 27 (c) of the Act attracts, but he failed to assign any reason. He further submits that the material filed in this case, do indicate that the offence said to have been committed is under section 16 (1) (a) of the Act and the alleged lapse pointed out is that the subject drug is 'not of standard quality' in which event the penal Section 27 (d) of the Act would attract. In support of his contention, he relied on the judgment of the Kerala High Court passed in Criminal Revision No.1477 of 2013, wherein the High Court after considering all the provisions including the amended provisions, ruled that it is only the Magistrate vested with the jurisdiction to try the offences under 'not of standard quality' and the penal Section is 27 (d) of the Act. Therefore, it is made crystal clear that the allegation of 'not of standard quality' is triable by Magistrate only, even after amendment. Therefore, prayed to allow the Criminal Petition.

Learned Counsel appearing for the respondent would submit that certain offences under the Drugs and Cosmetics Act, 1940 were amended and made triable by the Court of Sessions. She also submits that the Additional District Judge is designated to try various offences under the Act and the petitioners cannot claim such relief in the present petition, since no other Court is competent to try those offences punishable under various provisions of the Act. She further submits that as per the judgment of the Madhya Pradesh High Court in M/s. Kalpataru Medicose Thru Narayana Prasad Sahu v. Food and Drug Administration Thru. Ashok Goyal1 the Criminal Petition is liable to be dismissed.

Before proceedings further it would be useful to refer to Section 16 of the Act, which deals with the standard quality.

"16. Standards of quality.- (1) For the purposes of this Chapter, the expression "standard quality" means -

(a) In relation to a drug, that the drug complies with the standard set out in the Second Schedule, and

(b) In relation to a cosmetic, that the cosmetic complies with such standards as may be prescribed."

As seen from the complaint filed by the respondent, the Test Report dated 20.03.2012 issued by the Government Analyst, CDL, Kolkata reveals that the sample was declared as "Not of standard quality" as the sample does not confirm to claim with respect to "Niacinamide Content". Section 16(1)(a) of the Act stipulates that drugs that comply with the standards set out in the Second Schedule shall be certified to be of "standard quality" . The penal provision for contravention of section 16 (1) (a) of the Act is punishable under section 27 of the Act, which reads as under:

"27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter whoever, himself or by any other person on his behalf, manufactures for sale or for M.C.C.No.11940 of 2016, dated 10.01.2017 distribution, or sells, or stocks or exhibits or offers for sale or distributes-

(a) any drug deemed to be adulterated under Section 17A or spurious under Section 17B or which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to a term of life and with fine which shall not be less than ten thousand rupees:

(b) any drug--

(i) deemed to be adulterated under Section 17A, but not being a drug referred to in clause (a), or

(ii) without a valid licence as required under clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees;

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year and of fine of less than five thousand rupees;

(c) any drug deemed to be spurious under Section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than five thousand rupees:

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three years but not less than one year:

(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine:

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment imposes a sentence of imprisonment for a term of less than one year."

Admittedly, the allegations made in the complaint itself would come neither under adulterated drug nor spurious drug and it is only "not of standard quality". Contravention under Section 18

(a) (i) of the Act, for having manufactured and distributed the "Not of Standard Quality" Drugs is punishable under Section 27 (d) of the said Act. Therefore, the offence committed by the petitioners is only under Section 27 (d) of the Act but not under Section 27 (a) or 27 (c) of the Act.

As per Section 36AB of the Act, the Special Court is constituted only for trying the offences relating to adulterated drugs and spurious drugs and Section 27 (d) of the Act is conspicuously excluded from the amendment conferring jurisdiction to Special Courts. Therefore, the trial of offence under Section 16 (1) (a) punishable under Section 27 (d) of the Act still remains with the Magistrate's Court. In the absence of vesting any jurisdiction to try the offence under Section 27 (d) of the Act, the learned Sessions Judge is incompetent to try the case. Therefore, this Court is of the view that the learned VII Additional Chief Metropolitan Magistrate, Hyderabad, alone is competent to try the offence punishable under Section 27 (d) of the Act. The learned I Additional Metropolitan Sessions Judge, Hyderabad, instead of following the procedure under Section 228 of Cr.P.C. erroneously assumed jurisdiction and passed the impugned order.

