Sunday, 18 February 2024

The relevant date to compute the limitation u/s 468 and 469 of CrPC

                                              



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                        RESERVED ON    : 23.01.2024        DELIVERED ON :  24.01.2024

                                                                        COARAM:

                              THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

                              CRIMINAL ORIGINAL PETITION NOs. 433 and 543 OF 2024                                                                                          AND CRL.MP. NO. 372 OF 2024


CRL.OP.NO.433 OF 2024

A. KALIYAPERUMAL                                                .... PETITIONER

                      VERSUS

1. The Superintendent of Police                                                                                                                       Cuddalore,                                                                                                                                                   Cuddalore District.


2. The Inspector of Police                                                                                                                                 Ramnatham, Thittakudi                                                                                                                             Cuddalore District.                                                    .... RESPONDENT


(CR. NO. 24 OF 2019).


PRAYRER : Criminal Original Petition is filed under section 482 of the Code of Criminal Procedure to transfer to Investigation in Crime No. 24 of 2019 dated 14.02.2019 from the Respondent Police to any other Investigation Agent for further Investigation and to file the final report afresh.

Crl.OP.No.543 of 2024

1. Subhash                                                                                                                                                    2. Aakash                                                                                                                                                      3. Sharmila @ Chellem                                              .... Peitioners/ Accused 1 to 3

                Versus

1. State rep. by the Inspector of Police                                                                                                           Sulur Police Station Coimbatore District.         .... 1st Respondent/Complainant                                

PRAYER : Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure to call for the records in connection with the impugned FIR in Crime No.749 of 2015, on the file of the respondent and quash the same.                                                             

For Petitioners

in Crl.OP.No.433 of 2024 : Mr.R.Venkatesulu

in Crl.OP.No.543 of 2024 : Mr.M.Vijayaragavan


For Respondents:

in Crl.OP.Nos.433 & 543 of 2024: Mr.A.Damodaran

                            Additional Public Prosecutor for R1


Assistance from the Bar:

                            : Mr. M. Mohamed Riyaz

                            : Mr. S. Thiruvengadam



                                                             COMMON ORDER

An important issue was raised in these petitions and hence the issue is being dealt with in common in these criminal original petitions.


SHORT SUMMARY OF THE JUDGEMENT

The relevant date to compute the limitation u/s 468 and 469 of CrPC is is date of final report and not date of FIR: Madras High Court Justice Anand Venkatesh held the relevant date for calculating the period of limitation is the date on which the final report by the prosecuting agency is filed and not the date on which the FIR is registered. 


Detailed Summary of the Hon’ble Madras High Court Judgement dated 23.01.2024

The Madras High Court has recently held that the reckoning date for calculating the limitation period under Section 468 and 469 of CrPC would be from the date of filing of the final report and not the date of registration of FIR.


In First Case the court went on to the discussion while hearing a plea seeking to transfer an investigation on the ground that police had not taken steps to complete the investigation.


In another second casethe plea was for quashing the FIR as the final report had not been filed to date thus contending that there was a bar in taking cognizance.


During the hearing, the Additional Public Prosecutor informed the court that in the first case, the final report had been filed but since the final report was filed much beyond the period of limitation, the court had not taken cognizance of the same and issued notice to the accused.


Relying upon another decision of the Madras High Court in Kishore v. State, it was contended that there was no requirement for condoning since the complaint was lodged with the police within the period of limitation.


In the above case, the single judge had observed that the relevant date for Section 468 CrPC was the date of filing the complaint or the date of institution of prosecution. Justice Venkatesh, however, opined that the single judge had misunderstood information given to the police under Section 154 CrPC as a complaint under Section 9(d).


“The court observed that as per Section 154 CrPC, registration of FIR was based on “information” and the same could not be equated to a “complaint”.


“The court also noted that a complaint could be made only to the court and not to a police officer.”


During the discussion, the court also discussed the decision of the Apex Court in Sarah Mathew v Institute of Cardio Vascular Disease wherein the Apex court had held that the relevant date was the date of filing of the complaint. However, the court noted that Sarah Mathew arose from a complaint made to the magistrate under Section 190(1)(a) and was not based on a police report.


The court also looked into the Apex Court decision in Arun Vyas v Anita Vyas, where the court had held the cut-off date as the date on which the final report was filed and not the date of filing of the FIR. The court also noted that this decision was upheld by a three-judge bench in State of H.P. v. Tara Dutt and a two-judge bench in Ramesh v. State of T.N.

Thus, the court noted that the earlier decision of the single judge had wrongly relied on the decision of the Apex Court in Sarah Mathew which was based on a complaint and thus did not subscribe to the view taken therein.


In the first casethe court thus directed the Magistrate to grant the opportunity of hearing to the accused and dispose of the petition within six weeks.


In the second case, the court noted that though the crime was registered in 2015, no final report had been filed till date even though it should have been filed within 3 years. Thus, the court opined that keeping the FIR pending would not serve any purpose and thus quashed the FIR.

