'I would fight for Binayak Sen' : Ram Jethmalani

Ram Jethmalani

Source : Times of India

Refusing to follow his party's line, eminent lawyer and Bharatiya Janata Party (BJP) member Ram Jethmalani on Tuesday said he can fight the case for convicted rights activist Binayak Sen against the party's government in Chhattisgarh. 

Sen, 59, was on Dec 24 held guilty of sedition by a Chhattisgarh court and sentenced to life term. He is vice president of the People's Union for Civil Liberties. 

"I would do it for him, I would fight for Binayak Sen. No party line says a lawyer should not fight a case," Jethmalani told CNN-IBN. 

He stressed that the case was based on weak evidence. 

"I have not seen the judgment, but on the basis of the case that was filed I can say it was a case of low evidence," he added. 

Jethmalani, a Rajya Sabha MP from BJP, earlier appeared for Sen in the Supreme Court when he was seeking bail. He argued against the state government following which Sen was granted bail. 

The BJP, which is the ruling party in Chhattisgarh where Sen has been convicted by a court, has been maintaining a hard stance against the Maoists. It believes Sen is a Maoist sympathiser.

Attachment Orders against Sanjay Dutt

Source : Times of India

The Bombay High Court has ordered attachment of two properties of film actor Sanjay Dutt in keeping with an arbitration award passed by the Indian Motion Pictures Producers' Association in January this year on a financial dispute between him and producer Shakeel Noorani.

Noorani has claimed Rs 2.03 crore from the actor which includes Rs 50 lakh paid to him as signing amount for an under-production film 'Jaan Ki Baazi'.

In case of financial disputes of this nature, there is an agreement between Cine Artists Association and IMPPA which provides for arbitration. The agreement empowers IMPPA to act as an arbitrator and pass an award.

IMPPA applied for execution of a decree recently and the execution department of the High Court issued warrant under Civil Procedure Code against Sanjay last week, following which bailiff of Sheriff's court today pasted notices of attachment of properties on the premises of the actor, Noorani's lawyer Ashok Sarogi told reporters.

Sarogi said the actor has an option to pay the money claimed by the producer within 30 days or else his properties (residence and office) would be auctioned. He can challenge this order in High Court. So far, Sanjay has not challenged IMPPA's arbitration order and hence notices of attachment of properties were pasted on his premises, the lawyer said.

Sanjay's lawyer Satish Maneshinde told PTI that "we will have a look at the decree execution order of the High Court and also the IMPPA award and then decide on appropriate action to be taken in this matter."

The properties mentioned in the execution order of the High Court are his residence in Imperial Heights building at Pali Hill, Nargis Dutt Road, Bandra and his office, Sanjay Dutt Productions, Mayfair Melody at Tagore Road in Santacruz.

According to IMPPA award, Noorani had paid Rs 50 lakh to Sanjay for his film in October 2001. The film is 50 per cent complete because the actor failed to give dates for the shooting as a result of which the producer suffered financial loss of Rs 1.53 crore payable to the financiers, a copy of the award, available to PTI, said.

IMPPA had called Sanjay for hearing him but the arbitration committee adjourned the case twice on his request. On another occasion, he failed to appear, the award said.

Part Performance under the Transfer of Property Act & Limitation : The Law

Justice VN Khare

The Supreme Court in Shrimant Shamrao Suryavanshi vs Pralhad Bhairoba Suryavanshi has discussed the law relating to Part Performance under S. 53 A of the Transfer of Property Act and whether such a defence could be taken by a person to protect his property, even though the limitation to bring an action for specific performance to enforce such contract has expired. The Supreme Court while examining the law in England has held as under;

A perusal of Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, we have to interpret the provisions of Section 53-A in a scientific manner. It means to look into the legislative history and structure of the provisions of Section 53- A of the Act.

Earlier, the assistance of historical facts or any document preceding the legislation was very much frowned upon for purposes of construction of statutes. At that time, there was some injunction against applying principle of looking into the historical facts or reports preceding the legislation in construing a statute. However, by passage of time, this embargo has been lifted.

In R.S. Nayak vs. A.R. Antulay - 1984 (2) SCC 183, it was held thus :

" Report of the Committee which preceded the enactment of a legislation reports of Joint Parliament Committee report of a commission set up for collecting information leading to the enactment are permissible external aid to construction. If the basic purpose underlying construction of legislation is to ascertain the real intention of the Parliament why should the aids which Parliament availed of such as report of a Special Committee preceding the enactment existing State of Law, the environment necessitating enactment of legislation and the object sought to be achieved be denied to Court whose function is primarily to give effect to the real intention of the Parliament in enactment of the legislation. Such denial would deprive the Court of a substantial and illuminating aid to constructions.