For the aforesaid reasons and having regard to the facts and circumstances of the case, the Criminal Petition is allowed and the docket order dated, 19.04.2016 passed in D.SC No.2 of 2013 on the file of the I-Additional Metropolitan Sessions Judge, Hyderabad, is hereby set aside. Further, the learned I-Additional Metropolitan Sessions Judge, Hyderabad, is directed to send back the records in D.SC No.2 of 2013 to the Court of the VII-Additional Chief Metropolitan Magistrate, Hyderabad, to conduct trial as Calendar Case.

As a sequel thereto, Miscellaneous Petitions, if any, pending in this Criminal Petition, shall stand closed.

_____________________ JUSTICE G. SRI DEVI 04.06.2021 Gsn/gkv

How to caluculate Court Fee

 

Rights of Citizens-Abuse and misuse of powers by police

 

Important Provisions of Stamp Act and Impounding of Documents

 

No application is needed for the return of the unmarked documents

 

 

Dis.No.                /Admn/2017                                       Dt. 07-12-2017.

 

 

                                            C I R C U L A R

 

Sub:- Courts – Civil – Return of un-filed documents - Certain instructions issued.

 

@ @ @

 

 

                It is brought to the notice of the undersigned that, the parties in civil cases are filing documents for the purpose of evidence in various suits or other proceedings and out of them certain documents remain unmarked for various reasons and later the parties are approaching the Courts for return of those unfiled/un-marked documents filed in such cases, and certain Courts are insisting for filing petitions for return of documents and also passing orders for return on substitution of certified copies. Thereafter, the litigant parties are filing copy applications for issue of certified copies of those documents to enable them to substitute the certified copies for the original as directed by the Courts concerned. It is observed that, the concerned section clerks are returning such copy applications with an endorsement that the unmarked documents cannot be issued as certified copies. This situation is causing serious hardship to the litigants in taking back the unmarked documents. In certain courts, the concerned bench clerks are even consigning the unfiled documents into record section without returning the same to party concerned. In order to obviate this hardship to the litigant parties, the undersigned is desirous to apprise all concerned regarding the legal position on this aspect.

 

Order XIII Rule 7 CPC

Recording of admitted and return of rejected documents:-

(1)            Every document which has been admitted in evidence or a copy thereof where a copy has been substituted for the original under Rule 5, shall form part of the record of the suit.

 

(2)          Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them.

 

 

Rule 2 of the Rules made under the Destruction of Records Act, 1917 vide R.O.C.No.9/S.O/73.

 

The relevant portion reads as under:

Un-filed documents to be kept apart and destroyed:

 

Para 1: xxxx

 

Para 2: xxxx

 

          No application is needed for the return of the documents produced which have either not been tendered in evidence or if tendered, have been rejected. It is sufficient if a receipt for their return is taken in the list with which have been put up.

 

        From the above it is clear that the statute provides clear and unambiguous provisions for return of un-filed documents in favour of parties; there is no need to insist the parties to file applications for return of un-filed documents and to substitute them with certified copies.

        In this context a Judgment of Hon'ble High Court reported in
AIR 2006 AP page 3 (Lokara Om Kumar V/S Baikan Satyanarayana) is referred where the Hon'ble High Court in para 8 held as under;

[8] As per Regulation 2, unfilled documents, which have been tendered in evidence or those documents, which have been tendered in evidence, have been rejected, have to be returned to the party who produced such documents. If those documents are not reclaimed by the party, who produced them, then only they have to be retained in the Court for a period of one year from the date of final order. This only means that there is no necessity to keep the unmarked documents in the case file. In the eventuality of the party producing the unmarked documents not reclaimed them then only such documents have to be retained in the Court for a period of one year. Therefore, the view taken by the learned Principal Junior Civil Judge, Ranga Reddy District at L.B. Nagar, is

unsustainable in law.

 

        Therefore, all the Judicial Officers working in the unit are requested to not to insist the parties for filing applications for return of unfiled documents in deviation of the statutory provisions. They have to return all the un-filed documents as per Rule 2 of Rules framed under the Destruction of Records Act as specified above without insisting to file any application. However an exception is drawn that the documents such as Pronotes, bonds etc., even though unmarked in compromise decrees/settlements before Lok Adalat etc., should be superseded and retained in the record as they become void and useless by virtue of a decree/award.  These instructions shall be followed scrupulously in order to avoid loss and hardship to the litigant public and for smooth and effective administration of justice.

