Tuesday, March 25, 2025

IBC 2016: SECTION 4 & THRESHOLD LIMIT U/S 9 FILED BY OPERATIONAL CREDITOR

 


IBC 2016: Section 4 & Threshold limit u/s 9 filed by Operational Creditor

The Insolvency & Bankruptcy Code (IBC) 2016 and is referred to as “Code” in short) was enacted with a view to accord a comprehensive legal framework for matters relating to affairs of company, its probable rehabilitation or for dissolution of the corporate debtor company, as the case may be for overall good. The underlying object of the Code is to accord viability and fillip to a company which is otherwise sick and only in case a company is found to be unviable, then, the process of dissolution as per the scheme of the Code may begin.  The Rule 6 of the I & B (Application to Adjudicating Authority) Rules 2016 relates inter alia to initiate Corporate Insolvency Resolution Process (CIRP) against a Corporate Debtor (CD) company, on the ground that the Corporate Debtor has committed a default for admitted outstanding amount of more than 1,00,00,000/- ( Rupees, One Crore Only) or more, since the said amount is fixed as a threshold for preferring application before the National Company Law Tribunal (NCLT) by the Operational Creditor (OC) under the aforesaid provisions. Whether the threshold limit of Rs 1,00,00,000/- shall comprise of principal or shall include interest in it or not shall be yet another dimension The NCLT, Bengaluru in a matter captioned as M/s J.R Metal Chennai Ltd Versus M/s NUDPL Ventures Pvt Ltd bearing no. CP (IB) No.32/BB/2022 has dealt with it.

The gravamen of dispute in   M/s J.R Metal Chennai Ltd (Supra) is not being deliberated herein, since, the purpose of the present write up herein, is only to deliberate, on the issue raised above i.e whether for computing a threshold limit of Rs 1 Crore under the IBC by Operational Creditor (OC), whether a sum of Rs 1 Crore shall be arrived at after including interest.

To reiterate, for an application to be filed under Section 9 of IBC, the minimum threshold limits should be Rupees one crore of the Principal amount vide Notification No. 1076 dated 24.03.2020, to trigger Corporate Insolvency Resolution Process under Section 4 of the Insolvency and Bankruptcy Code, 2016. In order to satisfy the minimum threshold of Rs One Crore, the applicant cannot club interest amount to the Principal Amount, and thereby, reach the alleged due amount of rupees one crore only with a view to trigger Corporate Insolvency Resolution Process (CIRP) application as per section 4 of IBC.

The National Company Law Appellate Tribunal (NCLAT) in the matter of Amsons Communication Pvt Ltd Vs. ATS Estates Pvt Ltd, Company Appeal (AT) (Insolvency) No. 540 of 2020, vide order dated 17.01.2022 wherein it is held that claim of interest being a disputed fact by the Corporate Debtor, can be adjudicated only by the court of competent jurisdiction and that the provision of IBC cannot be used for recovery of claim.

The various provisions of the IBC may be deliberated and certain principals laid down by the Hon’ble Supreme Court and NCLAT in this regard needs perusal.

(I) The definition for “Financial Debt” and “Operational Debt” as enumerated in the IBC is as follows:

 

a. Sec 5 (8) “financial debt” means a debt along with interest, if any, which is disbursed against the consideration for time value of money and includes […]

 

b. Sec 8 (21) “operational debt” means a claim in respect of the provision of goods or services including employment or a debt in respect of the [payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority.

 

Thus, financial and operational debt has been defined differently under IBC. It may be noted that definition of operational debt does not deal with interest, whereas financial debt includes interest as well.

 

(II) It is pertinent to note that the distinction in the treatment of “financial debt” and operational debt has been dealt in detail in the case of “ Swiss Ribbons(p) Ltd. V. Union of India” AIR 2019 Supreme Court  739, but the component of “ interest” is not explicitly dealt with.

 

(III) It is relevant to point out that, there is no concept of “time value of money” for a debt to qualify as an “operational debt”. Interest is not necessary for an operational debt, as there, the consideration is the value of the goods or services availed by the corporate debtor from the operational creditor. The interest that is charged for the delayed payment is in the form of penalty and not a return on investment.