Sunday, 11 February 2024

IMPORTANCE OF POSSESSION / OCCUPATION AND COMMENCEMENT CERTIFICATE

 

MEANING AND IMPORTANCE OF POSSESSION / OCCUPATION AND COMMENCEMENT CERTIFICATE:


Do you own Flat in an Apartment or in high rise building? or have you booked a flat which is under construction? then you need to know the importance of documents like Completion Certificate (CC) and Occupancy Certificate (OC). Occupancy Certificate is also known as Possession Certificate (PC). 

As these certificates are not required while registering a property, most of the home buyers tend to overlook or ignore collecting this documents from their previous owners or builders of the apartment.

I can confidently say that there are thousands of apartments in cities like Bengaluru, Mumbai or Delhi which have been occupied without any Occupancy Certificates. In many of the cases, the building plans of these apartments are approved but they do not get OCs due to not sticking to the approved building plan or due to other violations. Obtaining Occupancy Certificate and Completion Certificate can be mandatory under respective State laws. As per this state laws, one cannot legally move into a building unless the developer gets an occupancy certificate from the respective local administrative or civic bodies. The corporation or municipality can ask the apartment owners to leave such illegally occupied flats or impose heavy penalties in the name of 'regularization'.

In this post let us understand- 

1.What is Building Completion Certificate..? 

2.What is Occupancy Certificate or Possession Certificate? 

3.What is the difference between Occupancy Certificate and Completion Certificate? 

4.What is the importance of these documents? How to get Occupancy Certificate?       


1. WHAT IS BUILDING COMPLETION CERTIFICATE (BCC)?

Upon completion of the building construction, the builder or the developer of the apartment/building/society has to apply for the 'building completion certificate' with the local authorities. (Like PMC Pune, PCMC in Pimpri Chinchwad, BMC in Mumbai etc).

If the building construction is completed as per the building approval plan and if it also meets other building standards like distance from road, height of the building, if rain water harvesting is in place etc., the civic authority will issue CC.


 2. WHAT IS OCCUPANCY CERTIFICATE OR POSSESSION CERTIFICATE?

Once the builder receives the Completion Certificate, they have to obtain Occupation Certificate from the civic bodies.

OC certifies that the building has complied with all the required building standrads, local laws and it is safe to occupy. Occupancy Certificate is issued by local municipal authorities or building proposal department that provides no objection to occupy the building under reference for its specified use. The OC is issued only once the building has been completed in all respects and can be occupied. 

The legal possession of the flat by the owner is valid only with the Occupancy Certificate.

So, the main difference between Completion Certificate and Occupancy Certificate is that CC shows that the building construction is done as per the the plan which was approved by the concerned authorities. And after getting this, Occupancy Certificate will be given to all buyers so that they can take possession of their flats/ properties. 

Important Points on Completion Certificate and Occupancy Certificate:-      



1. Who can apply for Building Completion Certificate or CC ? :- 

Answer:- Builder has to apply for CC

2. Who will issue BCC or CC ? :


Answer:-  Local Civic bodies will issue BCC.

3. Who can apply for OC ? :- 


Answer:- 
The builder has to obtain OC. However, the flat owner can also apply for OC. If you have already occupied your flat without OC, you can approach the Local Corporation or municipality and apply for OC. If the building has been constructed as per the approved plans, building standrads, fire safety standards and if it also has BCC then you can get OC in 30 days (by rule). However, the law says that if the building has been constructed without any plans then it can not be regularize. (If there are structural deviations) and OC may not be issued in such cases.    

4. How to get Occupancy Certificate or Possession Certificate ? :-




Answer:- 
If you want to apply for Occupancy Certificate then in such a case you may have to submit following documents along with the application forms :-

  • Copy of building Sanction Plan (building plan approval copy)
  • Building Commencement Certificate
  • Copy of Building Completion Certificate
  • Latest Property Tax Receipt
  • Copies of no objection certificate (NOC's) of pollution board or airport authority etc.
5. Who will issue OC ? :-

Answer:- 
Local civic bodies will issue OC but if that buildings which have deviations beyond legally allowed limits can be treated as illegal constructions. The local civic bodies may not issue occupation certificate in these cases.

6. Why CC or OC are important ? Is it safe to buy a flat without OC/CC?:-

  • To claim income Tax benefits on your home loan, your employer may ask you to submit the occupancy certificate along with the home loan statement.
  • Occupying a property without an OC is considered as illegal and local civic bodies can ask you to vacate the property.
  • You may have to face trouble in getting water connection or sanitary connection or electricity supply connection. 
  • Most of the financial institutions may insist on Possession Certificate to sanction home loans.
  • You may find it very difficult to find a buyer in case if you wish to sell your Flat in the future.
  • Without an OC, it may be very difficult to obtain Khata Certificate.
  • If your builder is not obtaining OC, you can issue notice to them to apply and handover the required documents. Failing which, you can also approach a consumer forum or can file a writ petition.
  • Do note that obtaining Occupancy Certificate for an independent house (row house) is not mandatory.
  • A builder can get a provisional building completion certificate from local authorities. but do note that this is valid for six months only. He has to obtain final building completion certificate.
Most of the errant builders may have good connections and they may easily escape through various loop holes in the law. So, end of the day it's the home buyers who end up suffering for no fault of theirs. 