 

 The receipt of circular shall be acknowledged.                                               

                                               

 

  Prl.District and Sessions Judge,

                                                                     

To,

All the Judicial Officers in the Unit.

All Bar Associations in the Unit.

 

NBWs in NI Act cases shall be executed by Police

 

The Hon’ble High Court TG and AP in a Judgment reported in 2015 (2) ALT(Crl) 193 = 2015 (2) ALD(Crl) 111 (K.Sangameshawar Vs Chand Pasha) it is ruled that neither the Code of Criminal Procedure nor in the Criminal Rules of Practice contemplate execution of N.B.Ws by the complainant. Further it is held that as per Order 447(3) in Chapter 25 of A.P. Police Manual, N.B.Ws have to executed only by the Police Officers.

Issuance of NBW in baiable cases, though accused failed to appear after receipt of summons, improper

 

KINDS OF CHEQUES

 KINDS OF CHEQUES: In Nitin Chadha vs. M/s Swastik Vegetable Products Pvt. Ltd. & Anr., 2015(3) RCR (Civil) 872 (P&H) the Hon'ble High Court explained the kinds of cheques as under: 

1. Open cheque:The issuer of the cheque would just fill the name of the person to whom the cheque is issued, writes the amount and attacheshis signature and nothing else. This type of issuing a cheque is also called bearer type cheque also known as open cheque or uncrossed cheque. The cheque is negotiable from the date of issue to three months. The issued cheque turns stale afterteh completion of three months. It has to be revalidated before presenting to the bank.

 2. Bearer cheque: Same as Open Cheque 

3. Crossed cheque: It is written in the same as that of bearer cheque but issuer specifically specifies it as account payee on the left hand top corner or simply crosses it twice with two paralled lines on the right hand top corner. The bearer of the cheque presenting it to the bank should have an account in the branch to which the written sum is deposited. It is safest type of cheques.

 4. Account Payee cheque: Same as Crossed Cheque 

5. Self cheque: A self cheque is written by the account holder as pay self to receive the money in the physical form from the brach where he holds his account. 

6. Pay yourself cheque: The account holder issues this type of crossed cheque to the bank asking the bank to deduct money from his account into bank's own account for the purpose of buying banking products like drafts, pay orders, fixed deposit receipts or for depositing money into other accounts held by him like recurring deposits and loan accounts. 

 7. Post dated cheque: A PDC is a form of a crossed or account payee bearer cheque but post dated to meet the said financial obligation at a future date. 

8. Local cheque: A local cheque is a type of cheque which is valid in the given city and a given branch in which the issuer has an account and to which it is connected. The producer of the cheque in whose name it is issued can directly go to the designated bank and receive teh money in the physical form. If a given city's local cheque is presented elsewhere it shall attract some fixed banking charges. Although these type of cheques are still prevalent, especially with nationalised banks. It is slowly stated to be removed with at par cheque type. 

9. At par cheque: With the computerisation and networking of bank branches with its head quarters, a variation to the local cheque has become common place in the name of at par cheque. At par cheque is a cheque which is accepted at par at all its branches across the country. Unlike local cheque it can bepresented across teh country without attracting additional banking charges. 

10. Banker's cheque: It is a kind of cheque issuedby the bank itself connected to its own funds. It is a kind of assurance given by the issuer to the client to alley your fears. The personal account connected cheques may bounce for want of funds in his account. To avoid such hurdles, sometimes, the receiver seeks banker's cheque.

 11. Traveller's cheque: They are a kind of an open type bearer cheque issued by the bank which can be used by the user for withdrawal of money while touring. It is equivalent to carrying cash but in a safe form without fear of losing it.

 

12. Gift cheque: This is another banking instrument introduced for gifting money to the loved ones instead of hard cas

Civil Procedure Code, 1908 - Section 60(1)(i) Proviso - Attachment - Properties liable - Attachment of salary for a period of twenty-four months - Exempt from attachment for a gap of twelve months - Salary not liable again after time gap of twelve months for the execution of the same decree.

 Bapu Gadgil vs Smt. Rama on 20 June, 2002

Equivalent citations: I (2003) DMC 770

Author: N Dabholkar

Bench: N Dabholkar

JUDGMENT N.V. Dabholkar, J.

