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CIVIL MATTERS

Civil Disputes are majorly related to immovable properties, recovery of money, compensation and any other dispute those are not criminal in nature. Partitions of property, Recovery of Possession, Recovery of Money due, Enforcement of Contract, and Injunctions of Status Quo are a few examples of Civil Suits. In a civil suit the person filing the suit has to pay a Court Fee for the valuation of the Suit; however no court fee is charged if the case has been filed by a Woman. A Civil Suit is in a sense the best way to receive a relief as any of the Dispute in a civil suit is analyzed minutely and all the related issues are examined before a final judgments is passed. The Courts are provided with inherent power in the interest of justice thus in the absence of documentary proof also oral evidence is admissible. The Civil Courts have the Power to establish Commissions who provide field enquiry report or physical inspection report. Any person being aggrieved by any Order or Judgments of any civil Court can raise an appeal before the District Court or the High Court. The Civil Procedure Code, The Transfer of Property Act, The Specific Relief Act, The Benami Property Act are some of the few Acts that are followed by Civil Courts.

CRIMINAL MATTERS

All those matter that involve injury or harm to the Body or Property of a person or violation of any fundamental rights falls in to the category of Criminal Case. A person can initially approach the local police for the redressal of the same or the police can take cognizance of the matter, however if the police does not register the Complaint by the aggrieved person, then the person can approach to the superior police officials or else can file a case before the Magistrate for order to the police officials to register the FIR and conduct investigation of the matter. Protection of the Citizens being the duty of the State, no court fees is required for criminal cases, apart from cheque dishonor cases. The Code of Criminal Procedure, The Indian Penal Code, The Domestic Violence Act are some of the few Acts that are followed by Criminal Courts.

“The Hon’ble Supreme Court in a judgment observed that the police system in India still has the effect as it was when India was under the British Rule” . In each and every case the courts have taken a view that the society to receive the best behavior and co-operation from the police department. “No person is guilty unless proven guilty with any reasonable doubt”. Police department is very important for a good society but at the same time we need the Police Department to understand the same.

FAMILY COURTS

With a lot of hope and aspiration people bond together in the holy matrimony but things always do not go as we desire and plan or wish. An unhappy matrimony leads to frustrating quarrels, taunts, depression and finally agony to both the parties and thus under such a condition it’s better to get rid of it rather than to hold it and suffer. The family courts have always been on the side to protect the matrimony bond as far as they can, the Court even after the parties appear for dissolution of the marriage advice them to attend Counseling and have at least three Conciliation meeting before the trail of the dispute. It has been the effort of the courts to bring the parties to a mutual understanding and thereby drop the Proceedings, however when the parties claim that separation is in the best interest of the parties the court take the hard decision of separation of the Parties.

There are many aspects in family cases, Bigamy, Cruelty, Dowry Demands, Curtailment of Freedom, Non Maintenance of the Spouse and Child, Desertion are a few examples of Family Disputes. There cannot be any justification for why a person shall suffer in the hands of the other. The Society and the Courts have been compassionate towards the aggrieved persons and have always encouraged raising their voice rather than suppressing the same under any influence, fear, pressure or force. Family Disputes are not solely dependent on documentary evidence as most of the acts and incidents take place inside closed rooms. Family Disputes have the aspect of both the Criminal and Civil, thus part from compensation, maintenance orders, monetary relief, protection orders, restrain orders, injunction orders, there is also the provision of imprisonment and fine against the accused person.

The Domestic Violence Act, The Hindu Marriage Act, The Dowry Prohibition Act are a few acts that are being followed in the Disputes relating to family matters. In Family Court the Court Fee is paid on the valuation of the suit and the petitioner is free to fix the Suit Value as per his own Convenience.

LABOR LAWS/ EMPLOYMENT DISPUTES

It has been a common understanding that a company is just for profit making by using the best resources at the cheapest cost and with the at most utility and under this principle well embodied in the minds of the people they allow their employers exploit, harass, and use at own wills and whims. The methods of exploitation vary from organization to organization and from officer to officer. Sometimes they are gender based, preference based, necessity based, fear based, we can say they somehow find a way or the other to exploit. However the reason being basically two- People are unaware of their rights and are under the threat of a good career. Peer pressure and monetary need are obviously two more psychological factors that play a major effect. Denial of employment, Stopping salary, stop to entry the office, asking to work at holidays or late in the night, abuse, arbitrary transfer, denial of promotion, and many more and more.

