POWER OF POLICE TO ARREST: RESTRICTIONS ON ITS MISUSE

 

Power of Police To Arrest: RESTRICTIONS on ITS MISUSE

 

                      Section 50 Cr.PC: Correspond to Section 47 BNSS 2024: Scope  redefined

 

The power of police to arrest any individual pursuant to lodging of F.I.R in cognizable offences has always been a debatable point. The provision in respect of such power of police is ingrained in section 50 of Cr.PC and correspond to section 47 of Bhartiy Nyay Surakhsha Sanhita (BNSS).

It is thus pertinent to refer to Section 50 of the Cr.PC before analyzing the aspect further. The Section 50 of Cr.PC is illustrated below as under:

Section 50 of the Cr.P.C. provides as under:

           

Section 50. Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant  shall  forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

 

It is evident from the aforesaid that the law mandates the police officer to inform the arrested individual of the full particulars of the offence or the grounds for arrest. The said obligation is not a ritualistic necessity or mere formality, but the obligation is cast on Police to convey the details to the accused as a safeguard prescribed under law, since the individual's right to liberty cannot be compromised in extra-legal way. What is further significant is the fact that Section 50 Cr.P.C. contains the word forthwith. which implies that the accused will have to be communicated grounds for such arrest so that arrested individual should not be deprived of legal recourse.

The constitutional safeguards are incorporated in the procedural law as procedural safeguards. In the criminal trial, what has to be borne in mind further is that an individual is pitted against the might of the State and the safety valve is accorded through courts of law , since all such aspect of grounds of arrest, necessity of it and whether the arrest is lawful or not shall have to be adjudicated by the Courts.

                                  ANALYSIS

It is a settled proposition in law that the absence of specific grounds of arrest not only violates statutory rights, but the constitutional rights as well, in as much as safeguards are prescribed under section 50 of Cr.PC and also under Article 22(1) of the Constitution. What therefore emerges is that if a person is arrested, he has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy whereof shall have to be provided to the person arrested as a matter of course. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct , since that will enable a person to have full information about arrest so that effective legal measures could be taken by him such as consulting counsel and oppose the police custody remand and to seek bail. Ref: Pankaj Bansal v. Union of India (2023 SCC OnLine 1244

The dictionary meaning of the word ―forthwith‖ as defined in the Shorter Oxford English dictionary on historical principles, fifth edition, volume – 01 A-M is (1) Along with, at the same time; and (2) Immediately, at one, without delay. The term forthwith‘ in legal parlance also generally implies an action that must be taken without unreasonable delay. It suggests promptness and urgency. In Black’s Law Dictionary, 10th Edition as ―forthwith, adv. (14c) 1. Immediately; without delay. 2. Directly; promptly; within a reasonable time under the circumstances; with all convenient dispatch.What thus clearly emerges is that  the grounds for such arrest‖ have to be communicated at the earliest. What is also clear that onerous duty is cast on the Courts to examine the implementation of procedural safeguards emanating out of the constitutional rights, and that have to give strict interpretation.

 

The hon’ble Delhi High Court in a case captioned as MARFING TAMANG @ MAAINA TAMANG Vs STATE OF NCT OF DELHI, bearing No. CRL.M.C. 4391/2024 has analysed the precise definition of the word “forthwith” as used in section 50 of the Code of Criminal Procedure Code, 1973 a Co-ordinate Bench in Pranav Kuckreja Vs State of NCT of Delhi 2024 SCC OnLine Del 9549 it is held by Delhi High Court that  the word “forthwith” appearing in section 50 Cr.P.C. implies that the grounds of arrest have to be communicated to an arrestee at the time of his arrest (and not later).

Similarly, in  Kshitij Ghildiyal vs. Director General of GST Intelligence, Delhi 2024 SCC OnLine Del 8949 it was held likewise.

The decision of the Supreme Court in Ram Kishor Arora vs. Directorate of Enforcement(2024) 7 SCC 599, the hon’ble Supreme Court had rendered judgment in the  context of section 19 of the Prevention of Money-Laundering Act, 2002 („PMLA‟), and it is further held that what arising from the text of section 19 of the PMLA is that the said provision requires that the grounds for arrest have to be supplied “as soon as may be”; however the phrasing of section 50 Cr.P.C. requires that the grounds of arrest be communicated to an arrestee “forthwith”.