1. Heard Advocates S/Shri Kasliwal and Dixit for respective parties. Being an issue regarding interpretation of Section 60(l)(i) of the Code of Civil Procedure and more particularly proviso to said sub-section, Advocates S/Shri S.C. Bora and R.R. Mantri have also voluntarily rendered assistance, as amicus curiae, in trying to interpret the said provision.

2. The revision petition arises because on 19.6.1994, the Court of Civil Judge, Junior Division, Bhusawal in Regular Darkhast No. 47/1990 ordered attachment from salary of judgment-debtor/revision petitioner at the rate of Rs. 1,000/- per month.

3. Majority of the facts in the matter are undisputed. The parties are husband and wife and husband is Government servant. Wife obtained a decree for recovery of an amount of Rs. 24,999/- against the husband in Regular Civil Suit No. 263/ 1989. Admittedly, this was a decree of payment in lieu of Stridhan items and not a decree for maintenance. Regular Darkhast No. 47/1990 filed by wife for recovery of this amount and in August, 1990, the Executing Court ordered attachment Under Order 21 Rule 48 of the Code of Civil Procedure read with Section 60(l)(i) for attachment at the rate of Rs. 500/- per month from the salary payable to the husband. The amount was accordingly deposited with the Executing Court from January, 1991, and continuously for a period of twenty four months.

In September, 1991, wife filed application for directing enhanced deduction at the rate of Rs. 2,000/- per month. That application is yet undecided. Husband filed an application Exhibit 38 and prayed that after deduction for twenty four months, his salary is totally exempt from any further deduction by virtue of provision to Section 60(l)(i) of the Code of Civil Procedure. The Court has also not issued such a declaration pursuant to request in application Exhibit 38.

4. In the year 1994, wife filed application Exhibit 44 and prayed for further attachment of the salary of the petitioner. The Executing Court, according to revision petitioner, without calling say of the judgment-debtor, passed the impugned orders on 19.6.1994 directing deduction and attachment at the rate of Rs. 1,000/- per month from the salary of judgment-debtor.

5. Section 60 of the Code of Civil Procedure deals with the property liable to attachment and sale in execution of decree and proviso to said section gives particulars, which are not liable to such attachment for sale. The provision with which we are concerned is being reproduced hereinbelow for ready reference.

"...... provided that the following particulars shall not be liable to such attachment or sale, viz.

(a) to (h)..........

(i) salary to the extent of the first four hundred rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance:

Provided that where any part of such portion of salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty four months, be finally exempt from attachment in execution of that decree."

6. According to Advocate Mr. Kasliwal, the proviso exempts the part of such portion of the salary, as is liable for attachment, from attachment, once the said attachment was effected for a total period of twenty four months, whether continuously or intermittently. So far as execution in one and the same decree is concerned, the exemption is total and after deduction from salary for twenty four months, the creditor cannot deduct any further amount from the salary of Government servant in satisfaction of same decree, although otherwise liable to attachment. Even if some other creditor is to execute different decree obtained by him against the same judgment-debtor, he will have to wait for the time gap of twelve months before starting execution of his decree by attachment of portion of salary liable for such attachment.

7. As against this, Advocate Mr. Dixit states that, if the latter half of proviso is to be read as putting a ceiling for attachment of salary for one and the same decree only for twenty four months, then the central clause "such portion shall be exempt from attachment until the expiry of a further period of twelve months" would become redundant. According to Mr. Dixit, therefore, attachment of portion of salary for the purpose of execution of one and the same decree is permissible for a total period of forty eight months, with a gap of twelve months between two successive spans of twenty four months and, therefore, the impugned order, according to Mr. Dixit, calls for no interference.

8. So far as present execution proceeding is concerned, there is no dispute that part of the portion of the salary, which was liable for attachment, has been under attachment for a period of twenty four months. The only question is whether the same decree-holder wife can again attach it for a further period of twenty four months because previous attachment has been more than twelve months ago.

9. In order to arrive at correct interpretation of the provision, we have repeatedly read the proviso and it is felt that it should be considered in three parts. First part being the portion proceeding the clause "such portion shall be exempt from attachment until the expiry of a further period of twelve months" relied upon by Advocate Mr. Dixit. The clause relied upon by Advocate Mr. Dixit should be second portion and remainder part of the proviso should be the third.