We have been declared free since Independence but are we really free yet in our own earning place. Sexual Harassment at Workplace, Maternity Benefit Act, Equal Remuneration Act, Child Labor (Prohibition & Regulation) Act, Sexual Harassment at Workplace are some of the acts that provides the rules for the benefits of the Employees at Work Place.

Labor Court Cuttack and Bhubaneswar

A Person with a Salary of Rs. 15,000/- per month qualifies within the definition of Labor as well as if he does not have the authority to provide employment to any other person reporting to him. A three set of Complaints has to be drafted and Submitted at the Labor Office along with documents showing employment. A person shall be considered as a permanent employee if he has served the Company for more than 240 days (Leaves and Holidays inclusive). If the Employee does not appoint an advocate then the Employer is debarred for engaging an advocate to defend himself. The Adjudication of the matter is with a spirit of speedy disposal. And once a judgment has been passed in favor of the Employee then during the pendency of any appeal the employer is bound to provide half of the last paid salary to the Employee.

DISHONOR OF CHEQUE

The Dishonor of a Cheque or a negotiable instrument is governed under the provisions of Negotiable Instrument act. For a dishonor of a Cheque No police report can be made. The matter being quasi civil in nature has to be filed as a Complaint Case in the Criminal Courts having jurisdiction to adjudicate the same after the compliance of the steps as prescribed has been dully complied by the holder of the cheque.

The steps those are required to be taken before a case has been filed are:

1. The cheque has been presented within its validity. A cheque though has been dishonored and returned can be presented again if it has its validity. As per the Banking Norms a cheque is valid for 90 days from the date that has been notified on it. A modified and altered cheque or over written cheque shall be considered as invalid.

2. As the cheque gets dishonored and Notice for the same has been issued by the bank. The holder of the cheque has issue a demand Notice to the issuer of the cheque demanding him to pay the amount as a legally enforceable debt. The Demand Notice has to be issued within 30 days of the Notice of the Cheque Dishonor by the Bank.

3. The Demand Notice shall provide at least 15 days of time for the Issuer of the dishonored cheque to make the payment. No case can be registered within this period as there is a possibility that the issuer may pay the due amount without taking the matter into a Dispute. The demand notice should be served and the postal receipt of the same has to be retained by the holder of the cheque.

4. If No payment has been made within the stipulated period then the holder of the cheque can file a criminal complaint case within 30 days from the lapse of the payment date as notified to the issuer of the cheque.

5. The holder has to provide all the documents of the transaction that has taken place within the parties; the Contract between the parties (if any), the dishonored cheque, the bank notice, the demand notice, and any other documents as available with the holder of the cheque.

The complaint case has to be filed with a Nominal Court fees; in the courts of Bhubaneswar the court fees for a dishonor cheque of worth up to Rs. 50,000/-(Rupees Fifty Thousand only) is Rs. 500/-(Rupees Five Hundred Only) and for any worth above is Rs. 1000/- (Rupees One Thousand Only). And after the receiving the required documents and finding the same is liable for prosecution under the Negotiable Instrument Act, the Hon’ble Court Issues Summon to the Accused Person to Appear either personally or through a pleader.

On Appearance of the Accused Person, the Court May upon an application/ Petition U/S 205 Cr. P C may dispense the personal appearance of the Accused Person on day to day basis and the same can be done through his pleader.

If the act of Dishonor of Cheque has been committed by a Company or any person in charge of the company or any authorized representative of the Company then they are prosecuted U/S 138 Read With 141 of the Negotiable Instrument Act. In such case the Pleader appearing on behalf of the Accused Person Apart from the application/ Petition U/S 205 Cr. P C shall also provide an application U/S 305 Cr. P C.

By the order of the Hon’ble Supreme Court, the Accused Person has been provided with the liberty to avoid Imprisonment and fine or penalty for being convicted under the provision of the Negotiable Instrument Act by entering into a compromise with the Complainant. The Hon’ble High Court of Orissa has also has taken a similar view in many cases and have provided the guidelines that an accused person may at the initial stage of the proceedings of the case may compound the offence by way of Mutual Understanding and by payment of the due amount payable along with other cost and interest that has been incurred by the Complainant.