 

The Hon'ble Supreme Court titled Prabir Purkayastha Vs. State NCT Delhi D No. 42896 of 2023 wherein it was held by the Hon'ble Supreme Court, the grounds of arrest must be supplied in writing so that he can ensure his legal representation and object the remand Arrest memo perused. Reasons of arrest have been duly mentioned.

Pertinently, in Marfing Tamang (Supra)i it is held by Delhi High Court that furnishing the grounds of arrest in writing just about an hour before the remand hearing in the present case, cannot possibly be due or adequate compliance of the requirements of section 50 Cr.P.C., which mandates that grounds of arrest must be communicated to an arrestee forthwith that is to say simultaneously and immediately upon the arrest of such person.It was further observed that the via media adopted by the learned Magistrate, whereby the learned Magistrate directed the I.O.to serve the grounds of arrest in writing upon the petitioner after the petitioner had already been produced in court; and then observing that since the remand hearing took-place about an hour later, it was sufficient compliance of the law, reduced the petitioner‟s right under section 50 Cr.P.C. to a farce.

It must also be observed that in its decision in Pranav Kuckreja Vs State of NCT of Delhi 2024 SCC OnLine Del 9549, the Delhi High Court had categorically suggested that a column be incorporated in the format of an “Arrest Memo‟ requiring the I.O./A.O. to pen-down the grounds of arrest then-and-there, which would streamline and ensure that such grounds are communicated to the arrestee forthwith at the time of issuing the arrest memo.

The Delhi High Court , after taking note of the provisions of Section 50 of Cr.PC and judicial precedents in this regard has held in Marfing Tamang (Supra) as under:

“36. In order to bring abundant clarity in the matter, this court would also observe that sufficient time must given to an arrestee after the grounds of arrest have been served upon him in writing, to enable the arrestee to engage and confer with legal counsel, the test being that the arrestee must have meaningful opportunity to resist his remand to police custody or judicial custody.

37. Accordingly, remand order dated 18.05.2024 also stands vitiated and is set-aside.

38. As a sequitur to the above, the petitioner is directed to be released from custody, unless required in any other case.

39. However, since the petitioner‟s arrest is being set-aside on the ground of non-compliance of the mandatory requirements of section 50 of the Cr.P.C. and Article 22(1) of the Constitution, but the petitioner must continue to participate in the proceedings arising from the subject FIR in which chargesheet has been filed, this court deems it appropriate to direct that the petitioner  shall be released from judicial custody, subject to furnishing a personal bond of Rs. 25,000/- (Rs. Twenty-five Thousand Only) with 02 local sureties in the like amount, to the satisfaction of the learned trial court”.

The sum and substance of the above discussion is that a constitutional mandate must be understood and implemented in its right and rational perspective, and not casually. It is often pleaded by the prosecution that the narrative in the remand application amounted to grounds of arrest shall not pass muster, in as much as, furnishing the remand application just before the remand hearing would effectively negate and nullify the duty cast on the prosecution to convey and  inform meaningfully about the arrest and that too at the earliest and in a manner prescribed in law and not in mechanical manner. The “Right to life and dignity” under Article 21 of the Constitution which is life and blood of the constitution cannot be allowed to be allowed to be compromised in any manner and section 50 of Cr.P.C corresponding to Section 47 of the BNSS and its terms shall have to complied with in letter and spirit.

                                                   ---------

                                           Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

ARBITRATION-TERMINABLE AGREEMENT AND INJUNCTION U/S 9 OF A & C ACT

 

Arbitration-Terminable agreement and injunction u/s 9 OF A & C Act

The Section 9 of Arbitration & Conciliation Act 1996 (as amended and up to date) is quite significant with a view to accord interim protection to a party to the lis and subject to arbitration dispute. The power of the courts are though quite limited in this regard and as a short term measure interim protection accorded could be accorded to aggrieved party, if the case is otherwise made out. The ultimate remedy however shall be subj3ct to the decision by the Arbitrator u/s 17 of Arbitration & Conciliation Act 1996 and till the pendency of arbitral proceedings and till it culminates in publication of award, the interim protection or order of injunction passed by the Arbitrator may continue. There is another dimension which shall be emphasized herein i.e whether any injunction against an agreement already terminated could be sought and effect of such termination could be relegated back. In other words whether u/s 9 of A & C Act whether even the termination notice could be set quashed or aside or whether any order of injunction restraining the respondent from giving effect to termination notice could be passed? What may follow hence is that assuming termination to be illegal, whether, the same could be set aside or restrain order could be passed by a competent court u/s 9 of the A & AC Act? This aspect shall further be deliberated herein. It may be apt to reproduce the provision for reference before proceeding further. The same is as under:

Section 9: Interim measures, etc., by Court.