 

Since under the IBC only admitted claim shall form part of the application, hence, if in purchase order or agreement, there is no provision of interest and its rate is not specified as admitted in case of default, no interest probably could be included by the Operational Creditor (OC) for initiating CIRP. Therefore, solely, for the purpose of meeting the requirement of section 4 of the Code, sums relating to interest cannot be clubbed with the principal, if the same is not provided for in the Agreement between the two parties. Therefore, with a view to meet the requirement of section 4 of the Code, the interest, which is otherwise not provided for in the Agreement between the two parties cannot be integrated in the claim and that too, only  with a view to meet the threshold limit stipulated under section 4 of the Code.

To conclude, “operational debt” and “financial debt” are treated differently in the IBC (Code). Whereas, in “financial debt” the component of interest is inbuilt, but the same is not so, in case of “operational debt”. Thus, merely with a view to meet the threshold of Rs 1 Crore, in order to be enable operational creditor to prefer a case before NCLT, under the IBC 2016 as Operational Creditor, the component of interest cannot form part of it, if the threshold is otherwise not reached. As the disputed claim cannot be adjudicated by the NCLT and the same shall have to be adjudicated by civil courts only, therefore, only, if the claim of interest is inbuilt in agreement and/or purchase order and in case of default, the interest is found to be payable as per the written understanding and no dispute is raised in this regard, only then, probably the component of interest may form part of the “operational debt” and not otherwise. Thus, generally speaking, in operational debt, in case of application preferred by operational creditor, before the NCLT under the Code, the claim of interest shall not form part of operational debt 

                                           ---------

                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 


 

Wednesday, March 12, 2025

SECTION 25(3) OF CONTRACT ACT & SECTION 18 LIMITATION ACT INTERPLAY

 


Section 25(3) of Contract Act & SECTION 18 Limitation Act INTERPLAY

An interesting issue related to interplay of Section 18 of Limitation Act and Section 25(3) of Indian Contract Act (ICA) was raised before Delhi High Court in a matter captioned as Rajeev Kumar Vs The State NCT Of Delhi & Anr bearing no. CRL.L.P. 212/2021 and decided on 9th August 2024. The issue was raised in a complaint u/s 138 of Negotiable Instruments Act (NI Act). The Criminal Leave Petition was filed under Section 378(4) read with Section 482 of The Code of Criminal Procedure, 1973 ('CrPC') by the appellant , thereby, seeking setting aside of order dated 31st July 2021 ('impugned order') passed by ld MM/NI Act-03/Central/ Delhi in CC No. 510085/2016 titled as 'Rajeev Kumar v Satish Kumar', wherein the Trial Court had dismissed the complaint of appellant and acquitted respondent no.2 for the offence under section 138 of The Negotiable Instruments Act, 1881 ('NI Act'). The Leave to appeal was granted by the Delhi High Court.

FACTS OF THE COMPLAINT

(1 The father of the complaint and accused were colleagues, working in the same bank and branch, and as the accused was in need of money, the father of the complainant had thus lent interest free loan of Rs. 3,50,000/- to the accused in about October 2011. The accused in discharge of its liability, had issued a cheque for a sum of Rs. 3,50,000/- in the name of the father of the complainant in January 2014, as refund of the loan amount. However, subsequently, the father of the complainant passed away in July 2014, before presenting the cheque for encashment, after which accused issued a new cheque bearing No. 201465 dated 31st December 2015 for a sum of Rs. 3,50,000/- ('the cheque in question') in the name of the complainant for repayment of the loan amount. The cheque in question, on presentation, was dishonoured twice with the remarks "funds insufficient" vide separate return memos dated 3rd March 2016 and 9th March 2016. Thereafter, pursuant to legal notice dated 15th March 2016, the said complaint was lodged under section 138 of Negotiable Instruments Act.  Pre-summoning evidence was led and upon finding a prima facie case against the accused, the accused was summoned vide order dated 27th April 2016.

(2) However, the Metropolitan Magistrate ('MM') had dismissed the complaint vide the impugned order and acquitted the accused of the offence under section 138 of NI Act as it was held that in the present case, the debt was not legally recoverable due to limitation.

