Adv Prashant
18 June 2015 at 18:03
Respected all experts,
I am also an advocate practicing in Criminal and taxation matters.
Crust of my problem is that a partnership firm K.L.B. consist of my father and my late grandfather filed a civil suit in near about 1965 for recovery of sum amount due from respondent. Thereafter K.L.B. obtained decree against respondent.
Now there was a notice from honorable High court of Allahabad regarding death of lawyer of K.L.B. and in that notice there was instruction to appear, on next date , through another advocate or appear in person to carry on the proceedings of the case.
I want to know if K.L.B. don’t want to contest or not appoint another advocate then:
1.What will be outcome of the case on next date fixed for appearance in the case, if K.L.B. is not present either through its new advocate or through their one only surviving partner:
2.Whether suit will ex-party against K.L.B.
3.Whether there will be any other disadvantage to K.L.B.
4.Whther respondent will be able to got decree against K.L.B.
Please,its my humble request to all experts here to give me right advise so that I can be able to reach right decision.
Advocate Parshant Kumar Agarwal
perts/modify_message.asp?entry_id=985432
Anonymous
18 June 2015 at 17:29
Hi, In my birth certifcate my mother Alias Name (preeti ) is printed instead of original name (Sunita ) . Now when i applied Passport i am facing the issue for mother name Mismatch . I am not having any record for Ailas Name ( preeti ). Please kindly let me know the possible way to get the issue solved . Thanks in Advance. please help me please
Rakesh Ranka
18 June 2015 at 12:06
sir, last year I bought a flat in a co-op. scty in vile parle at top floor in my wife's name with the stilt parking in resale, when we shifted then I noticed that they made flower bed in front my parking & also on turn to enter to my parking they allotted two parking on top of water tank illegally to other members by taking handsome amount, when I object that I am facing problem on turning & to take out my car from my parking the became deaf. my repeated attempt to talk to them & in writing but they are not bothering. instead of solving this issue they started to harass us. they put lot of hindrance in front of my car & when I remove them then they falsely alleged me that I damage the society property & fined Rs.5000/- for this. when I strongly object for this & ask them to provide me all the details but they refuse & said it is unanimously decision taken by the MC. since we are on top floor now they allowed some of co-members to put there ac's split unit in duct line area just above my flat & due to this we are having problems, we are facing scorching heat due to this when we ask them to remove or divert the same but they ignored. I don't know what to do ? should I file criminal complaint against them for this ? MC members are very arrogant not listening & do the things there own. our scty is facing serious cleanliness issues our premises is very dirty, the gutters are over flown all the time but they keep mum on all this issue. My serious concern is for health, I wanted to know is this allowed or permissible to park the cars or other vehicle on top to water tanks ? water tank on ground level & all the rainy water is mix with that so it is allowed to keep water tank on ground level ? pls suggest what I do ? we are new in this scty & we don't have much communication to other members.
rahul
17 June 2015 at 20:31
Respected Members,
I am sincerely sorry for such long query but I have given the cases which I have gone through & still confused & hence giving all in detail.
Section 173 of Maharashtra Housing Area Development Act 1976
(MHADA in short) – This act is a Special or Local law.
“173. Notice of suit against Authority, etc.
No person shall commence any suit against the Authority or against any member of the Authority or of any Board or of any Panchayat or any officer or servant of the Authority or Panchayat or any person acting under the orders of the Authority or Board, or Panchayat for anything done or purporting to have been done in pursuance of this Act (including any contract thereunder), without giving to the Authority, member, officer or servant or person two months previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained of.
And in the case of any such suit for damages, if tender of sufficient amends shall have been made before the action is brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender.”
Section 87 of the Bombay Port Trust Act, This act is a Special or Local law.
“87. No suit or other proceeding shall be commenced against any person for any thing done, or purporting to have been done, in pursuance of this Act, without giving to such person one month's previous notice in writing of
the intended suit or other proceeding and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding ............”
Section 110 of the Madras Port Trust Act. This Act is a special or Local law.
“110. No suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act without giving to such person one month's previous notice in writing of the intended suit or other proceeding, and of the cause thereof nor after six months from the accrual of the cause of such suit or other proceedings.”
In the decision of Bombay High Court in the case of Arun Construction Co. v. Bombay Housing and Area Development Board, reported in 2000(2) Mh.L.J. 239, the provision of Section 173 of the MHAD Act has been considered in para 5 as under :
“[5] Now, if in the light of these rival submissions section 173 is perused, to my mind, it is clear that once section 173 lays down two requirements for valid institution of a suit against the authority viz (1) service of two months' notice on the authority and (2) institution of the suit within six months from the accrual of the cause of action. Perusal of the judgment of the Supreme
Court in the case of the Trustees of Port of Bombay referred to above shows that in that case the Supreme Court was construing the provisions of section 87 of the Bombay Port Trust Act. Section 87 of the Bombay Port
Trust Act, which is quoted in paragraph 8 of the judgment of the Supreme Court reads as under :“
87. No suit or other proceeding shall be commenced against any person for any thing done, or purporting to have been done, in pursuance of this Act, without giving to such person one month's previous notice in writing of
the intended suit or other proceeding and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding ............”