- [(1)] [Renumbered as sub-section (1) by Act No. 3 of 2016 dated 31.12.2015.-] A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a Court:

(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:-

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the Court to be just and convenient,

and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

(2 )  Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.

(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.] 

It is observed that often the situation portrayed in this regard is that any predetermined action in illegally terminating agreement shall always be amenable to restrain order under Section 9 of A & C Act and if the action is replete with mala fide, the courts are not powerless in passing restrain order u/s 9 of A & C Act.

It is no res integra that a determinable contract can always be determined and no fetter could be attached thereto. Generally speaking no specific performance could be granted in respect of determinable contract, more so in the proceedings u/s 9 of A & C Act 1996. In any event, any declaration to the effect that termination notice was bad in law would be the ultimate relief and this could be adjudicated only by Arbitral Tribunal. It may further appear that if the contract is determinable, and terminated by one party, Section 14 (1) of Specific Relief Act 1963 comes in and the contract cannot be revived or restored by a Court and specific performance cannot be enforced. Reliance in this regard are as under:

(i)          Planet M Retail Limited Vs Select Infrastructure Pvt Ltd [2014 SCC Online Del 4869

(ii)        MIC Electronics Ltd Vs Municipal Corporation of Delhi (2011) 1 Arb LR 418 (DB)

(iii)       Rajasthan Breweries Ltd Vs The Stroh Brewery Company 2000(55)DRJ (DB)

(iv)       VF Services (UK)Ltd Vs Union of India & Ors 2011 X AD (Delhi) 268

(v)         Bharat catering Corporation Vs Indian Railway catering and Tourism Corporation Ltd (IRCTC) and Ors 164 (2009) DLT 530

The Delhi High Court had to deal with in RPS Educational Society (Regd) Vs DDA OMP 538/2008 with the following prayer u/s 9 of A & C Act as under:

“5. It appears that in terms of license deed, the respondent has authority to cancel the license. Under Section 9 of the Arbitration & Conciliation Act, the Court can pass an interim order to preserve such subject matter of dispute which it considered was necessary to be preserved for adjudication of the dispute. However, an order under section 9 of the A & C Act cannot be passed by the Court directing specific performance of the contract, the breach of which is alleged by the petitioner. This Court in Excel Generators Pvt Ltd Vs IJ M Corporation Berhead OMP No. 241/09( decided on 13^th May 2009) had observed that where a contract is terminable contract and it can be foreclosed, the interim relief under section 9 of the A & C Act cannot be granted for specific performance of the contract. In all those cases where monetary damages can compensate the breach of contract, the Court cannot insist upon the parties that the contract should be specifically enforced”. 

The Division bench of Delhi High Court in Rajasthan Breweries Ltd Vs The Stroh Brewery Company 2000(55)DRJ (DB) has held as under:

19. Even in the absence of specific clause authorizing and enabling either party to terminate the agreement in the event of happening of the events specified therein, from the very nature of the agreement, which is a private commercial transaction, the same could be terminated even without assigning any reason by serving a reasonable notice. At the moist, in case, ultimately it is found that termination was bad in law or contrary to the terms of the agreement or of any understanding between the parties or for any other reason the remedy of the appellant would be to seek specific performance of the agreement and for that view of the matter learned single judge was justified in coming to the conclusion that the appellant had sought for an injunction seeking to specifically enforce the agreement. Such an injunction is statutorily prohibited with respect of a contract which is determinable in nature. The application being under the provision of Section 9 (ii)(e) of the A & C Act, relief was not granted in view of Section 41 (i)© read with Section 41 of the Specific relief Act. It was righty held that other clauses of section 9 of the Act shall not apply to the contract, which is otherwise determinable in respect of which the prayer is made specifically to enforce the same”.