(3) The relevant observation made by the Metropolitan Magistrate, is reproduced hereunder:

"41. Accordingly, the Court is in agreement with the accused for by way of the present cheque, the complainant is seeking to recover a debt which was no longer legally recoverable on the date of issuance of cheque as it was barred by the law of limitation and the cheque in question did not extend the period of limitation under section 18 of the Limitation Act, 1963."

(4) The ld Magistrate after considering the evidence on record has held that the loan partly stood paid by accused on the date of issuance of the cheque to the complainant, as payments of Rs. 2,55,000/- and Rs. 20,000/- from the account of the accused, into the account of the father of the complainant (during his lifetime) and the complainant respectively, stood proved by the accused.

(5) The appellant had preferred the petition before the Delhi High Court against the impugned order.

CONTENTIONS OF APPELALNT

(i)          The cheque in question was issued by respondent no.2 to the appellant after arriving at an oral and mutual settlement. The said settlement was arrived at after approximately Seventeen (17) months from his father's demise and as such, respondent no.2, had, duly accepted the legal liability on his part.

(ii)        The testimony of respondent no.2 was inconsistent and contradictory. While notice was being framed, under section 251 of CrPC and also in application under section 145(2) of NI Act, respondent no.2 had accepted that a loan from the father of the appellant was taken by him and he had given a cheque of the same amount to the appellant's father. After the demise of the appellant's father, it was duly admitted that another cheque of the same amount was given to the appellant, in exchange for the cheque given by him earlier to appellant's father. It was also contended that out of Rs. 3,50,000/-, respondent no.2 had already paid Rs. 2,75,000/- collectively to appellant and his late father and only Rs. 75,000/- was left to be paid.

(iii)       The respondent no.2 failed to establish that the record of bank transactions from 1st September 2012 to 5th June 2014 were payments towards the loan. In fact, these transactions related to a different liability as being colleagues and working in the same branch and bank, respondent no.2 and the late father of appellant were good friends and appellant's father used to monetarily help respondent no.2 on several occasions.

(iv)       The complaint was filed well within its time, as respondent no.2 himself admitted that he issued the cheque in question to the late father of appellant five to six months before his death i.e. in the month of January or February of 2014, which does not make it a time-barred debt as the complaint was made on 12th April 2016.

However, just in contrast, at the time of his examination in chief and during cross-examination, respondent no.2 had stated that he paid the entire amount collectively to the appellant and his late father and the cheque in question was given in exchange for the first cheque to resolve the 'family dispute' of appellant. The respondent no.2 further contended that the cheque in question was issued in exchange of cheque already handed over to the late father of appellant, in order to resolve a 'family dispute' in the appellant's family at that time.

                          SUBMISSIONS OF RESPONDENT NO.2

(i)          The appellant never gave any loan amount to respondent no.2 and states that there was no agreement executed between appellant and respondent no.2 regarding the new security cheque. Moreover, no date, month or year has been mentioned in the complaint by the appellant in respect of any loan given by the appellant to respondent no.2.

(ii)        The appellant in his cross-examination admitted that respondent no.2 had not taken any amount from the appellant in respect of the cheque in question. The photocopies of cash deposit slips that were brought on record by respondent no.2, to show the banking transactions done by respondent no.2 to discharge his liability towards the loan, remained unchallenged by the appellant. These receipts dated 1st May 2012, 7th June 2012, 31st July 2012 and 3rd October 2012 are issued against the payment of Rs. 15,000/-, Rs. 10,000/-, Rs. 10,000/- and Rs. 10,000/- respectively, in favour of Late Mr. Narain Dass, father of the appellant and by way of these receipts, a proof of repayment of Rs. 45,000/- to the father of the appellant, during his lifetime, is established.

(iii)       The Respondent no.2 has further brought on record statement of accounts of the appellant w.e.f. 1st November 2012 till 28th August 2014, and of Late Mr. Narain Dass w.e.f. 1st May 2012 till 30th June 2014 for Rs. 2,10,000/-, and during cross-examination of respondent no.2, the said payments remained unchallenged by the appellant.

A further plea was taken at a belated stage that as the loan taken by respondent no.2 in the month of October 2011 from the father of the appellant and the cheque in question is dated 31st December 2015, which makes it a time-barred debt.

