1. Appeal dismissed for default restored as there was no lapse on part of the applicant

The appeal notice to the respondent was returned unserved and thereafter no steps for effecting service was taken. The Hon’ble Bombay High Court restored the appeal by observing that the lapse in effecting proper service was on part of the counsel or his staff and for which the applicant should not suffer.

Commissioner of Central Ex & Customs vs. Suyash Engineering Works (2008) 225 ELT 22 (Bom)

2. Acceptance of an offer must be in terms of the offer and a conditional acceptance will amount to a counter offer: contract act

Acceptance of an offer must be in terms of the offer and a conditional acceptance will amount to a counter offer. It is a settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. The rule is that the acceptance must be absolute, and must correspond with the terms of the offer.

Claridges Infotech P. Ltd. vs. Surendra Kapur & Ors 2008 Vol. 110(3) Bom L.r. 1120

3. Co-parceners enjoying some extents of joint family properties subject to convenience, such arrangement cannot be treated as partition: Hindu Law

The Co-parceners pending partition by metes and bounds, were enjoying some extent of properties subject to convenience. The Hon’ble Court held that such an arrangement cannot be treated as a partition, in the eye of law.

It was observed that Partition is a phenomenon, which must result in ascertainment of the shares of various coparceners or co-shares, as the case may be ascertainment of properties available for partition, and allotment thereof to parties concerned, commensurate with their entitlement. Unless factum of division of properties by metes and bounds and allotment of definite and fixed shares to respective parties in accordance with shares is provided, there cannot be a partition. It may not be necessary that there must be a written and registered document, to evidence partition.

T. Krishna Naidu & Anr vs. T. Munaswami Naidu (deceased by LRs) & Ors AIR (2008) (NOC) 1329 (A.P.)

4. Dishonour of Cheque: Only the drawer of cheque can be held liable for the offence: Negotiable Instruments Act, 1881, sec. 138, 141

Where the wife was joint account holder alongwith her husband and cheque was issued by husband which was dishonoured the wife cannot be held liable for the offence u/s. 141 of the Act.

The Hon’ble Court observed that there is no such provision regarding taking cognizance against a person other than the ‘drawer’ of the cheque. The accused husband could alone be saddled with culpable liability as he was the only ‘drawer’ of the cheque

Smt. Bandeep Kaur vs. S. Avneet Singh AIR 2008 (NOC) 1301 (P&H)

5. Deficiency of service by builder – Consumer Protection Act sec. 2(1)(G)

The builder had not completed the flat even after a lapse of 10 years. The builder had offered an alternate flat in an alternate building which was in less preferential area and was not acceptable to the purchaser. The builder had withheld the deposit of money for 10 years. It was held that the purchaser was entitled to refund of amount alongwith 17% interest from date of deposit till payment.

Shri Tarun Kumar Ghai vs. M/s. Malibu Estate P. Ltd. & Ors AIR 2008 (NOC) 949 (NCC)

6. Deficiency in service : Medical Negligence

The hospital in question didn’t have requisite infrastructure like ICU or facilities of neurosurgeon or Cardiologist to undertake major surgery. During the surgery the patient developed complexity which required continuous ventilating support and therefore was shifted to another hospital. The ambulance that carried patient was lacking necessary medical facilities and due care was not under taken which resulted in death of the patient. It was held that the hospital was guilty of medical negligence.

Dr. Madhavi Amma Memorial Trust & ors vs. Padmanabhan & Ors. AIR 2008 NOC 953 (NCC)

7. Family Arrangement or Partition deed

To decide about the nature of a document whether it requires to be stamped or to be registered, it is the contents of the document, that are to be taken into consideration and not the nomenclature alone.

The law is well settled that in cases where partition among the joint owners had already taken place and the factum of the partition effected earlier was put in writing on a later point of time and the properties are enjoyed as per the said partition, the same can be termed as a family arrangement and need not be treated as a partition deed and therefore, stamping and registering the same does not arise. On the other hand, if an agreement itself creates a right for the first time as a document, then one has to consider the contents of the agreement, instead of the nomenclature.

Vincent Lourdhenathan Dominique vs. Josephine Syla Dominique AIR 2008 (NOC) 1173 (Mad)

8. Female’s share in Ancestral joint family property on partition is her personal property: Hindu Succession Act, 1956

The law is well settled that if a female receives and possess any property which she got against her per-existing right she becomes the full owner of the property and not limited owner.

Since the suit property came to her share on partition of joint family property she became the full owner of the same by virtue of sec. 14(1) of the Hindu Succession Act.

Vasant Dattatraya Sarada Kalamb Distt. Yavatmal vs. Manohar Dattatraya Sarada Nagpur 2008 Vol. 110 (4) Bom L.R. 1519

9. Gift of share in immovable property in a co-operative society requires registration: Registration Act – S. 17(1)(A)

The gift of share in immovable property in a co-operative society or a gift of share in the society which has the effect of transfer of rights over the immovable property is not exempt from being registered.

Brigadier Harjit Singh vs. M/s. Rangmahal Theatre AIR 2008 (NOC) 1334 (Bom)

10. Judicial discipline: Constitution of India Art. 141

The High Court distinguished a judgment of the Supreme Court on the grounds that there was no elaborate discussion in the judgement and therefore no reason is discernible. The Hon’ble Supreme Court held that the observations was not graceful and was clearly violative of the judicial discipline.

Special Dy. Collector (LA) vs. N. Vasudeva Rao & Ors AIR 2008 Supreme Court 944

11. Misstatement in Insurance Policy : Insurance Act, 1938, S. 45

The insured had an undergone an operation for theroid. But while filling the application form for obtaining the policy, he had answered in the negative, the question relating to his health. Thus according to the Insurance Co., the said incorrect answers formed the basis of repudiation of the contract of insurance

Sec. 45 of the Insurance Act, 1938 (which prescribes that a life insurance policy cannot be called in question on ground of misstatement after two years) postulates repudiation of insurance policy within a period of two years. There are three conditions for application of second part of section 45 of the Insurance Act which are: (a) the statement must be on a material matter or must suppress facts which it was material to disclose; (b) the suppression must be fraudulently made by the policy holder; and (c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.

Misstatement by itself is not material for repudiation of the policy unless the same is material in nature, but, a deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law. The purpose of taking a policy of insurance is not very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered.

P.C. Chacko & Anr vs. Chairman, Life Insurance corporation of India & Ors. 2008 (1) SCC 321.