In Bharat catering Corporation Vs Indian Railway catering and Tourism Corporation Ltd (IRCTC) and Ors 164 (2009) DLT 530 it is held by the Division bench of Delhi high Court that:

“5…the scope and ambit of Section 9 is not to restore the contract which has already been terminated. The contract between the respondent and the petitioner created a commercial relationship between the parties. The termination of contract is one of the factors of the contract and as per contract entered into between the parties, the contract could be terminated by the respondent by respondents for various reasons given therein. If the petitioner is aggrieved by the act of the termination of the contract by respondent and considers that the termination was bad or illegal, the petitioner is at liberty to invoke the arbitration clause and claim damages if any, suffered by the petitioner. The contract cannot be restored by the Court under Section 9 nor is it a case where the Court should interfere. In my view prima facie there is no case made out in favour of the petitioner. The petitioner’s conduct as reflected from the impugned letter of termination justifies termination of the contract.”

M/s Sundaram Finance Limited Vs M/s NEPC India Ltd AIR 1999 SC 565

Firm Ashok Traders vs Gurumukh Das Saluja AIR 2004 SC 1433.

In Sundaram Finance (Supra) and Firm Ashok (Supra) it is held that while preferring Section 9 petition, there should be manifest intention and action for seeking invocation of arbitration clause and steps taken in this regard.

The Delhi High Court in a matter captioned as M/s Inter ADS Exhibition Pvt Ltd Vs Busworld International Cooperative Venootschap Met Beperktee Anasprakelijheid had to deal with the following prayer us 9 of A & C Act.

(a) The termination notice dated 15.03.2019 issued against the terms of JVA-II, be quashed and set aside;

(b)  Pass ex-parte interim orders(s) restraining the Respondent to give effect to the termination notice dated 15.03.2019

The Delhi High Court in M/s Inter ADS Exhibition Pvt Ltd (Supra) bearing no. OMP(I) (Comm) 273/2019. In para 40 it is held as under:

“40. Section 41 (e) of Specific Relief Act 1963 (SRA) further provides that an injunction cannot be granted to prevent breach of a contract, the performance of which would not be specifically enforced. In my view the contract between the parties to terminate the same, on breach of the obligation under the contract, cannot be enforced, the bar u/s 41(e) prevents this Court from granting any injunction. Thus, the first relief prayed by the petitioner is declined”.

In M/s Inter ADS Exhibition (Supra) para 46 and 47 are worthy of reference. The same is as under:

46. A joint venture agreement was terminated by one party to the contract. The Division Bench relying on the judgment in the case of Rajasthan Breweries Ltd ( Supra) as well as Section 14 of the SRA held that once the lease had been terminated, passing of mandatory injunction would amount to first creating an agreement between the parties and then enforcing the same. The Division bench set aside the judgment of ld single judge whereby the ld single judge had by way of an interim measure allowed the running of train under the contract in question on the ground of irreparable loss to the Company and inconvenience to public. The Division bench held that the interim arrangement was neither justified nor legally sustainable….”

47. It is clear that in law, once termination of contact takes effect the operation cannot be stayed by an interim injunction. Thus, the second relief sought in the present petition cannot be granted and is hereby rejected.”

 

The most recent judgment of Delhi High Court in the context is captioned as GHH Bumi Mining Services Pvt Ltd Vs Hindustan Zinc Ltd bearing OMP (I) (Comm) 204/2023 had relied upon ABP Network Private Ltd Vs Malika Malhotra 2021 SCC Online 4733. The disputes arose in respect of execution of a project for providing services to ore body to produce mines at Zwarmala Mine in Udaipur District, Rajasthan. It was an extremely capital intensive project and required huge investments of creating resources and creating of infrastructure. The contract was however terminated. The reliance was placed on ABP Network (Supra) to the effect that:

47. A contract which is determinable, whether by efflux of time or at the option of either of, or both the parties and whether preceded by the requirement of issuance of notice or any other pre-termination formality, or not, is, therefore, to be regarded as “in its nature determinable” within the meaning of Section 14(d) of Specific relief Act.:

In GHH Bumi Mining Services (Supra) it is accordingly held as under:

“27. It was thus held that the remedy, in the event of an illegal termination, would only be seek compensation for wrongful termination and not to maintain a claim for specific performance of the agreement was statutorily prohibited, as they were determinable in nature”  

In GHH Bumi Mining Services (Supra) para 32 shall be of worth reference:

32. The Specific Relief Act 1963 was amended in the year 2018 with the objective to give impetus to the legal regime governing enforceability of contract in India. The pre 2018 amendment position was that specific performance of an agreement was an equitable and discretionary relief but after the 2018 amendment, the words “specific performance of any contract may, in the discretion of the court may be enforced” in section 10 of the Act have been substituted with the words “specific performance of a contract shall be enforced subject to [Section 11(2),14 and 16 of the Act]”. Thus, once the factors mentioned in Section 11(2),14 and 16 of the Act are met, it is obligatory upon the Courts to order specific performance of a contract. Fact however, remains that section 41(e) of the Act provides that an injunction can be grated  “to prevent the breach of a contract which would not be specifically enforced”. Furthermore, section 14(d) of the amended Act provides that a contract which is “in its nature determinable” cannot be specifically enforced. fact remains that a contract which is “in its nature determinable” was incapable of specific performance by virtue of the erstwhile section 14 (1) ( c) continues to remain so even by virtue the present section 14(d)..

Finally in GHH Bumi Mining Services (Supra) it is held as under :

34…The question as to whether the termination was strictly in consonance with the contractual terms or not is not to be looked into by this Court, in elaborate and exhaustive manner. Suffice it to say, prima facie, there are braech-notices herein. Even if it was to be held that the termination was bad in law or contrary to the terms of the agreement or understanding between the parties, the remedy for the petitioner would be to seek compensation for the wrongful termination and therefore, in the garb of interim relief under Section 9 of the said Act, the petitioner cannot claim for specific performance of the Agreement. Such grant of injunction is rather expressly proscribed in case of a contract like the present one”.

The Supreme Court has held in the case captioned as Cotton Corporation Ltd Vs United Industrial bank Ltd & Ors (1983) 4 SCC 625 that Section 41 (b) & other provisions of Specific relief act with reference to grant of interim injunction. It is further held that power to grant temporary injunction conferred in aid or as auxillary to the final relief that may be granted. If the final relief cannot be granted in terms of prayer, temporary relief in the same term can hardly if ever be granted.

On the basis of the aforesaid discussion what clearly emerges is that the relief sought u/s 9 of A & C Act 1996 shall relates to the following:

(i)            Extremely urgent relief;

(ii)          For a short duration;

(iii)         For protecting subject matter, preserving it;

(iv)         Securing money in dispute;

(v)           The intention to initiate arbitration and steps of initiating arbitration should be evident;

(vi)         No relief u/s 9 of A & C Act can be granted for restoring terminated agreement or restrain order against termination notice shall not fall within the domain of section 9.

(vii)        No temporary injunction in respect of the terminable agreement;

(viii)       Section 14 (1 (c) (d) and section 41 of Specific Relief Act shall be applicable;

(ix)         Within a short span , in case interim relief is granted (or not granted), the Arbitral tribunal is to be constituted and the Arbitral tribunal shall be competent to extend or to make absolute interim relief if any or grant interim relief in the first instance .

(x)          The gamut of agreement whether termination was bad or claim of damages, if found payable due to breach shall be the domain of Arbitrator.

                                    --------

                       Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

SECTION 88 & ORDER 35 OF CPC- INTERPLEADER SUIT

 

Section 88 & ORDER 35 OF CPC- INTERPLEADER SUIT

 

The Section 88 of Code of Civil Procedure as well as Order XXXV of the said Code contains the provisions relating to Interpleader suits. Whereas, Section 88 contains the criteria and conditions laid down in this regard and also specifies the essential elements of an interpleader suits, Order XXXV contains the procedure. In nutshell, the interpleader suit is a legal safeguard to a debtor and aimed at protecting the rights of individuals and entities who may find themselves caught in the midst of conflicting claims and seeking their due discharge from liability. The details in this regard shall be further delineated below.

A suit cannot be considered an interpleader suit under the Code of Civil Procedure, if the defendants do not assert conflicting claims against each other. The essential ingredients of it thus shall be that the plaintiff must acknowledge the title of one of the defendants or be willing to make payment or deliver the property to the said defendant.