 

ANALYSIS

The high court upon scrutiny of evidence was of the view that the acquittal of the accused/respondent no.2 was not merited inter alia sue to the following reasons:

(i)           The testimony of the accused itself, ex facie was not believable and was inherently contradictory. On the one hand the accused states in its examination by way of chief that he had taken a loan of Rs.3,50,000/- from the father of the complainant in October 2011 and then states that he repaid the amount of Rs. 2,55,000/- in the period of May 2012 to June 2014 in his bank account.

(ii)        The contention of respondent no.2 is that, this would amount to extinguishment of his debt liability to the extent of Rs. 2,55,000/- and would leave a repayment obligation of Rs. 95,000/- at best. However, it is again stated by him, that he gave a security cheque of Rs. 3,50,000/- as demanded by the father of the complainant due to some 'family dispute'.

(iii)      The respondent no.2 was a bank official and hence it is inconceivable that these transactions were happening without any documentation and secondly, there was no reason for furnishing a 'security cheque' if the father of complainant had a 'family dispute'. Moreover, if the respondent wanted to help his colleague i.e. the father of the complainant, he could have stated that a temporary loan was extended by him, having already extinguished his liability to the extent of Rs. 2,55,000/- earlier. The circumstances in which the 'security cheque' of Rs. 3,50,000/- was given to the father of the complainant is quite specious and unworthy of trust.

(iv)       After the demise of the father of the complainant in July 2014, the respondent no.2 states that he transferred an amount of Rs. 20,000/- in the account of the complainant and paid the remaining amount by cash in installments. This is contrary to the assertion of the respondent no.2 that he had no liability towards the father of the complainant, except for outstanding liability of Rs. 95,000/-.

(v)        Even if it is assumed that there were transfers of amounts to the complainant in order to extinguish the liability towards the father, but then it is without reason as to why subsequently, a fresh cheque (the one which got dishonoured) was again given in the sum of Rs.3,50,000/. The assertion of respondent no.2 in his testimony that he replaced the earlier 'security cheque to the father' with a new 'security cheque to the complainant' seems to be a contradictory plea and ex facie untenable and inconceivable.

(vi)      Why a 'security cheque' shall be given to a person, by somebody, who was a bank official and extremely aware of the consequences of the same is unexplained. Moreover, in his cross-examination, the respondent no.2 further states that he paid Rs. 75,000/- to the complainant, post the demise of his father, in addition to Rs. 20,000/-. Assuming, therefore, he had paid Rs. 95,000/- of the outstanding liability to the father, there can be no conceivable reason as to why he would furnish another cheque of Rs. 3,50,000/- to the complainant.

(vii)    That the extracts from the statement of account in the impugned order at para 22, detailing the transfer of money to the account of the father of Rs. 2,10,000/- and then to the complainant of Rs. 10,000/- after the death of the father cannot explain as to why a cheque of Rs. 3,50,000/- was given subsequently on 31st December 2015. The father of the complainant having passed away, there was no way the complainant himself could explain as to why small driblets of Rs.10,000/- and Rs.20,000/- were being given to his father by the respondent no.2. It was submitted that due to the friendly relationship between the appellant's father and the respondent no.2, there could have been small advances which might have been given to each other in times of need. However, as per the jurisprudence under Section 138 of NI Act read with Sections 139 and 118 of the NI Act, where the presumption of liability is on the accused and it was not for the complainant to prove the liability. The reliance by the impugned order to the lack of proof furnished by the complainant in respect of these amounts, is unmerited.

(viii)  In para 27 of the impugned order, the Trial Court states, "However, the complainant has nowhere furnished any material on record suggesting that there was another liability apart from the present one. The complainant has not brought on record the fact of any liability of the accused towards the complainant or his father, apart from the present one, against which the payment by way of account transfer is supposedly received."

(ix)      The plea of 'time bar', in that the cheque was issued on 31st   December 2015, after four years of the disbursement of loan in October 2011, is also incorrectly analyzed by the Trial Court. The concept relating to limitation in situations of Section 138 of NI Act is that the furnishing of the cheque/negotiable instrument in itself invites a presumption of liability. The liability even if of a previous period, gets revived, due to the furnishing of the cheque, acknowledging therefore, that the repayment is to take place.

