The
Hon’ble Chief Justice of Punjab & Haryana High Court,
Chandigarh.
Secretary
legal/legislative affairs, Punjab.
Suggestions for
PREVENTING back log IN LOWER JUDICIARY
Prevention is better than cure. Reduce points of Dispute
Cases under Section 138 NI Act.
Most of
the cases are under this section. Every legal document including bears a column
for date, place & Signature. Column for Date is meant for the mentioning
the date when the document is signed. Similarly the column of date mentioned in
Cheque means the date when cheque is signed. It cannot be treated as anything
else. For a cheque to be valid wef from a future date there should be two
columns for date. One when cheque is drawn / signed, 2nd when cheque
will be valid. A bill of exchange mentions two dates, one when the bill of
exchange is drawn and 2nd when the bill of exchange is to be paid.
In existing cheques, there is only one column for date meant for the date when
cheque is drawn and signed. A judge which misinterpreted a post dated cheque
having one date column clearly misinterpreted it as bill of exchange and gave
legality to a void document.
A large number of disputes relates to a few acts only which can be
curtailed by either amendments of Acts or by enforcement of Acts. In my letter
of 1st January 2010, I had taken up disputes under
i) Section 138 Negotiable Instrument Act/
ii) Rent Act
iii) Power of Attorney Act
Proviso to Section 138 also clearly mentions complaint has to be filed
“within a period of six months from the
date on which it is drawn”. The literal meaning of ‘drawn’ is the date when
cheque is written and signed. One cannot draw, sign, & submit a document in
court on 5.10.2009 and put date as 1.12.2009. Such a document will be void on
the face of it. There is no provision of post dated document in law and in
particular NI Act. The present problem which has been created by a judge has to
be removed by another Judge.
Cases under Rent Act.;
Cases
of personal necessity should be decided on the basis of sworn declaration that
the landlord will neither sell the property nor let it out for a period of ten
years next. If a landlord violates his declaration, following options can be
taken:-
A)
Tenant to be put back in possession.
B)
Tenant to be granted compensation on the rent being paid by him.
(Such
compensation to be a statutory charge on the property of landlord. Court should
send copy of the declaration to Patwari for marking red entry in Jamabandi,/ to
Estate officer for recording state lien/charge for enforcement of declaration.)
C) Landlord to be
convicted for perjury for minimum period of seven years.
D) Any transfer of
such property during the continuation of declaration to be declared void.
Note:
The Act will require amendment.
Power of attorneys Act; Another major disputes relates to sale of
properties on the basis of Power of Attorneys, their misuse etc. Such
transactions also causes major loss of revenue to State. Donee should be
restricted to 1st degree blood relation to be used only in case of
physical disability/ distance or any other personal difficulty etc.
Note:
This will require amendment of Power of attorney Act and strict enforcement of
Registration Act.
Dated
01.01.2010
KD Aggarwal
On October 11, 2011, Supreme Court held;
“A power
of attorney is not an instrument of transfer in regard to any
right, title or interest
in an immovable property.
The power of attorney is creation of
an agency whereby the grantor authorizes the grantee to do the acts
specified therein, on behalf
of grantor, which when
executed will be binding on the grantor as if done by
him (see section 1A and section 2 of the Powers of
Attorney Act, 1882). It
is revocable or terminable
at any time unless it is made irrevocable in a manner
known to law. Even an irrevocable attorney does not have the effect of
transferring title to the grantee.”
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