The modern approach has to a considerable extent eroded the exclusionary rule even in England."

Now the accepted view is that the document or report preceding the legislation can legitimately be taken into consideration while construing the provisions of an Act.

We, therefore, proceed to examine the question before us in the light of facts stated hereinafter.

In England, the provisions of the law of Property Act of the Statute of Fraud provided that no suit or action would be brought on agreement relating to a property which was not in writing signed by the parties. The aim and object of the statute was to protect a party against fraud. However, certain difficulties were experienced when it was found that under an oral agreement a party has performed his part of the contract, yet he was unable to bring any action or suit against other party viz., transferor for a specific performance of the agreement which was not in writing in view of the provisions contained in the Statute of Fraud. Under such situations, transferors managed to play fraud on innocent buyers who entered into an oral agreement and performed their part of the contract. In view of such prevailing circumstances in England, the Court of Equity intervened on the ground of equity and took action to enforce specific performance of a parole agreement. The view taken by the Court of Equity was that the object behind the Law of Property of the Statute of Fraud was to protect against a fraud, but the provisions of Law of Property of Statute of Fraud were being used as an instrument to help and protect fraud. Thus, the Court of Equity did not permit the Statute of Fraud to be used as an instrument to cover the fraud by the transferors where there was a part performance of a parole agreement.

When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A, there arose difference of opinion between various courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. Since there was a difference of opinion on question of the application of English equitable doctrine of part performance in various courts of India, the Govt. of India resolved to set up a Special Committee for making recommendations amongst others whether the British equitable doctrine of part performance be extended in India also. The Special Committee was of the view that an illiterate or ignorant buyer who had partly performed his part of contract required statutory protection. The Committee was of the further view that where a transferee in good faith that lawful instrument i.e. a written contract would be executed by the transferor takes possession over the property, the equity demanded that the transferee should not be treated as trespasser by the transferor and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the Committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired.

The aforesaid recommendation of the Special Committee were accepted by the Govt. of India as the same is well reflected in the aims and objects of amending Act 1929 whereby Section 53-A was inserted in the Act.

The Special Committee's report which is reflected in the aims and objects of amending Act 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53-A is required to be interpreted in the light of the recommendation of Special Committee's report and aims, objects contained in amending Act 1929 of the Act and specially when Section 53-A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53-A even if the period of limitation to bring a suit for specific performance has expired.

But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are

1) there must be a contract to transfer for consideration any immovable property;

2) the contract must be in writing, signed by the transferor, or by someone on his behalf;

3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;

5) the transferee must have done some act in furtherance of the contract; and

6) the transferee must have performed or be willing to perform his part of the contract.

We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation.

Decision on Questions Regarding Admissibility of Document in Evidence : The Appropriate Stage

Justice KT Thomas

Questions as to admissibility of a document in evidence are often raised during a trial. Most Courts while recording such objection tend to delay / postpone the decision as to the admissibilty of the document, at the stage of final arguments. The Supreme Court in Bipin Shantilal Panchal vs State Of Gujarat And Anr has laid down the procedure to be followed by the trial courts while dealing with such objections. The relevant extracts from the said judgment are reproduced hereinbelow;

"On that day the defence raised another objection regarding admissibility of another document. The trial judge heard elaborate arguments thereon and upheld the objection and consequently refused to admit that particular document. What the prosecution did at that stage was to proceed to the High Court against the said order and in the wake of that proceeding respondent filed an application on 9.11.2000, for enlarging him on bail on the strength of the order passed by this Court on 31.3.2000 (extracted above).

We are compelled to say that the trial judge should have shown more sensitivity by adopting all measures to accelerate the trial procedure in order to reach its finish within the time frame indicated by this Court in the order dated 31.3.2000 since he knew very well that under his orders an accused is continuing in jail as an under-trial for a record period of more than seven years. Now, we feel that the Additional Judge, whether the present incumbent or his predecessor, was not serious in complying with the directions issued by this Court, though the parties in the case have also contributed their share in bypassing the said direction.

As pointed out earlier, on different occasions the trial judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the concerned parties to go before the higher courts for the purpose of challenging such interlocutory orders.

It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.

We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.