arbitration agreement unregistered instrument validity and enforceability

IN THE SUPREME COURT OF INDIA:  CIVIL APPELLATE JURISDICTION

Subject: ARBITRATION MATTER S.L.P. (CIVIL) NO.31311/2011 Date of Disposal:  13/07/12

Title: NAINA THAKKAR  VERSUS  M/S ANNAPURNA BUILDERS                     

4.   In M/s SMS Tea Estates Pvt. Ltd. Vs M/s Chandmari Tea Co. Pvt. Ltd (2011 (7) SCALE 747 case   (supra),  this  Court  was concerned with, inter alia, two questions  - 

(i)    Whether  an  arbitration agreement  contained  in  an  unregistered  (but compulsorily  registrable) instrument is valid  and  enforceable?,  and

(ii)   Whether  an arbitration agreement in an unregistered instrument which is not duly stamped, is  valid and enforceable?

5.   While dealing with question (i), the Court  referred  to  statutory provisions contained in Sections 17(1)(d) and 49 of  the  Registration  Act, 1908, Section 107 of the Transfer of Property Act, 1882, Section 19  of  the Indian Contract Act, 1872 and Section 16 of  the  Act.  While dealing  with question (ii), the Court  referred to Sections 33, 35,  38  and  40  of  the Indian Stamp Act, 1899 and Section 49 of the Registration  Act,  1908.   The Court then summed up the procedure  to  be  adopted  where  the  arbitration clause is contained in a document which is not registered (but  compulsorily registrable) and which is not duly stamped as under :

(i)        The court should, before admitting any document  into  evidence  or acting upon such document, examine whether the instrument/document  is  duly stamped and whether it is an instrument which is compulsorily registrable.

(ii)       If the document is found to be not  duly  stamped,  Section  35  of Stamp Act bars the said document being acted upon.  Consequently,  even  the arbitration clause therein cannot be acted  upon.  The  court  should  then proceed to impound the document under  section  33  of  the  Stamp  Act  and follow the procedure under section 35 and 38 of the Stamp Act.

(iii)      If the document is found to be duly  stamped,  or  if  the  deficit stamp duty and penalty is paid,  either  before  the  Court  or  before  the Collector (as contemplated in section 35 or 40 of the Stamp  Act),  and  the defect with reference to deficit stamp is cured, the  court  may  treat  the document as duly stamped.

(iv)     Once the document is found to be  duly  stamped,  the  court  shall proceed to consider whether the document  is  compulsorily  registrable.  If the document is found to be not compulsorily registrable, the court can  act upon the arbitration agreement, without any impediment.

(v)      If  the  document  is  not   registered,   but   is   compulsorily registrable, having regard to section 16(1)(a) of the  Act,  the  court  can  de-link the  arbitration  agreement  from  the  main  document,  as  an agreement independent of the other  terms  of  the  document,  even  if  the document itself cannot in any way affect the property or cannot be  received as evidence of any transaction affecting such property. The  only  exception is  where  the  respondent  in  the  application   demonstrates   that   the arbitration agreement is also void and  unenforceable,  as  pointed  out  in para 8 above. If the respondent raises any objection  that  the  arbitration agreement was invalid, the court will consider  the  said  objection  before proceeding to appoint an arbitrator.

(vi)     Where  the  document  is  compulsorily  registrable,  but  is  not registered, but the arbitration agreement is valid and  separable,  what  is required to be borne in mind is that the  Arbitrator  appointed  in  such  a matter  cannot  rely  upon  the  unregistered  instrument  except  for   two purposes, that is (a) as evidence  of  contract  in  a  claim  for  specific performance and (b) as evidence of any  collateral  transaction  which  does not require registration."

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Contractual Documents : Leave and License Agreement

Contractual Documents : Leave and License Agreement

Question: What is Leave and License Agreement ?

Answer:Though agreements are prepared as Leave and License Agreement but there is no statutory definition for the same in India. One of the dictionary meaning of "Leave" is permission to do something and statutory definition of License is "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license" as per section 52 of the Indian Easement Act 1882 (5 of 1882).

The word license (also Licence) should not be confused with the license issued either by the Government or any local or other authority to conduct a business, to produce or sell any article etc means permission by the the Government or any local or other authority to do a particular activity.

The License i.e. the subject mater of conveyancing is a right to do, or continue to do, in or upon the immovable property of the grantor and such right does not amount to an easement or an interest in the property. 

Section 4 of the Indian Easement Act defines An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.



Though the easement is a right of the owner and the occupier as well and further licensee after getting license becomes occupier does not get this right (easement).


So far as the  the an interest in the property is concern, the same has not been defined anywhere in the Indian Statues. Some judicial pronouncements have been delivered upon this by the Hon'ble Court in India but the same are also not elucidative. A licence is a privilege to do something in a property, otherwise not permissible. Suresh Chander Vohra v Union of India A. I. R. 1987 Delhi 154




 

Adult children need parents’ approval to stay with them: Bombay high court
MUMBAI: Children, after becoming adults, need their parents' permission to stay in their personal property, the Bombay high court has observed. The court was hearing a dispute over a flat between a 73-year-old resident of Dadar Parsi colony and his 35-year-old daughter who he wants kept out of his house.

"It is the responsibility of parents to take care of their minor children, but after children have attained majority, they do not get legal rights to reside in the personal property of their parents," said Justice J H Bhatia. "They can live in the house of the parents only with the consent of their parents and not otherwise."

The court observed that in the case of daughters, when they get married they become part of the husband's family. "When a daughter gets married and leaves the house of the father to reside with her husband, she ceases to be a member of the father's family and becomes a member of the family of the husband where she has got certain rights under the law. After marriage when she goes to the house of the parents, legally she is only a guest in the house and does not have a legal right to continue there. She can stay there as long as her parents permit her but she cannot force herself on her parents in the house."