On reading the first portion, it can be seen that the salary portion liable for attachment, can be attached either continuously or intermittently for a maximum period of twenty four months and not beyond that. Once such an attachment has continued for a period of twenty four months, the salary portion itself is exempt from attachment. Consequently, the judgment-debtor would enjoy the exemption against every creditor and decree-holder till expiry of further period of twelve months. The object of exemption appears to enable the judgment-debtor public officer or Government servant and others to maintain themselves and their families in a suitable manner.

Second portion, which clause according to Mr. Dixit becomes redundant if the proviso is interpreted to mean that attachment can be only for twenty four calender months and no more, speaks only regarding exemption from attachment of the salary portion liable to attachment. The clause by itself is silent about the number of decrees, the number of creditors/decree-holders.

10. Before proceeding to consider the third portion of the proviso, it must be pointed out that the phrase "a total period of twenty four months" occurs twice in the said proviso, once in the first part and once in the third part of the proviso, as carved for the purpose of convenient consideration. The third clause begins with the phrase "where such attachment has been made" and the word "such" has relation with the phrase "whether continuously or intermittently" in the first part of the proviso. The words "of one and the same decree" and "that decree" appearing in the middle and concluding part of third portion of the proviso, are important in considering the interpretation of the proviso.

The first part of the proviso, as already stated earlier, declares the salary portion totally exempt from liability to attachment and this exemption, by virtue of second part, is total, for a period of twelve months. The third portion speaks about the extent of exemption, so far as one and the same decree is concerned and it appears that when the attachment, as indicated in the first portion i.e. whether continuously or intermittently, has continued for a period of twenty four months, for the purpose of execution of one and the same decree, the salary portion liable for attachment is finally exempt from attachment so far as that decree is concerned. The latter clause takes away the protection accorded to the salary portion liable to attachment, which is total for a period of twelve months, so far as attachment for the purpose of execution of any other decree for which it was not so attached earlier for a period of twenty four months, whether continuously or intermittently. Consequently, after a time gap of twelve months, the salary portion liable to attachment can be attached by the same creditor, but only for execution of another decree than the one for which it was already attached for a period of twenty four months, or it may be liable for attachment by another creditor for execution of another decree.

If interpretation, as tried to be attributed by Advocate Mr. Dixit, is to be accepted, the third part of the proviso would have read "after the attachment has continued for a total period of forty eight months" instead of "twenty four months".

11. Thus, it is evident that on reading proviso in its totality, it appears that salary portion liable to attachment in execution of a decree is attachable for a period of twenty four months continuously or intermittently; in execution of one and the same decree. For a gap of twelve months, such salary portion is totally exempt from attachment by anybody and even for execution of different decree. The salary portion would again be liable for attachment after time gap of twelve months, but for the purpose of execution of a different decree and not one and the same decree for the purpose of execution of which it was already attached for a period of twenty four months earlier.

12. In the light of interpretation of the proviso as above, the impugned order dated 19.6.1994, which is second attachment of the salary portion after the same having been already attached for a period of twenty four months in the past, will have to be quashed and set aside as illegal.

13. The revision petition is allowed. The impugned order is quashed and set aside. It is clarified that the decree-holder, by virtue of this order, will not be debarred from executing the decree by other permissible modes.

Rule made absolute accordingly.

A promissory note executed using impressed stamp paper or adhesive stamps are equally valid and admissible in evidence, provided that they are stamped with requisite value.

 Andhra High Court

Gurana Asirinaidu vs Lenka Suryanarayana on 31 December, 2004

Equivalent citations: 2005 (1) ALD 713, 2005 (1) ALT 659

Author: S A Reddy

Bench: S A Reddy

ORDER S. Ananda Reddy, J.

1. This revision petition is at the instance of the plaintiff. He filed the suit - OS No. 30 of 1998 on the file of the Principal Junior Civil Judge, Vizianagaram for recovery of a sum of No. 9,500/- stating that the respondents/defendant borrowed the said amount and executed a promissory note agreeing to repay the said amount on demand with interest at the rate of 24% per annum, but failed to pay the same. When the petitioner/plaintiff sought to mark the suit pro-note, the respondent/ defendant objected for the same on the ground that it was not properly stamped, and therefore, it is not admissible in evidence. Admittedly, the suit document was executed on a non-judicial stamp paper worth No. 5-00. The learned Junior Civil Judge accepted the objection raised by the defendant and held that the plaintiff is not entitled to mark the disputed document as an exhibit on his behalf. Hence, the present revision by the plaintiff.

