Signature of drawers not matching specimen signature, whether would amount to dishonor of Cheque ?

                                                  Image Sources: www.forensicdocument.com

The Hon’ble Supreme Court explained in 2012 (6) CTC 690 Laxmi Dyechem Vs State of Gujarat & Ors Any change in signature brought about with a view of prevent Cheque being honoured would amount to dishounour and would become an offence under provision – Change in Authorised Signatory of a Company, Firm, etc. would not automatically amount to dishonor of Cheque and become punishable, unless drawer despite notice and despite opportunity to make payment does not pay amount in time stipulated under Act – In instant case, offer made by defaulting Company to issue new Cheques upon settlement of accounts, held, a conditional offer and would not render illegal an otherwise lawful prosecution – Moreover, Cheques issued by authorized persons of Company would lead to presumption that Cheque were meant to discharger lawful debt or liability – In absence of any proof to rebut presumption that Cheques were issued for discharge of lawful debt or liability, Section 139 would not come to rescue of accused – Allegations of fraud, to be left to decision of Trial Court and not be investigated by Court under Section 482 of Code – Order of High Court quashing Criminal proceedings against Signatories of Cheques, set aside – Trial Court direct4ed to proceed with trial of Complaints – Appeal allowed. Negotiable Instruments Act, 1881 (26 of 1881), Section 139 – Presumption under provision – Prosecution can fail if Accused establishes probable defence sufficient enough to create doubt about existence of legally enforceable debt or liability – Said defence to be raised by relying upon materials submitted by Complainant or in some case accused may lead evidence on his own – Presumption can be discharged even at threshold where Magistrate examines case at stage of taking cognizance as to whether prima facie case has been made out against drawer of Cheque – However, if defence is not raised, presumption under provision not being rebutted, would operate with regard to materials submitted by Complainant. Negotiable Instruments Act, 1881 (26 of 1881), Sections 138 & 139 – Stop Payment cases – Harmonious construction of Sections 138 & 139 to be adopted in matters arising out of “Stop Payment’ – ‘Stop Payment’ instruction when given to Bank would constitute an offence under Section 138, however, subject to Section 139 – Where Stop Payment contingency arises for bona fide reasons, Section 138 would not apply as it applies in conjugation with Section 139 which envisages right of rebuttal before making out of offence – Stop Payment Cheques, thus, a category subject to rebuttal and would be an offence only if drawer of Cheque fails to discharge burden of rebuttal.( complied by Tamil Nadu State Judicial Academy)

When the BDA rejected for plan approval that the builder cannot escape from their liability to complete the project if the adjacent land has been approved for the same builder. 

                                                        

The Hon'ble National Commission has clinched the above title and interpreted that no builder can escape from their liability once they have acted upon by promising to perform the contract if the alternative remedy was available for the builder to complete their obligation within the purview of the law. 

The factual matrix of the case that the builder had been noticed by legal experts due to non-execution of Sale Deed on behalf of the several Villa buyers because of the land for the phase in which villas were allotted to the complainants was comprised in survey Nos.112/P and 89/P of Boganahalli village and the building plans for the said phase comprising 40 villas were rejected by Bangalore Development Authority vide letter dated 11-09-2006. A perusal of the aforesaid letter would show that the building plan for construction of residential complex on the aforesaid land were rejected solely on the ground that a major portion of the said land was reserved for the proposed road and a portion was reserved for residential purpose in RCDP – 1995

The complaints have been resisted by the opposite parties primarily on the ground that the allotment to the complainants was made subject to approval of the plans by the concerned authorities and the plans submitted by them to Bangalore Development Authority were not approved by the said authority, on the ground that in the Comprehensive Development Plan (RCDP-1995) substantial portion of the land on which villas in question were to be constructed was reserved for a road. It is further stated in the reply that as per the current master plan (revised master plan-2015) which came into force on 25-06-2007 the land in question is classified as industrial and residential use is permitted only as an ancillary use in the said hi-tech zone. According to the opposite parties, the contract between the parties was a contingent contract, performance of which has become impossible. It is further stated in the reply that way back in 2007 the complainants were informed that they could take refund of their money along with interest.

The learned counsel for the opposite parties, in support of his contention that the forum cannot direct execution of a contract which had become impossible to perform even if such a performance becomes possible at a later date referred to the decision of the Hon’ble Supreme Court in K. Narendra Vs. Riviera Apartments (P) Ltd., 1999 (5) SCC 77; 2001 (5) SCC (101), Her Highness Maharani Shantidevi P. Gaikwad Vs. Savjibhai Haribhai Patel & Ors. He also referred to the decisions of the Hon’ble Supreme Court in 1973 (2) SCC 746, Har Prasad Choubey Vs. Union of India & Anr. and 1969 1 SCR 65, Boothalinga Agencies Vs. V.T.C. Poriaswanmi Nadar. He also placed reliance upon the decision of Delhi High Court in AIR 1986 Del 158, Punj Sons Pvt. Ltd. Vs. Union of India. However, none of these judgments would apply considering that we are proceeding on the assumption that on account of the refusal of the Bangalore Development Authority to sanction the plans for construction of villas on the land comprised in survey No.89 and 112, the contract between the parties had become void in terms of Section 56 of the Contract Act and considering the stand taken by the opposite parties that no villa is available with them for providing to the complainants we do not propose to direct the opposite parties to either construct villas or to provide readymade villas to the complainants. But It transpired during the course of hearing that after denying the villas booked by the complainants to them, the opposite parties got approved building plans for construction of villas on the land adjoining the land comprised in survey No.112 & 89. Therefore, the BDA has only rejected to issue plan approval for comprised survey Nos.112/P and 89/P.

Even if we proceed on the assumption that on account of refusal of Bangalore Development Authority to sanction building plans on the entire land comprised in survey No.112 and 89, the contract between the parties to sell villas in question to the complainants had become impossible to perform, the complainants are entitled to compensation in terms of Section 56 of the Contract Act since in our view, the opposite parties knew or with reasonable diligence might have known but the complainants did not know that the villas in question could not have been constructed on the land comprised in survey No.112 and 89. Besides their right under the provisions of Contract Act the complainants are also entitled to suitable compensation under the provisions of Consumer Protection Act on account of deficiency/negligence in the services rendered to them by the opposite parties. The Forum confirmed that the builder has to pay compensation to the complainants as per the terms of the order.

Please see, for Complete Judgement Study,In Smt. Anuradha Maganthi & another Vs M/s. A Developers NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI CONSUMER COMPLAINT NO.99 OF 2007 and Judgement Pronounced on 28.11.2014