The principles as contained in Section 88 of Code of Civil Procedure may be referred to before proceeding further.

Section 88 of Code of Civil Procedure

Where two or more persons claim adversely to one another, the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.

The criteria are as under:

(i)     Subject matter:

There must be some property involved and may relate to similar nature and may include sums of money or moveable /immoveable property capable of being handed over.

(ii)   Multiple Claims: 

There are more than one party who must assert competing claims against each other regarding the common property.

(iii)  Disinterested Claimant: 

Generally, the plaintiff who brings out a lis before a competent court shall be interested party, however, it is not so, in interpleader suit, who may be initiating the suit, but  shall have no claim in the suit property and the plaintiff shall merely seek to ascertain as to who will be the claimant so as to enable the plaintiff to deliver the property or sums to such claimant on proper discharge. No doubt, what is inherent in it is that plaintiff must be in a capacity to deliver the goods to the rightful claimant.

(iv)  Interpleader Action: 

A person claiming property may commence an interpleader action against all the claimants involved. While, the plaintiff shall be seeking to determine as to which claimant is entitled to receive payment or possession of the property and proper discharge of plaintiff from any liability.

               ORDER 35 OF CODE OF CIVIL PROCEDURE

The Order 35 of Code of Civil Procedure may also be referred to in this context, since the principles and procedure of interpleader suit is also contained in it.

Order 35 CPC

1.   Plaint in interpleader suit

In every suit of interpleader the plaint shall, in addition to the other statements necessary for plaints, state-

(a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;

(b) the claims made by the defendants severally; and

 

(c) that there is no collusion between the plaintiff and any of the defendants.

2.      Payment of thing claimed into Court

Where the thing claimed is capable of being paid into Court or placed in the custody of the Court, the plaintiff may be required to so pay or place it before the he can be entitled to any Order in the suit.

In the interpleader suit the procedure of hearings are contained in Rule 4 of CPC.

 

4. Procedure at first hearing

(1) At the first hearing the Court may-

(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or

(b) if it thinks that justice or convenience so require, retain all parties until the final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed..

(3) Where the admissions of the parties do not enable the Court so to adjudicate, it may direct-

(a) that an issue or issues between the parties be framed and tried, and

(b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner.

The Rule 6 is as under:

6. Charge for plaintiffs costs

Where the suit is properly instituted, the Court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.

 

Clearly, in terms of the proviso of Section 88 of CPC, in case any legal proceedings are ongoing relating to title or interest between the parties, then, till such determination, interpleader suit cannot be instituted.

LAW

(i)          In one of the earliest case captioned as Asan Ali Vs Sarada Charan Kastagir SA No. 1625 & 1686 of 1919, Calcutta High Court has held in para 11 that:

“11. In case of Nanji Koer Vs Unatul Patul 13 IND CAS 40 in the year 1911 “A” brought a suit against “B” for rent. The defence was that she held the land as tenant of “C”.  “B’s defence was investigated & overruled on merit and a decree was passed in favor of “A”.  “B” then  brought a suit for declaration that “C” and A” was her landlord. It was held that the suit being interpleader suit was not maintainable”.

(ii)          The Bombay High Court in a matter reported as Mangal Bhikaji Nagpase vs. State of Maharashtra (1997) 99 BOMLR 91A

 

“7. It will have, therefore, to be seen as to whether, firstly, the suit as filed was maintainable. It will be seen that in the present suit, the plaintiff is not an outsider. In an interpleader suit, the contest is between the defendants for title and the plaintiff has got nothing to do with that contest. In this respect, Rule l(a) or Order 35 of the Code of Civil Procedure mandatorily requires the plaintiff to state that he claims no interest in the subject matter in dispute other than for charges or costs. Now, if we were to see the plaint in the present matter, such statement is very conspicuously absent and, indeed, even if there is any trace of such a statement by stretching the averments, the subsequent application made vide Exhibit 32 gives a complete goby. In that application, the plaintiff displays a marked interest in the suit property. This position is obtained from Rule 4 also where, in the very first hearing, the Court can grant a declaration discharging the plaintiff from all the liability of the defendants and ask the defendants to interplead, by framing necessary issue/s. Where, therefore, the plaintiff claims any interest in the concerned property, the interpleader suit has to necessarily fail”