(x)        The law relating to a time-barred debt and the revival by virtue of furnishing a cheque by the drawer, is well settled. This is based upon the concept that a promise to pay wholly or in part a debt which cannot be enforced by the creditor being barred by the law of limitation, is a valid agreement, if it is made in writing and signed by the person. This is encapsulated in Section 25(3) of the Indian Contract Act, 1872 ('the ICA') which when read along with Illustration (e), crystallizes the concept clearly.

The Section 25(3) of Indian Contract Act is extracted as under:

"25. Agreement without consideration void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law.

--An agreement made without consideration is void, unless—

... (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. ...

(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs. 500 on account of the debt. This is a contract."

The Division Bench of Kerala High Court in Dr. K.K. Ramakrishnan v Dr. K.K. Parthasaradhy & Anr. 2003 SCC OnLine Ker 420 in dealing with a similar issue stated as under:

“According to the appellant the Section 25(3) of the Contract Act cannot be invoked to interpret the provisions of Section 138 of the Negotiable Instruments Act. However, the high court has held that the said contention cannot be accepted. Section 138 provides for a penalty in a case where a cheque is dishonoured on account of insufficiency of funds. The cheque has to be by way of payment of a "legally enforceable debt or a liability". The liability may arise out of a contract or otherwise. Thus, to determine as to whether or not a liability is legally enforceable, the provisions of the Contract Act cannot be said to be irrelevant. These can provides a cause for a legal liability. Resultantly, when a person writes a cheque and delivers it to a person, the drawee not only gets the civil right to present the cheque and recover the amount, but in the event of the cheque being dishonoured the person who has issued the cheque becomes liable for prosecution under Section 138.

To invoke Section 18 of the Limitation Act, the acknowledgement has to be made before the expiry of the period of limitation. The high court had observed that under Section 25(3), a promise can be made even in a case, where the limitation for recovery of the amount has already expired. Such a promise has to be in writing. It can be in the form of a cheque. When a cheque is delivered to the payee, the person is entitled to present the cheque to the bank and seek payment. In such an event, if the cheque is dishonoured, the liability under Section 138 would arise. It would not be permissible for the accused to contend that the liability was not legally enforceable.

Section 4 of the Negotiable Instruments Act  defines “Cheque” as a "bill of exchange” drawn on a specified banker and not expressed to be payable otherwise than on demand". Cheque thus carries a promise implicitly, unlike a pro-note where the promise is explicit and mandatory. Thus., limitation shall have to be reckoned from the date the cheque and not on the fact 'whether the cheque was honoured or dishonoured'. Under the Negotiable Instruments Act, the issuance of cheque is to be presumed to be issued for discharge of debt. The consequence event whether the said cheque on presentation honoured or not, is immaterial. Thus, even if said cheque is not presented in time and become stale, but it is proved that the cheque was issued with intention to discharge the debt or part of the debt then, the limitation may have to be reckoned from the date of the cheque considering the cheque as acknowledgment of debt. The cheque in the name of the complainant gives him the cause of action to sue and suit being filed within 3 years from the date on which the cheque bear, this prima facie saves the limitation. A  plaintiff cannot be de-suited on the plea of limitation.

A priori the cheque itself becomes a promise made in writing signed by the person to pay wholly or in part debt, which otherwise, may not be payable due to law of limitation. Per section 25(3) of the ICA, this would be an agreement in itself. Section 139 presumption under the NI Act which presumes that the cheque is in discharge in whole or part liability of any debt or liability would therefore, actually come into play. The contrary position of the accused that no debt or liability subsists having extinguished by the law of limitation, would be then unmerited and untenable, since a fresh agreement comes into operation by the tendering of the cheque. By issuing the cheque, the drawer is acknowledging a legally enforceable liability and he ought not be entitled to claim that the debt had become barred by limitation.

