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Civil: Additional Evidence – Due Diligence

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(A) Code of Civil Procedure, 1908 – Order 41 Rule 27 – Additional Evidence – Due Diligence – Due diligence of the party contesting the suit has to be shown and not the due diligence of the legal representatives.  (Para 21)

(B) Code of Civil Procedure, 1908 – Order 41 Rule 27 – Additional Evidence – When not to allowed – The additional evidence cannot be led to fill up the lacuna left – The additional evidence sought to be led is irrelevant as not related to suit property – Rightly not allowed. (Para 24, 25, 26)

(C) Practice and Procedure – No reason by first appellate court for differentiated from trial court – Trial Court relied on revenue entries and other established facts – Held: The learned First Appellate Court erred in upsetting the judgment and decree of the learned Trial Court without taking notice of the reasons assigned by learned Trial Court for dismissing the suit. (Para 31)

(D) Code of Civil Procedure, 1908 – Order 6 Rule 15 of CPC – Verification of the pleadings – Person acquainted with the facts of the case – Plaintiff witness testimony clearly shows that he was not aware of the factual position and could not have been a person acquainted with the facts of the case. The person who signed the plaint did not appear in the Court to prove that he was acquainted with the facts of the case. Therefore, the compliance of Order 6 R. 15 was not satisfied in the present case. (Para 33)

(E) Constitution of India, Article 300 – Code of Civil Procedure, 1908 – Section 79, Order 27 Rule 1 – Suits by or against the Government– Who can file a plaint in the suit filed by or against the Government – Government of India or State Government have to sue or to be sued by the name of Union of India or by the name of the State. The pleadings have to be signed by any person authorized by the State or Union of India. – Held: In the present case PW-1 did not state that Central Government or BBMB had authorized him to file the present suit or agreed to ratify his acts. There is no other evidence that Central Government or BMMB had authorized Senior Executive Engineer, Additional Superintending Engineer or Superintending Engineer, BBMB to file the suit or ratify the acts done by them. Therefore the plaint was defective and the suit was not filed by a competent person in the name of the Union of India or BBBM. Suit not maintainable.  (Para 36, 38, 39, 40, 47, 48)

HIGH COURT OF HIMACHAL PRADESH

2023 STPL(Web) 132 HP

[2023:HHC:9926]

Sant Singh (Deceased) Through His Lrs Vs. Senior Executive Additional S.E. & Ors.

RSA No. 89 of 2007-Decided on 31.08.2023

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Consumer

September 7, 2025 No Comments
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Contract: Demurrage not allowed

May 20, 2024 No Comments

Indian Contract Act, 1872 – Demurrage – Contractual Liability – Liquidated Damages – Breach of Contract – Adjudication of Claims – The petitioner, engaged in transportation business, participated in a competitive bidding process and was awarded a transportation contract by the Food Corporation of India (FCI). Dispute arose when FCI began deducting demurrage charges from petitioner’s bills for alleged delay in unloading wagons, despite petitioner not being responsible for wagon unloading.

The petitioner contested the deduction, arguing that as per the contract, demurrage cannot be unilaterally imposed by FCI unless liability is determined through due process of law.

The Court examined the relevant contract clause, which allowed FCI to recover costs, damages, etc., due to contractor’s negligence, but found it did not specifically authorize demurrage deduction.

Relying on the Supreme Court precedent in Food Corporation of India vs. Abhijit Paul, the Court held that demurrage could not be levied on the petitioner as the contract did not assign the task of wagon unloading to them.

The absence of a liquidated damages clause in the contract further supported the Court’s decision. The Court directed FCI to refund the deducted demurrage amount and refrain from further deductions, unless liability is determined through lawful adjudication.The order did not prevent FCI from seeking damages through proper legal channels. (Para 12, 15, 18, 22)

GAUHATI HIGH COURT

2023 STPL(Web) 184 Gauhati

[2024 STPL 1652 Gauhati]

Hi Speed Logistics Pvt Ltd. Vs. Food Corporation Of India And 5 Ors.