As per the New Amendments in the Negotiable Instrument Act it has been provided that a person pleading of Not Guilty and the Court finding Prima Facie to proceed in the matter may ask the Accused Person to Deposit in the Court, an amount equivalent to 20 % of the Amount payable, along with a similar amount to the Complainant. However if the Accused is found not guilty of the offence then the Complainant shall refund the deposited amount with interest to the Accused Person.

A Cheque issued as security and /or for any future uncertain liability shall not attract the provisions of the Negotiable Instrument act.

The Provisions of the Negotiable Instrument Act and Criminal Procedure Code are applicable in the Proceedings for a Dishonor of Cheque.

REGISTRATION

Registration of Documents is Entrusted on the Sub Registrar Office. The Sub Registrar office of Bhubaneswar and Cuttack is within the Court Premises respectively. The Provisions of Indian Registration Act, Trust and Society Act, Partnership Act, Hindu Marriage Act, Special Marriage Act, Transfer of Property Act, are some of the acts the provisions of which is Followed in the Sub Registrar Office Bhubaneswar. Orissa Citizen Act- Ensures the issuance of the certificates and Documents within specified time. The Registration at Sub Registrar of Bhubaneswar and Cuttack can be further Authenticated by an Application at IGR (Inspector General of Registrar) at Cuttack , which is within the Court Premises of High Court of Cuttack. The IGR Cuttack specifically deals with Society Registration and Company and Firm registration.

1. Sale Deed
2. Gift Deed
3. Will
4. Rent/ Lease Agreement
5. Company/ Firm Registration
6. Society /Trust Registrations
7. Power of Attorney Registration.
8. Marriage Registrations.
9. Partnership Deeds
10. Agreements/ Affidavits.

REGISTRATION OF MARRIAGE

In Bhubaneswar, Odisha, the Marriage Registration and issuance of Marriage Certificate is conducted by Two Departments:

1. Bhubaneswar Municipality Corporation (BMC) 2. Sub Registrar Office, Bhubaneswar. (SRO)

The Marriage Certificates are Two Types:
a. Pre Marriage Registration. (Marriage Registration of Unmarried Couples)
b. Post Marriage Registration. (Registration of Marriage Already Celebrated as per Customs and Rituals)

Pre Marriage and Post Marriage Registration is conducted by the Sub Registrar Bhubaneswar, and whereas only post marriage Registration is Conducted by the BMC. The Difference is basically the BMC issues Registration of marriage certificates to the married couples who are native of Bhubaneswar and have their own Residential House in Bhubaneswar. On the other hand if the applicant is a Tenant in Bhubaneswar then the Proper place for issuance of Marriage Certificate of Post Marriage Shall be SRO.

The Unmarried Applicants for Pre Marriage Registration shall apply for issuance of their marriage Certificate with Form -5 and whereas the Married Couples for the Issuance of their Marriage Certificate Shall apply for the same with Form-15.

The Documents those are required for Issuance Of Marriage Certificate are
1. Age Proof Document: PAN, Driving License, 10th Certificate , Adhar Card.
2. Identity Proof: PAN, Driving License, Adhar Card, Voter Id Card.
3. Address Proof: Recent Electricity Bill, Water Bill, Rent Agreement, Holding Tax Receipt, and others.
4. Affidavits By the Applicants Stating:
a. That, they do not have any living spouse other than the co-applicant alive at the time of application for registration.
b. That, they are not minor.
c. That, they are not blood relatives.
d. That, they provide consent in free will.
e. That, neither of them suffers from insanity.
5. Photographs of the Applicants , and for applicants applying for post marriage issuance of marriage certificate have to provide marriage ceremony photographs along with Xerox copy of the wedding card for invitation as was printed.

** Kindly Note only the marriage Certificates issued by the SRO or BMC is the form of valid marriage.

** Affidavits / or any Other Document Issued or Notarized is invalid and illegal. Notary Marriage is completely INVALID.

** Marriage Certificate issued by some NGOs, Agents or any other are invalid.

** Marriage Held as per Hindu Customs and Culture in a Temple or any other religious institution, in the presence of Witness and Couples having their Names Registered in the Book Of Records as well having Money Receipt from the Temple Administration can apply for Registration of Marriage Under Form 15 before the SRO with the required Documents.