There can be an argument that even though section 25(3) of the ICA creates a contractual promise to pay, a civil suit could subsist for enforcing that promise but a penal provision under section 138 of NI Act cannot be invoked basis the explanation to Section 138 which restricts "debt or liability" to "legally enforceable debt or liability." Regarding the facts of the case in question, the presentation of the cheque to the father was 5-6 months before the death of his father i.e. in the months of January/February 2014. On that basis, even though the loan was allegedly taken in 2012 as per the finding of the Trial Court, the earlier cheque presented in 2014 would amount to an acknowledgment in writing of the liability and therefore, a fresh period of limitation would commence as per section 18 of The Limitation Act, 1963. Therefore, the furnishing of the cheque in question on 31st December 2015, would still be for a legally enforceable debt or liability. This is notwithstanding the other aspect, which had been pleaded by the appellant, that he had an oral settlement post the death of the father with the accused.

Mere giving a cheque, without anything more, will not revive a barred debt, because cheque has to be given, as contemplated by the explanatory in discharge of a legally enforceable debt. There is no doubt that in terms of the Indian Limitation Act, 1963, a signed acknowledgment of liability made in writing before the expiration of the period of limitation, is enough to start a fresh period of limitation. Likewise, when a debt has become barred by limitation, there is also section 25(3) of the Contract Act, by which, a written promise to pay, furnishes a fresh cause of action. In other words, what Clause (3) of section 25 of the Indian Contract Act in substance does is not to revive a dead right, for the right is never dead at any time, but to resuscitate the remedy to enforce payment by suit, and if the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by the explanation below section 138 of the Act. As far as this aspect of the case is concerned, the learned Division Bench observed that to determine as to whether or not a liability is legally enforceable, the provisions of the Contract Act cannot be said to be irrelevant. This can provide a cause for a legal liability. Although the primary question answered by the Division Bench was that a cheque becomes a promise to pay under section 25(3) of the Contract Act. Nevertheless, the Division Bench Judgment is relevant to the extent that it holds that a promise to pay in writing as per section 25(3) of the Indian Contract Act, 1872, matures into an enforceable contract, which can be enforced by filing a Civil Suit. If a suit could be filed pursuant to a promise made in writing and signed by the person to be charged therewith, as contemplated by Clause (3) of section 25 of the law of Contract, then, the high court held in Rajeev Kumar (Supra) that the debt becomes legally enforceable and if a cheque is given in payment of such debt is dishonoured and subsequently, the statutory notice is not complied with, then the person making the promise in writing and issuing the cheque, would still be liable to be punished under section 138 of the Act.".

RESURRECTION OF TIME BARRED DEBT

The furnishing of a cheque of a time-barred debt effectively resurrects the debt itself by a fresh agreement through the deeming provision under section 25(3) of ICA. The original debt therefore, through section 25(3) of the ICA, becomes legally enforceable to the extent of the amount the cheque has been given. This resonates also with practical considerations. Persons who have chosen to escape liability, can draw a cheque, in order to clear an earlier debt upon persuasion by the creditor. By the act of drawing a cheque, the promisor i.e. the drawer, is effectively stating that he has a liability to pay the drawee. Drawing of the cheque in itself, is acknowledgment of a debt or liability. It is the resurrection or the revival of the prior debt which would trigger the provisions under section 138 of NI Act.

It was thus held in Rajeev Kumar (Supra) that to deny a complainant/drawee of invoking the penal provisions under section 138 of NI Act, despite the categorical premise of section 25(3) of the ICA recognizing a fresh agreement to pay, would be an unfortunate disentitlement.

In view of above, impugned order whereby the respondent no. 2 was acquitted was set aside by the high court.

                                   -------

                                   Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

Thursday, March 6, 2025

DOMESTIC VIOLENCE CASE & CIVIL SUIT FOR EVICTION: MAINTAINABILITY

 


DOMESTIC VIOLENCE Case & civil suit for eviction: MAINTAINABILITY

The matrimonial cases are on rise and so the element of seeking right to residence in a domestic violence petition, generally by a daughter-in-law who claims to have been in domestic relationship with her spouse and right to residence in shared household. The estranged Father-in-law or Mother-in-law, often files cases for seeking eviction of daughter-in-law from the household on the premise of her being allegedly quarrelsome or hostile to them. The Father-in-law or Mother-in-law, if owns the matrimonial home, then, it is often claimed that a daughter-in-law cannot claim residence in such a household. There has been conflicting judgments, though, in this regard. Yet another dimension is that whether during the pendency of DV cases whether, eviction suit shall be maintainable or not?   