 

(iii)        The Patna High Court in a matter captioned as & reported as Syed Shamshul Haque v. Sitaram Singh & Ors. AIR 1978 PAT 151

“In our view, the only option given to the court in Sub-rule (2) and Sub-rule (3) of Rule 4 is either to decide the question of title on the basis of admissions of the parties or on the basis of evidence adduced in ordinary manner in any suit, after framing issues and transposing any of the claimants as plaintiff. In the instant case, the plaintiff, respondents 1 to 3 had been transposed to the category of plaintiffs from which it is obvious that the court was not in a position to adjudicate on the basis of admissions of any of the parties and it proposed to proceed under Sub-rule (3) of Rule 4 of Order XXXV of the Code. The trial Court had even framed issues on the basis of the pleadings saying as to whether plaintiffs Nos. 1 to 3 or defendant No. 2 are entitled to the paddy crops in dispute. Of course, it further added as to which of the two sides had been in possession of the disputed land. In the instant case, the dispute relating to the paddy crops from the land which itself was being claimed by both the parties, cannot be decided without deciding title to the land in question. In our opinion, in view of the mandate under Sub-rule (3) of Rule 4 of Order XXXV, it was incumbent upon the trial court to try the suit in the ordinary manner, which means it had also to decide the question of subsisting title in respect of the land from which the crops in question have been harvested”. 

(iv)       The Punjab & Haryana High Court in a matter reported as Jugal Kishore & Anr. v. Bhagwan Das  AIR 1990 P&H 82 on closer analysis of Order XXXV Rule 5 of CPC has held as under:

“According to the said provisions, the tenant could not sue his landlords for the purposes of compelling them to interplead with any persons other than persons making claim through such principals or landlords. Admittedly, in the present case defendants Nos. 4 to 19 are not claiming through the landlords defendants Nos. 1 to 3. They claim themselves to be the owners of the shop in dispute and have denied the rights of defendants Nos. 1 to 3. In these circumstances, the said provisions of O.35, R. 5, CPC, were clearly attracted and the tenant here could not maintain the suit against the landlords i.e. defendants Nos. 1 to 3 compelling them to interplead with defendants Nos. 4 to 19. In Yeshwant Bhikaji’s case (AIR 1940 Bom 414) (supra), it was held that "a tenant is not permitted to deny his lessor's title at the commencement of the tenancy and, therefore, in order that an inter-pleader suit may lie, the claim of the party other than the landlord must be consistent with the title of the landlord at the commencement of the tenancy in question".

(v)         The Punjab & Haryana High Court in a matter captioned as Neeraj Sharma v. The District Sangrur Khadi Gram Civil Revision No. 3973 of 2001 (O&M) have clarified that agents and tenants are not allowed to file interpleader suits against their principals and landlords, as per the principles of Order XXXV Rule 5 of the Code of Civil Procedure. Thus, what follows is that any claim, right and interest in the property without reference to the landlord and demanding rent, shall not be maintainable.

(vi)       The Supreme Court in a matter reported as Rohit Singh Vs State of Bihar ( Now state of Jharkhand) (2006) 12 SCC 734, has held that a counter-claim directed solely against the co-defendants cannot be maintained. The Apex Court has further stated that by filing the counter-claim, the litigation cannot be converted into some sort of interpleader suit. The Apex Court stated in para 21 as follows;

“21. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against the co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an interpleader suit. Here, Defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against Defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter-claim, in our view, should not have been entertained by the trial Court.”

_{The aforesaid discussion if seen in a  broad canvas, then, what emerges is that  whereas principles of interpleader suit is contained in section 88 of Code of Civil Procedure, while procedure is entailed in Order XXXV of CPC  The object of the provision is to accord a safeguard to the such honest individuals who seeks to discharge their liability without being condemned in as much as such persons does not claim any vested interest in the property  and the payment to the claimant itself may be in dispute. It is thus imperative that such persons are accorded leverage and protection from likely excessive costs due to delay. The appellate remedy is also available to any person under Order XLIII of CPC, in case he does not succeed in the court at the first instance.}

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_{Anil K Khaware}

_{Founder & Senior Associate}

_{Societylawandjustice.com}