A comparison of provisions of section 87 of the Bombay Port Trust and section 173 of the Act shows that the provisions are of para materia.
Perusal of the judgment of the Supreme Court has considered the provisions of section 87 in detail and has held that section 87 deals with limitation for institution of a suit. To my mind, it is clear that section 173 does not deal with merely with the period within which notice is to
be given, but it clearly lays down the period of limitation for institution of a suit. Placing any other interpretation on the provisions of section 173 would amount to doing violence to the language in which the section is couched. It is thus clear that when the section lays down the period of six months it is referring to the commencing of the suit and not to the giving of the notice. It is clear that the said section in clear terms lays down that two months previous notice has to be given to the authority who would be a party of the intended suit and the cause thereof and the suit has to be instituted within six months of the cause of action. In the present case, it is clear that both the suits have not been instituted within a period of six months from the date on which according to the plaintiffs themselves, the cause of action arises. It has therefore to be held that both the suits have not been instituted within a period of six months as contemplated by provisions of section 173 and therefore, both the suits are barred by limitation. Issue No.7 in both the suits is therefore answered accordingly. In view of the
finding recorded on issue of limitation, the suits do not survive and the same are dismissed with costs.”
In this case of Arun Construction company, petttioner Arun Construction company had filed suit against MHADA for damages within three years from cause of action. Arun construction company did not plead that MHADA Act is a special or local law & hence by virtue of provision of section 29 (2) of limitation Act, provisions of limitation Act will apply & limitation act gives three years to file suit for damages & hence suit is in time.
Instead of this Arun Construction Company pleaded that six month time given by section 173 of mhada act is for giving notice & not for filling suit & time given by limitation act for filling suit is three years & hence suit is in time & Bombay high court dismissed suit stating that suit is time barred.
In the case of The Trustees Of The Port Of Madras vs The Dunlop Rubber Co. (India) Ltd. on 16 October, 1967, Madras High Court held that Madras Port trust Act is not complete code itself & hence by virtue of section 29 (2) of limitation act, provision of limitation act will apply to the case & court excluded the one month period of notice u/s 15 (2) of limitation Act.
Relevant portion is as follows.
The only point involved in this civil revision proceeding is the interpretation of Section 110 of the Madras Port Trust Act, 1905, in the context of the admitted facts of the case. Section 110 of the Madras Port Trust Act is in the following terms:
No suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act without giving to such person one month's previous notice in writing of the intended suit or other proceeding, and of the cause thereof nor after
six months from the accrual of the cause of such suit or other proceedings.
2. The question of interpretation that arises is whether the two limbs or clauses of the section should be interpreted cumulatively or disjunctively. In other words, if any suit filed after six months from the accrual of the cause of such suit is explicitly barred under the second limb of the above section, would a plaintiff be barred who gave notice of his suit within the six months, but who desires to exclude the period of such notice, namely, one month, in the computation of the period of limitation? The matter may be one of some difficulty, if this section stood atone. But, actually this
section has to be read in the light of certain section of the Limitation Act of 1908 and the result of that is to place the matter beyond doubt. The plaintiff is entitled by virtue of the application of the relevant sections of the Limitation Act to the problem of the interpretation of the terms of Section 110 cited above to exclude the period of notice, namely, one month, in computing the limitation period of six months.
3. Turning to the Limitation Act Section 15 (2) states that:
In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.
4. The vital question is, will this principle apply in the entirety of its terms to Section 110 of the Madras Port Trust Act, or must that section be interpreted as a compact and self-sufficient code of limitation, for actions instituted against a statutory body like the Port Trust? The relevant section here is Section 29 (2) of the Limitation Act, under which the provisions of Section 3 apply, so that the period of limitation prescribed by any special or local law has to be deemed to be the period of limitation prescribed by the Schedule to the Limitation Act. Further, the provisions contained in Sections 4, 9 to 18 and 22 shall apply. But the application is limited to this extent, namely, " to the extent to which, they are not expressly excluded by such special or local law."
5. In the result, therefore, since Section 110 of the Port Trust Act contains no words of express exclusion of the sections of the Limitation Act, the period of limitation in Section 110 has to be construed, as though it were the period prescribed by the Schedule to the Limitation Act, and Section 15 (2) will apply. In this view, the suit in the present case was in time and the revision petition instituted by the Port Trust will have to be rejected.
Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, this Court while construing Section 29 (2) of the Limitation Act has held that if the operation of the Limitation Act has to be barred, then a time schedule has to be given under the special law and in the absence of such, the Limitation Act would apply.
Section 29 of Limitation Act states as follows:
29.Savings--(1) (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of
determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."
Following are three conditions given in the various decision of the Supreme Court & High court & in commentary on Limitation act to apply section 29 (2) of limitation act.
Three conditions are needed to be satisfied to attract section 29 (2) of Limitation Act.
i) In connection with any suit, appeal or application, there should be a stipulation for the period of limitation under any special or local law.
ii) The said prescription (the right to something through long use) of period of limitation under such Special or Local Law should be different from the period prescribed by the Schedule to the Limitation Act.
iii) Any express provision should not be there in Special or Local Law
Contrary to the provisions in Section 4 to 24 of the Limitation Act.
If these triple conditions are answered sufficiently then Section 4 to 24 will be applicable in view of Section 29 (2) of the Limitation Act 1963
Plaintiff has file suit against MHADA for declaration that transfer of title effected by them be set aside & Sale Deed be set aside & also for damages against them.
Time limit for declaration suit is three years as per limitation act 1963. But since suit is against MHADA section 173 of MHADA act is attracted.
Section 173 act provides two condition :
i) Two months prior notice
ii) Suit within six month after the cause of action.
Notice has been served but suit has not been filed within six months from the cause of action.
Hence by applying section 173 of MHADA Act, Suit is time barred but as per the provisions of Limitation Act suit is within time because Limitation Act 1963 provide limitation period three years for declaration suit.
Therefore, In order to bring suit in time, Section 29 (2) of Limitation Act is need to be applied.
Question is
i) Whether provision of section 29 (2) of limitation act made applicable to this present suit ?
ii) Whether Suit is in time ?
Snehal Gaikwad
17 June 2015 at 19:48
My grandfather died in year 2001. After his death, agricultural land was inherited by my mother, her sister and my grandmother in equal share. However, there was no partition. In year 2006, my grandmother sold her undivided share to her brother's son under coercion and undue influence as she was residing with him.
In sale deed, it is mentioned that the possession is given to the buyer by grandmother. However, possession is still with us.
Kindly guide:
1. What is the remedy available to grandmother.
2. Can buyer take possession of his share as property is not partitioned.
3. Is the sale made by grandmother valid.
4. Can the undivided share in jointly held property be sold.
Yogesh Nagpure
17 June 2015 at 19:04
R/Sir
A government Department has floated a tender for some specific work.
Three bidders are qualified in existing Pre-Qualification criteria of the tender.
The techno-commercial bid was opened wherein all the bidders are qualified and their documents are found in order as prescribed in Pre-Qualification Criteria.
However the department, after opening the technical bid, cancelled the tenders without stating any reason for the same.
This is being done on the instruction of certain minister and to favor the X agency who is not qualified in existing Pre-Qualofication criteria.
Now the department is splitting the tender into two parts and changing the Pre-Qualification Criteria so that the X agency would get qualified.
I am one of the participants in the first tender which is now cancelled.
How to deal with the problem.
Any specific SC judgement which state such cancellation is void.
SALAI VEDHA VIRADHAN M
17 June 2015 at 18:17
My grandmas's ration card had 2 names in it: her name and her daughter's name. Daughter got married and so my grandma removed her daughter's name from her ration card. Upon completion of the process, one of the officials said that a single person cannot own a ration card.
I visited the civil supplies website of the Tamil Nadu government. It stated that a single person can of course own a ration card.
So my question is, can my grandma own a ration card for her alone (with a single name)....?
venkat
17 June 2015 at 17:59
my father got a loan from bank mortgaging house property. he died and his legal heirs were impleded and my mother also died and i became the sole legal heir. Final decree was passed in the year 1999 and till date no action had been taken in this regard. The original documents of the house are with the bank in relation to this case and how can i get the same. i am told that only the bank can apply for return of property and i am sure they will not do on their own. how can i proceed? kindly advise.
Sreekanth
17 June 2015 at 15:38
Sir,
I was gifted a property from my father, which was registered as a gift deed. Afterwards it was known to my attention that the survey no. was interchanged with another one of his property, but the boundaries had been noted correctly. This mistake was noted only after the demise of my father. Is there any way that a rectification deed can be made without any assistance of my siblings?
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girls right
Sir, I have question regarding property dividation. My maternal grandpa expired on 24.4.2011. The land of 39 acres was on his name and his unmarried blind brothers name togetherly. Grandpa has 2 son and 4 daughters (all are married). Dividation of property was stopped in between in his present in 2008 legally. only collectors order of reservation of land is done. At that time nothing was given to daughters. But my question is ...whether now all girls (married before 1993) are having equal rights in property? Kindly help.