A three judge bench of hon’ble The Supreme Court has recently in a matter captioned as Satish Chander Ahuja Vs Sneha Ahuja AIRONLINE 2020 SC 784 has dealt comprehensively on the above aspect. In this case, questions of law as regards interpretation and working of the Protection of Women from Domestic Violence Act 2005 (hereinafter referred to as “DV Act ) vis a vis filing of a civil suit has been deliberated. The Delhi High Court in RFA No.381/2019 had set aside the decree granted in favour of the appellant (plaintiff) under Order XII Rule 6 of Civil Procedure Code, for mandatory and permanent injunction and had remanded the matter back to the Trial Court for fresh adjudication in accordance with the directions given by the High Court. The plaintiff being aggrieved was the appellant before the Supreme Court.

According to the Delhi High Court, the Trial Court erroneously proceeded to pass decree under Order XII Rule 6 of CPC by not impleading the husband and failing to appreciate the specific submission of the appellant, while admitting the title of the respondent that the suit premises was the joint family property but also losing site of the DV Act. The directions given by the High Court are contained in the paragraph 56 to the following effect:

“56. In these circumstances, the impugned judgments cannot be sustained and are accordingly set aside. The matters are remanded back to the Trial Court for fresh adjudication in accordance with the directions given here-in-below:

(i)            At the first instance, in all cases where the respondent’s son/the appellant’s husband has not been impleaded, the Trial Court shall direct his impleadment by invoking its suo motu powers under Order 1 Rule 10 CPC..

(ii)      The Trial Court will then consider, whether the appellant had made any unambiguous admission, about the respondent’s ownership rights in respect of the suit premises; if she has and her only defence to being dispossessed there from is her right of residence under the DV Act, then the Trial Court shall, before passing a decree of possession against the wife, premised on ownership rights, ensure that in view of the subsisting rights of the appellant under the DV Act, she is provided with an alternate accommodation as per Section 19(1)(f)  of the DV Act, which will continue to be provided to her till the subsistence of her matrimonial relationship.

(iii)      In cases where the appellant specifically disputes the exclusive ownership rights of the respondents over the suit premises notwithstanding the title documents in their favour, the Trial Court, while granting her an opportunity to lead evidence in support of her claim, will be entitled to pass interim orders on applications moved by the respondents, directing the appellant to vacate the suit premises subject to the provision of a suitable alternate accommodation to her under Section 19(1)(f) of the DV Act, which direction would also be subject to the final outcome of the suit.

(iv)      While determining as to whether the appellant’s husband or the in-laws bears the responsibility of providing such alternate accommodation to the appellant, if any, the Trial Court may be guided by paragraph 46 of the decision in Vinay Verma case.

(v)       The Trial Court shall ensure that adequate safeguards are put in place to ensure that the direction for alternate accommodation is not rendered meaningless and that a shelter is duly secured for the appellant, during the subsistence of her matrimonial relationship.

(vi)      This exercise of directing the appellant to vacate the suit premises by granting her alternate accommodation will be completed expeditiously and not later than 6 months from today.”

 

Significantly, the Supreme Court in S.R. Batra and Anr.Vs. Taruna Batra, (2007) 3 SCC 169, where two-Judge Bench of Supreme Court has held that the wife is entitled only to claim a right under Section 17 (1) to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

The issue for determination before the Supreme Court in Satish Chander Ahuja (Supra) was as under:

(1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?

(2) Whether judgment of this Court in S.R Batra Vs Taruna Batra (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?

(3) Whether the High Court has rightly come to the conclusion that suit filed by the appellant could not have been decreed under Order XII Rule 6 CPC.?

(4) Whether, when the defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the Trial Court could have decreed the suit of the plaintiff without deciding such claim of defendant which was permissible to be decided as per Section 26 of the Act, 2005?

(5) Whether the plaintiff in the suit giving rise to this appeal can be said to be the respondent as per definition of Section 2 (q) of Act, 2005 ?

(6) What is the meaning and extent of the expression “save in accordance with the procedure established by law” as occurring in Section 17(2) of Act, 2005 ?