The court rejected Kashmira Robert Lobo nee Kashmira Soli Batiwala's pleas that she should be recognized as a tenant in the Dadar Parsi Colony flat that was originally in the name of her grandmother.

'Tenancy can't be transferred to grandkids'

The judge said that since her father, Soli Bahadurji Batiwala, was alive he would be the deemed tenant and her rights would come into effect only after he passed away.

"When the tenant (the grandmother) was living with her children, at the time of her death, her grandchildren cannot be treated as members of her family and the tenancy cannot be deemed to have been transferred ,'' said the judges.

The flat which is at the centre of the dispute is located in , Parsi Colony, Dadar (East). The flat belongs to the Parsee Central Association Co-operative Housing Society Ltd and Batiwala's mother was the original tenant. When she passed away in 1980, the tenancy was transferred in the name of Batiwala . Batiwala's daughter married in 1998 and went to live with her husband. Last year, Batiwala moved the city civil court seeking an injunction against his daughter and her husband.

He urged the court to restrain his daughter and his son-in-law from interfering in his possession of the property and restrain them from entering or staying in the Parsi Colony flat.

Kashmira objected, saying she was a deemed tenant in her grandmother's property and said the matter should be referred to the small causes court, which hears disputes arising out of tenancy matters. The civil court dismissed her application, following which the case came up before the HC.

Justice Bhatia said that when Kashmira's grandmother died, her father as the son would be the deemed tenant. "His daughter, who was just aged about four years at the time of death of her grandmother, could not be deemed a tenant in respect of premises on the death of her grandmother," said the judge, adding, "After the death of the parents, she may have certain rights in their property but during the lifetime of the parents, she cannot claim any right in the property of her parents." The court refused to stay the order.
source:http://ping.fm/XnwSv

Watch how and when you eat
Yoga and ayurveda teacher Amrit Raj gives advice on how and when you must eat your food.In general,eat your food with relish for best results,he says


First and foremost,eat to live,but dont live to eat.Second,eat food that is beneficial and last,eat in moderate quantities.There are several dos and donts formulated about food by ancient sages that are useful to abide by.For instance,never eat your food in ahurry or when you are in a disturbed state of mind.Eat when you have regained your peace of mind when you are calm.
Always wash your hands before sitting down to eat.Take your meal in a clean,well-ventilated and welllighted dining area.There are also rules for how much you should eat as well.Fill half your stomach with solids,a quarter of your stomach with water and liquids and keep a quarter empty for air and the digestive process.
Ayogi or committed yoga practitioner takes only one full meal a day.He begins his day with a light breakfast,and this is the best formula for living a healthy and hearty life.A person who eats two full meals a day might live mostly to eat and will suffer from illnesses from time to time.
Aperson who greedily eats more than twice will definitely be ill,and in yoga and ayurveda,he will be called a r o g e eor a sick person.Such a person is gluttonous and always ill.
You should also watch how you eat it shouldnt be either too fast or too slow.Eating slowly leads to excessive consumption and eating fast is not good for the digestive process.
There are other guidelines too.Dont do yoga and other exercises immediately after taking food.It is better,therefore,to do yogic exercises early in the morning or in the evening when the stomach is empty.After you have finished your exercises,take food after one hour.Dont go to bed immediately after your supper either.Wait for an hour after food before you retire to bed.
Source:http://ping.fm/Fbu9B

Court slaps Rs.20,000 fine a "chronic litigant" for unabatedly abusing the process of law
New Delhi, Jan 29 (IANS) Abusing the process of law by questioning investigating agencies and maligning the judiciary has cost a non-resident Indian (NRI) Rs.20,000.

The Delhi High Court order came on a plea of NRI N.S. Hoon seeking compensation of Rs.5,000 crore from the Central Bureau of Investigation (CBI) for allegedly implicating him in a criminal case.

He sought action against the erring officials of CBI for harassing him for 25 years.

Justice M.L. Mehta said: "In the present petition, not only the CBI and police are questioned but even the judiciary and the government are sought to be maligned in a highly derogatory and utterly contemptuous manner. The unparliamentary language used by the petitioner is evident by words like 'slave magistrate', 'obliging judge', 'corrupt CBI'."

The court said that such petitions were nothing but a waste of precious judicial time and mockery of the legal process.

"The conduct of the petitioner is highly condemnable and deserves no consideration even due to his age as he has unabatedly abused the process of law in intimidating and obstructing public officials from discharging their duties," the court said.

Hoon, who had acquired British citizenship, had argued that the officers of CBI acted against him at the instance of some influential people and they should be prosecuted under law.

He claimed to have undergone mental agony and physical suffering in the past 25 years and sought financial compensation.

"I was arrested on May 14, 1987 despite an anticipatory bail order from the Delhi High Court. They seized my passport for such a long time causing huge losses to my business abroad," Hoon said.

He added even the trial court had acquitted him from all the charges under the Foreigners Act.

According to the CBI, Hoon concealed his identity as a British citizen during his stay in two different hotels, in 1986-87, which was a criminal offence.

The CBI alleged that during his stay in Delhi's Ambassador Hotel, the petitioner paid the hotel tariff in rupees whereas he should have paid in British pounds.

Similarly, he stayed at an hotel in Jaipur and paid Rs.8,000 in Indian currency.

Justice Mehta called the petitioner a "chronic litigant" who filed cases against the authorities whenever any step was taken against him due to his activities which were contrary to law.

Source:http://ping.fm/SFnSV

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