WP(C) 6317 of 2022-Decided on 8-11-2023

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Breach of peace: It must disturb public order, not just personal peace

May 20, 2024 No Comments

Code of Criminal Procedure, 1973 – Sections 145, 146- Breach of peace – Emergency situation – Possession dispute – Civil litigation – Non-application of mind – Proceeding under Section 145 – Attachment under Section 146 – The application under Section 482 of the Code of Criminal Procedure, 1973 challenges the orders by the Executive Magistrate, concerning a dispute under Section 145 of the Code of Criminal Procedure, 1973 and subsequent attachment under Section 146(1) of the same.

The petitioner contests the legality of both orders, asserting that the initiation of the proceeding and the attachment were illegal and an abuse of process. It’s argued that the jurisdiction under Section 145 can only be invoked if there’s a likelihood of a breach of peace, which wasn’t sufficiently demonstrated in this case.

The petitioner highlights that the attachment order was passed ex-parte without affording them an opportunity to respond, which is contrary to the exceptional circumstances required for such an order. Reference is made to legal precedent discouraging parallel criminal proceedings when a civil litigation is pending regarding property possession, emphasizing the binding nature of civil court decrees.

The respondents counter by claiming entitlement to the land based on a partition deed and subsequent court judgments. They argue that emergency circumstances justified the attachment due to the petitioner’s attempt to construct on disputed land.

Legal precedents are cited to emphasize that the existence of an emergency, not just the use of the term “emergency,” warrants attachment under Section 146.

The judgment critically examines the orders and the circumstances leading to them. It observes discrepancies between the assertions made in the complaint and police report, highlighting the absence of clear grounds for apprehension of breach of peace.The judgment reiterates the requirement for a dispute likely to cause a breach of peace under Section 145, emphasizing that it must disturb public order, not just personal peace.

It concludes that the impugned orders suffer from non-application of mind and jurisdictional error, resulting in injustice to the petitioner. Consequently, both orders are quashed, and the petition is allowed. Important Paragraph Numbers of Judgment: (Para 13, 19, 30, 31)

GAUHATI HIGH COURT

2023 STPL(Web) 183 Gauhati

[2024 STPL 1651 Gauhati]

Md. Osman Ali Saikia And Anr. Vs. Chand Mahamod Saikia And 2 Ors.

Crl.Pet. 239 of 2021-Decided on 8-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-183-Gauhati.pdf

 

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Electricity: Outstanding arrears from previous owner

May 20, 2024 No Comments

Constitution of India, Article 226 – Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 – Electricity Act, 2003 – Section 43, 49, 50, 56 – Electricity – Outstanding arrears from previous owner – The petitioner, a partnership firm, sought a writ petition under Article 226 challenging a decision by the Assam Power Distribution Company Limited (APDCL) to deny a new electricity connection to their premises due to outstanding arrears from previous electricity bills.

The court directed interim relief for immediate electricity connection, subject to 50% payment of outstanding dues, with the remaining 50% to be paid upon dismissal of the writ petition.

The petitioner participated in an auction sale of a property and purchased a portion of land with a Business Centre cum Market Complex. They subsequently applied for a new electricity connection, which was denied by APDCL citing outstanding dues.

The court referred to the Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 and the Electricity Act, 2003. It cited a Supreme Court decision (K.C. Ninan vs. Kerala State Electricity Board) regarding the liability of auction purchasers for previous dues in properties sold on ‘as is where is’ basis.

The court dismissed the writ petition, holding the petitioner liable for outstanding electricity dues as per the auction sale agreement. It directed the petitioner to pay the outstanding dues as per the interim order, with APDCL waiving the accrued interest on the principal dues. (Para 15, 16)

GAUHATI HIGH COURT

2023 STPL(Web) 182 Gauhati

[2024 STPL 1650 Gauhati]

M/S Borah And Companyjiban Phukan Nagar Vs. Assam Power Distribution Company Ltd. And 3 Ors.

WP(C) 989 of 2014-Decided on 7-11-2023

2023 STPL(Web) 182 Gauhati

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