(7) Whether the husband of aggrieved party (defendant) is necessary party in the suit filed by the plaintiff against the defendant?

(8) What is the effect of orders passed under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction?

It is significant to point out that vide a comprehensive judgment, the Division Bench of Delhi High Court in Navneet Arora Vs Surender Kaur & Ors, 2014 SCC Online Del 7617 had considered the various aspects of Act, 2005. Dealing with right of residence in paragraphs 58 following was held:-

“58. It may be highlighted that the Act does not confer any title or proprietary rights in favour of the aggrieved person as misunderstood by most, but merely secures a ‘right of residence’ in the ‘shared household’. Section 17 (2) clarifies that the aggrieved person may be evicted from the ‘shared household’ but only in accordance with the procedure established by law. The legislature has taken care to calibrate and balance the interests of the family members of the respondent and mitigated the rigour by expressly providing under the proviso to Section 19 (1) that whilst adjudicating an application preferred by the aggrieved person it would not be open to the Court to pass directions for removing a female member of the respondents family from the “shared household”. Furthermore, in terms of Section 19 (1)(f), the Court may direct the respondent to secure same level of accommodation for the aggrieved person as enjoyed by her in the “shared household” or to pay rent for the same, if the circumstances so require.

It may appear that ‘radical’ provisions comprised in the “Protection of Women from Domestic Violence Act”, 2005, but, it  must be understood and appreciated in light of the prevalent culture and ethos in our society. The broad and inclusive definition of the term ‘shared household’ in the Protection of Women from Domestic Violence Act, 2005  is in consonance with the family patterns in India, where married couple continue to live with their parents in homes owned by parents”.

The above judgment, according to Supreme Court had laid down correct proposition in law and  judgment in S.R Batra (Supra) in so far as it interpret the definition of shared household of Section 2 (s) does not lay down the correct law.

In Satish Chander Chander Ahuja (Supra) the Supreme Court has held as under:

“136. Therefore, on conjoint reading of Sections 12(2), ,17, 19,20,22,23,25 and 28 of the D.V. Act, it can safely be said that the proceedings under the DV Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section26  of the D.V. Act are independent proceedings, like the proceedings under Section 125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/ family court for the reliefs under the Hindu Adoption and Maintenance Act. However, as observed hereinabove, the findings/orders passed by the one forum has to be considered by another forum”.

The Supreme Court in Satish Chander Ahuja (Supra) has further examined the consequences and effect of orders passed under Section 19 of D.V. Act, 2005 on civil proceedings in a court of competent jurisdiction. Thus, our consideration and exposition are limited qua orders passed under Section 19 of D.V. Act only, i.e., a conflict between orders passed in a criminal proceeding on a civil proceeding.

In para no. 157, therefore, the Supreme Court had concluded in Satish Chander Ahuja( (Supra) as under:

(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under DV Act 2005 .

(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.

(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the par ties in the suit.

The appeal of the appellant in Satish Chander Ahuja (Supra) was dismissed and the order of the Delhi High court was held to be correct.  

Therefore, there is no ambiguity as regards the maintainability of eviction suit against a daughter –in-law filed by father-in-law on the premise that he being owner, should be entitled to seek eviction of daughter-in-law, but, the same shall have to be decided after leading evidence and not in summary manner, such as by preferring application under Order 12 Rule 6 of CPC. The pendency of DV Act case and application of father-in-law for seeking eviction in DV Act, even if does not pass muster, there is no embargo to prefer civil suit and plea of res judicata in the context may not be tenable. The civil suit on the basis of title and after ascertaining title on the basis of evidence lead during trial shall be entitled to pass the judgment in accordance with law. Moreover, what cannot be lost sight of is that even if a daughter-in-law is evicted, vide a judgment and decree, alternate accommodation to her is also required to be provided within stipulated time.

                                           --------

                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com


 

 

IBC 2016: SECTION 4 & THRESHOLD LIMIT U/S 9 FILED BY OPERATIONAL CREDITOR

  IBC 2016: Section 4 & Threshold limit u/s 9 filed by Operational Creditor The Insolvency & Bankruptcy Code (IBC) 2016 and is ref...