2. The contention of the petitioner/ plaintiff is that the Court below has committed an error in not properly considering the relevant provisions and appreciating the contention of the petitioner and in refusing to mark the disputed document.

3. On the other hand, the Counsel for the respondent/defendant supported the impugned order and relied upon a judgment of this Court in Dinne Erranna v. Modappa, (1963) II An.WR 198, which was referred to and relied upon by the Court below.

4. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent and considered the material on record.

5. Before considering the nature of the disputed document, it would be appropriate to refer to the relevant provisions of the Indian Stamp Act (hereinafter referred to as 'the Act') and the rules made thereudner:-

Section 2(22) defines 'promissory note' means a promissory note, as defined by the Negotiable Instruments Act, 1881. It also includes a note promising the payment of any sum of money out of any particular fund, which may or may not be available, or upon any condition or contingency, which may or may not be performed or happen.

As per Section 2(11) of the Act 'duly stamped', as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount, and that such stamp has been affixed or used in accordance with the law for the time being in force in India.

As per Section 2(13) 'impressed stamp' includes - (a) labels affixed and impressed by the proper officer; and (b) stamps embossed or engraved on stamped paper.

Section 10 deals with the mode of payment of duties, except as otherwise expressly provided in this Act, all duties with which any instruments are chargeable shall be paid, and such payment shall be indicated on such instruments, by means of stamps.

Section 11 of the Act deals with the use of adhesive stamps. The following instruments may be stamped with adhesive stamps, namely:

(a) instruments chargeable with a duty not exceeding ten naye paise except parts of bills of exchange payable otherwise than on demand and drawn in sets;

(b) bills of exchange and promissory notes drawn or made out of India;

(c) entry as an advocate, vakil or attorney on the roll of a High Court;

(d) notarial acts; and

(e) transfers by endorsement of shares in any incorporated company or other body corporate.

Section 35 deals with 'instruments not duly stamped inadmissible in evidence, etc. However, in certain cases though they were initially insufficiently stamped, they are admissible in evidence subject to the payment of deficit stamp duty as well as the penalty payable. But however, under the proviso, the following documents are excepted, such as instrument chargeable with duty not exceeding 10 naye paise only, a bill of exchange, or a promissory note.

6. Similarly, Rule 3 of the Indian Stamp Rules, 1925 gives the description of stamps. As per the said rule, all duties with which any instrument is chargeable shall be paid and such payment shall be indicated on such instrument by means of stamps issued by the Government for the purpose of the Act, and a stamp, which by any word or words on the face of it is appropriated to any particular kind of instrument, shall not be used for an instrument of any other kind. The said rule also makes it clear that there are two kinds of stamps, indicating the payment of duty with which the instruments are chargeable, namely (i) impressed stamps, and (ii) adhesive stamps.

Rule 5 provides how a promissory note is to be executed, according to which a promissory note or a bill of exchange shall, except as provided by Section 11 or by Rules 13 and 17, be written on paper on which a stamp of the proper value, with or without the word 'hundi' has been engraved or embossed.

Rule 13 refers to the use of adhesive stamps on certain instruments. This rule enumerates the instruments, which may be stamped with adhesive stamps, namely (i) bill of exchange payable otherwise than on demand, and drawn in sets, when the amount of duty does not exceed 10 naye paise for each part of the set. (The other part of the rule is hot relevant).

Rule 17 provides for the use of special adhesive stamps when the documents, like bill of exchange, cheques and promissory notes drawn or made out of India with stamps bearing the word 'foreign bill'.

Rule 18 provides that when an instrument bears a stamp of proper amount but on improper description, the Collector may, on payment of the requisite duty, certify by an endorsement that it is duly stamped.

Similarly, Article 49 of the Schedule to the Act provides how a promissory note is to be stamped i.e., value of the stamp.