** Issuance of Marriage Certificate is only after 30 days of receipt of Application for Registration with all the Required Documents.

RECOVERY OF MONEY

Recovery of Money is enforcement of a Legal Debt payable by the One Entity to another. There is a huge rise of people filing Criminal Cases under the section of Cheating or Fraud in anticipation that the debtor shall pay the money due in the fear of Police Action but this leads to a loss –loss scenario most of the times. Firstly that a Criminal Liability on the debtor shall not make the creditor entitle on his money that’s a punishment for his wrong doing. Secondly the evidence in hand shall be under the scrutiny of the Investigating Officer and well of course he has to make out a proper case to apprehend the person. Nevertheless a Criminal Offence should always be reported for the end of it else there will be multiple victims of such Cheaters and Fraudsters. The Indian Penal Code has specified a Punishment of Seven Years for the Crime Of Cheating.

Three Ingredients has to be Kept in Mind while Filing a Case Under the Section of Cheating that are: There should be an inducement by the Alleged Person for the Transaction, which takes away your free consent for the transaction. Secondly Under such influence there has been transfer of money, goods or putting all together any valuable. And finally there should be Wrongful Loss incurred due to such a transaction. The intension of the accused person has to be taken into account while considering the crime under cheating. It has to be specified that he had an ulterior motive all the time. Fraud is slightly different from Cheating; it has an additional feature of manipulation / fabrication/ creation of fake Documents.

MONEY SUIT.

But the Real Solution is not the person ends up in jail or comes out in bail or gets the punishment of imprisonment. It Is “Where is my MONEY? How Can I get it?”…. The solution is Money Suit. Definitely, if you have only oral agreements and nothing in written i.e. the loan given is a friendly and other thing that needs trail and evidence. Section 34 of the Civil Procedure Code Provides the Tool for Recovery of Money and for Sure if you have witness or even circumstantial evidence in your favor then you can also get the money back. However the Initial Procedure shall be establishment of the entitlement for the recovery and then under the decree from the Honorable Court you have to proceed with an execution suit for attachment of property or other valuable for the recovery of money if the defendant does not pay the due amount with or without interest.

However, the Most Powerful tool for recover of Money is The Order 37 of the Civil Procedure Code. The Summary Trail Suits. They are fast, based On Documents in hand and the best of all is the provision under which the Court Orders the Defendant to deposit the money in the Court as Security till the disposal of the Suit.

But, There are very less suit filed under this provision in Orissa. Mostly because suit under this provision being highly technical and complicated. In Bhubaneswar and Cuttack as the Cities are now growing in terms of Business Transactions more and more people are investing money , or there is transaction , delivery of goods , providing service and other forms of commercial transactions. The Legal Fraternity of Northern India however has done some fabulous submissions and the landmark judgments in such suits are worth reading. They really provide the confidence that its truth and justice that always wins the battle. The Hon’ble Judges have explained the provisions as well as have interpreted the terms in such a manner that the defaulters have no way to get scot-free of their liability.

It is an attempt to encourage the Advocates of Bhubaneswar and Cuttack and of course any other reader to file recovery of money under the provision of order 37 CPC.

Hereunder is a Brief Analysis of Order 37 Civil Procedure Code:

1. The amount due must arise from a written Contact, promissory note, negotiable instrument or others.
2. The debtor has been notified of the amount due and the due date of payment.
3. If the claim has been admitted or any part has been admitted.
4. The goods has been delivered and only part payment has been made or no payment.
5. The Transaction is commercial in nature.
6. 6. The Claim is only money with or without interest, no injunctions, no compensation or any other relief is not required. The cost of the suit can be claimed with the payment due.

i. File the suit with all the Documents in hand with the Heading on the Plaint:
Under Order XXXVII OF THE CODE OF CIVIL PROCEDURE 1908
ii. The Plaint must content a specific averment that:
NO RELIEF , WHICH DOES NOT FALL WITHIN THE AMBIT OF THIS RULE HAS BEEN CLAIMED IN THE PLAINT.
iii. The Summons should be in the format of Form 4 in Appendix B or any other form as prescribed by the Hon’Ble High Court. For Odisha, the Summon Format for Order 37 CPC shall be like:

Sch. XLI- High Court Form No. (P)4

To be filed by office
Date of depositing Talabana
Date of depositing diet money date of filing of process
Date of making over process to Najir

SUMMONS IN SUMMARY SUIT

To be filed by Nazarat
Date on which made over to process server
Date of Return by process server after service
Date of return by Najir court

DISTRICT

IN THE COURT OF THE CIVIL JUDGE, SENIOR DIVISON AT Bhubaneswar

SUIT NO. OF 2018

TO,

Whereas, ………………………………. Has instituted a suit against you under Order XXXVII of the Code Of Civil Procedure 1908, for Rupees …………………………………… and interest, you are hereby summoned to cause an appearance to be entered for you, within ten days from the service hereof , in default whereof the plaintiff will be entitled , after the expiration of the said period ten days , to obtain a decree for any sum not exceeding the sum of Rs…………………………………. And the sum of Rs…………………….for cost together with such interest, if any as the court may order.

If you cause an appearance to be entered for you …………………….the plaintiff will thereafter serve upon you a summons for judgment at the hearing of which you will be entitled to move to the court for leave to defend the suit.

Leave to defend may be obtained if you satisfy the court by Affidavit or otherwise that there is a defense to the suit on the merits or that is reasonable that you should be allowed to defend.

Given under my hand and the seal of the Court
this…………day of ……………………201

JUDGE

IV. The defendant shall not defend unless he enters an appreance personally or through a pleader and in default of his entering an appearance the allegations shall be deemed to be admitted and entitlement of the plaintiff for any sum not exceeding as mentioned in the summons, together with interest at the rate specified upto the date of decree and such sum for cost.
V. The defendant on appearance through pleader within 10 days of service of summons and shall file an address for service of Notice on him.
VI. All Notices that are required to be served on the defendant shall be deemed to be served if they are left at the address given by him.
VII. On the day of appearance, notice of appearance shall be given by the defendant to the pleader of the plaintiff.
VIII. The plaintiff shall serve on the defendant, summon for judgment in the Form 4A Supported by an Affidavit verifying the Cause of Action and the Amount Claimed and stating that in his belief there is no defense to the suit. The summon for judgment for Odisha Shall be

Sch. XLI- High Court Form

To be filed by office
Date of depositing Talabana
Date of depositing diet money date of filing of process
Date of making over process to Najir

SUMMONS FOR JUDGMENT IN A SUMMARY SUIT

To be filed by Nazarat
Date on which made over to process server
Date of Return by process server after service
Date of return by Najir court

DISTRICT

IN THE COURT OF THE CIVIL JUDGE, SENIOR DIVISON AT Bhubaneswar

SUIT NO.          OF 2018

PLAINTIFF

VS

DEFENDANT

Upon reading the Affidavit of the plaintiff the Court makes the following order namely:

Let all Parties Concerned attend the Court or Judge , as the case be, on the………………Day of ……………………..20 at,………………..o’clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant…………………………………………………………… for Rs……………………….. and for interest and costs. this…………day of ……………………201

JUDGE

IX. The defendant at any time within 10 days from the Service of such summons for judgment, by an affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend , apply for leave to defend and leave to defend may be may be granted conditionally or unconditionally. No leave to defend be granted unless there is substantial ground or the grounds are frivolous or vexatious.
On Hearing of such summons for judgment:

x. On Hearing of such summons for judgment:
a. If leave to defend is not applied or refused then the plaintiff shall be entitled for judgment.
b. If the defendant is permitted to defend as to the whole or any part of the claim they may be directed to give security within time period and non fulfillment of the Conditions for leave to defend if not complied with in the time period permitted then the plaintiff shall be entitled to judgment forthwith.

Southern Sales & Services and Ors Vs Sauermilch & Handels SMBH 2008 SCC.
Direct the Defendants to deposit amount due which had been admitted and payable even if defense was not sham. If any amount that has been admitted then the same has to be secured before leave to defend the suit can be granted.

GE Capital Services India Vs G. Neuromed Diagnostic Centre 2007 Delhi High Court
Section 47,48,49 of Contract Act Place of Performance and Jurisdiction of Court.