7. The contention of the plaintiff is that the provisions of Section 11 refer the word 'may', which gives the option to use adhesive stamps as referred to therein. Further, the term duly stamped did not put any restrictions as to the type of stamps to be used with reterence to any particular type of instrument. Therefore, a promissory note, executed on an impressed stamp of not less than the proper amount of stamp duty payable, should be considered as a valid document/promissory note. Therefore, the view expressed by the Trial Court is not in accordance with law. The learned Junior Civil Judge referred to and relied upon a judgment of this Court in Dinne Erranna v. Modappa (supra). In that case a learned Single Judge of this Court was considering the validity of a document as promissory note in terms of the provisions of Sections 35 and 37 of the Act. In that case, the disputed document, which is stated to be a promissory note, was not duly stamped. But, however, it was certified to be duly stamped by the Collector, and claimed by the plaintiff that it is a valid document. The claim of the plaintiff was that even though the document was not properly stomped, but as it was certified by the Collector having been duly stamped, it is admissible in evidence. Though the said claim was accepted by the learned District Munsif, but was reversed by this Court, observing that:

"Proviso (a) to Section 35 expressly forbids the Collector to validate an unstamped promissory note, and therefore, the order of the Collector validating such an instrument cannot have any legal effect."

But in that case, the claim of the plaintiff was that the document was validated under Section 37 of the Act, which empowers the State Government to make the rules providing that where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date of its execution. But such validation, as found by the learned Single Judge of this Court, shall not be applicable to the documents specified, under the proviso to Section 35, which includes promissory note.

8. This issue was also considered by a learned Judge of this Court in P. Krishna Murthy and others v. Munilal, 1978 LS 40 (AP). In that case, the defendants raised objections as to the admissibility of the promissory notes on the ground that they were not properly stamped. The suit promissory notes for No. 5,000/- each were stamped with three adhesive stamps of 10 paise each. The learned Single Judge referring to the provisions of Section 11 of the Act held that there is no prohibition contained in Section 11 that adhesive stamps shall not be used in any instruments other than those mentioned in Clauses (a) to (e) of Section 11. This Court also referred to the words 'may be stamped' contained in Section 11, which indicates the permissive character of the stamps to be used in execution of the promissory notes. This Court, thus, upheld the view of the lower Court.

9. This issue was also considered by a learned Single Judge of the Madras High Court in P. Moorthy v. A.R. Kothandaraman, . In that case, the promissory note in question was executed on an impressed stamp paper of the value of No. 1-50 paise. Though the defendant disputed the validity of the promissory note and admissibility of the said document on the ground that it was not duly stamped, the Small Causes Court rejected the said objection. But, however, the said finding was reversed by the new Trial Bench of the Court of Small Causes, which was assailed in the revision before the Madras High Court. The learned Single Judge, after referring to the provisions of Sections 10 and 11 of the Act, as well as the relevant rules, held that a promissory note can be stamped either with adhesive stamps or engrossed on a stamp paper of the proper value.

10. In G. Hanumanthapa v. S. Bala Rangaiah, , a learned Single Judge of the Karnataka High Court had also an occasion to consider this issue as to the proper stamp duty payable on the promissory notes. The learned Judge though held that a promissory note not executed on duly stamped paper is inadmissible in evidence, but, however, noted that a pro-note written on impressed stamp paper of requisite value must be held as duly stamped.

11. In view of the above position of the rules as well as the decisions referred, to, there is no prohibition as to the execution of a promissory note on an impressed stamp paper. What is required for a valid promissory note is that it should be stamped properly, as provided under the Act and the Rules. Section 10 of the Act refers the mode of duties to be paid. As per this provision, except as otherwise expressly provided in the Act, all duties with which any instrument chargeable shall be payable and such payment shall be indicated on such instruments by means of stamps. Further, as already referred to Section 11, where the word 'may' used, is indicative of the choice for the executant of the document. A promissory note executed using impressed stamp paper or adhesive stamps are equally valid and admissible in evidence, provided that they are stamped with requisite value.

12. In view of the above, as the disputed document is admittedly executed on an impressed stamp paper of the value of No. 5-00, which is more than the requisite value, it should be treated as a valid document executed with the requisite stamp duty, as provided under the Act and the Rules.

13. Therefore, the impugned order is set aside, and the matter is restored to the file of the lower Court with a direction to receive the disputed document and mark the same as an exhibit on behalf of the plaintiff and proceed with the suit in accordance with law.

14. Accordingly, the revision petition is allowed. No costs