Book of Accounts are admissible. Mere General denial of the statement is not sufficient , the defendants has to raise specific pleas to the various entries which makes the account.

Gouri Prasad Goenka Vs Rabo India Finace Limited 2013 Mumbai High Court.
Place where final acceptance was given to the Contract. The debtor goes to the creditor for repayment thus the location of the creditor shall have the jurisdiction. Place of payments being made shall also be taken into consideration.

Rajni Kumar Vs Suresh Kumar Malhotra 2003 SCC.
Order 9 rule 13 CPC is not applicable for suits under order 37, For Setting aside exparte order , Rule 4 of Order 37 is applicable and only under special circumstance. The Original Suit was between House Owner and the tenant on the basis of Tenancy Agreement.

State Bank Of Saurashtra Vs M/S Ashit Shipping Services P…..2002 SCC.
The Principle for Leave to Defend in a suit under order 37. No leave to defend shall be granted if it would just prolong the litigation. Dispute to the meaning of a document or uncertainty as the amount actually due or not is a reason for cross examination and thus leave to defend should be granted. Leave to defend can be granted to any one of the defendant and not to all of the defendants. If they are jointly or severally liable.

M/S SPR Sales Pvt. Ltd Vs M/S Ojas Industries Pvt. Ltd. 2013 Delhi High Court.
Suit Based on unpaid Invoices are maintainable under order 37. Defense is raised after letter of payment was issued. Section 55 of the Contract Act, Defense of defect cannot be raised after the lapse of considerable time. Section 37 and 42 of Sales of Goods Act.

BOI Finance Ltd Vs Padma Alloy Casting Ltd AIR 1999 (Bombay)
Documents accepted and exchanged between the parties by themselves constitute as an agreement in writing.

Bharat Forge Ltd. Vs Onil Gulati AIR 2005
Contract for Sale need not provide all the description of sale , name of the seller, price of goods etc, all is required is the intent to sale.
Corporate Voice (P) Ltd. Vs Uniroll Leather India Ltd. 1995 Delhi High Court Order 37 Suit is maintainable on the records of Bills , invoices and Record Of Accounts.

M/S Flint Group India Pvt. Ltd Vs M/S Good Morning India Media 2017 Delhi High Court
Bills and Invoices are written Contract.

Beacon Electronics Vs M/S Sylvana & Laxman Ltd. 1998 Delhi High Court.
A Bald Denial without any evidence or supported by any document is not tenable in law and for that reason leave to defend cannot be granted.

+ Bill of exchange is a written Unconditional or conditional Contract between two or more parties. A Liquidated Demand in money is a fixed amount of money and does not include any Compensation or damages incurred.

Sicom Ltd. Vs Prashant S Tanna and Ors. 2004. Bombay High Court
Part Claim can be given up and the plaint can be amended to fall within the Ambit of the Order 37 CPC. Claim for interest can be given up or reduced and the plaint can be amended accordingly

Lohmann Rausher Gmbh Vs Medisphere Marketing Pvt. Ltd. 2005 Delhi High Court.
Defense of Substandard Material or defective Good does not entitle for nonpayment of the price of the goods that is barred by the provision of the sale of goods act. The Defendant can make a demand for damages but cannot hold any payment of the goods provider. The defense provided should be legal and based on evidence and should not be statutory barred. Buyer has the right and liability to examine the goods before purchase and delivery.

+Any oral Evidence in contrary to a written contract is barred by section 94 of Evidence Act.

+ Order 7 Rule 11 Petition is not maintainable in a suit under Order 37. Order 7 Rule 11 Petition is for Challenging the Cause of Action and not for the maintainability of the Suit. Order 37 is a Special Code in itself.

Refund of the Earnest Money or Advance Payment made through an Agreement for sale or through any other agreement does qualify under the Provision of Order 37 CPC. Unless and until there has been explicit declaration of the Forfeiture of the advance amount being paid as penalty the Party who has received the Advance amount and being in fault for the Breach of the Contract is bound to refund the received amount. The Provision has the mandatory condition that there has to be a written document in relation to the transaction between the parties and for this reason the suit is also invokes the provision of Contract Act, specifically Section 73, 74 and 75.