Be extra cautious when you are buying new flats (even if the builders are reputed ones). Check out the building commencement certificate. Also, do insist on obtaining Completion Certificate and occupancy certificate (Possession Certificate) from your builder or owner. If these documents are not available with the seller or builder then there is every possibility that the building may not be constructed as per the approved plan or local building standards. 




If you are new flat owner, insist on an Occupancy Certificate from your builder before you occupy the property. If you have already occupied the property, get your OC at the earliest. you may check with other flat owners and can apply for OC as a group or through your Residents Welfare Association.

I believe that the Occupancy Certificate should be made mandatory for the registration of Flats. It can also be made mandatory for getting water, sanitary and electrical connections. This can make a huge difference of buyers of Flats. All that is needed is Political Will.  

I hope you find this post informative. Kindly share your views on this topic.

CONCEPT AND IMPORTANCE OF PANCHANAMA


"CONCEPT AND IMPORTANCE OF PANCHANAMA"



Usually, every person had heard about this word "Panchanama", most of the times we have seen this in Bollywood as well as in Marathi Movies, also in Daily Soaps i.e. crime scene, investigating officer, photographer, dog squad, forensic peoples, witnesses, etc. 

But is it in reality...? 

Does there is any PANCHANAMA in real life exist/ carried out by police administration/ authority ? 

Whether it is admissible proof of document ?  

Does it carry any importance to conclude the case...? 


All these above unanswered questions will be answered herein below:

PANCHANAMA:-


It is true that the word Panchanama is not defined anywhere in law. The judges, lawyers including me often take a search for this word in legal books. Common person who is suffering under court trial, accused, victims and witnesses their family members, lawyers, judges are known and somehow aware for this word as it has significance value in court of law, which is used and preferred by not only criminal courts but also civil courts in day to day cases. 

How...?
You will come to know.. while reading this article...

The Courts relying on this document to check veracity and truthfulness of the action taken by the officers of state or officers of court. In criminal case it is used to support the substantive evidence and in civil cases it is used to show that the decree of the civil court has been executed by handing over possession as directed in the decree. 

Question No. 1

What is mean by Panchanama? or Interpretation of word Panchanama?





Answer:-

The word Panchanama consists of two words, panch and nama. In Sanskrit the word "Panch" means a "respectable person." and "Nama" means a written document.


Question No. 2

What is the importance of Panchanama..?




Answer:-

In criminal cases this panchanama has very important value. The panchanama accounts state two things which were found at particular place at particular time. In criminal law the panchanama has corroborative value. The Code of Criminal Law Procedure 1973, also does not define panchanama anywhere. But the same is incorporated in the section 100 of the code. This section 100 can be found in chapter VII which titles Process To Compel The Production Of Things. In this chapter the power to carryout search of particular places is given to officers as laid down in sections 93, 95, 97 and 98 of the code. The provision of panchanama is made to convince court that officer have in fact carried out such search or made such seizure. 


Question No. 3

What are the contents of Panchanama...? 

Answer:-   

The procedure for preparing panchanama is not stated in any act. But a guidelines can be taken from section 100 subsection 4 and subsection 5 of the Code of Criminal Procedure, 1973. It is to be also noted that the panchas are to be two or more independent and respectable persons. In the case where there is no eye witness to the offence and the case is totally based on circumstantial evidence then such panchanama carries immense value. The panch witness can also refresh his memories during the court of giving evidence as per section 159 of the Indian Evidence Act, 1872.

In Panchanama the following things can be said to be important to be incorporated.

  • Name and Place of Police Station.       
  • Name and rank of officer commencing panchanama,
  • Name, age and address of panchas,
  • Details of particular place or persons.
  • Details list of articles found in that place or from the person which are incriminating,
  • Record of time when it was commenced and when it ended.
  • Signatures of that officer and both of panchas.
It is also important that after preparation of panchanama the panchas  should read its contents. If the panch is illiterate then such panchanama should be read over to him and there should be endorsement that the contents of the panchanama were read over to them. In case where at time of making panchanama there was no source of light then it should be mentioned as to how the source of light was managed to prepare panchanama.

Question No. 4

WHAT ARE THE KINDS OF PANCHANAMA...? 

Answer:

There are many kinds of panchanamas, following are the panchanamas which are found normally in about every criminal cases. There can also be Panchanama other than the following list. 

1. SPOT PANCHANAMA:



This panchanama is generally drawn by Investigating Officer when he visits the informant or the person who has knowledge about place of crime. When such informant or such person shows the Investigating officer place of crime then in presence of two panchas the Investigating Officer draws spot panchanama. In this panchanama there are details of what where the position of scene of crime after the crime. 

For example 

If there is allegation of theft then generally in such panchanama it is found that the articles on the place of crime were scattered and cupboard or safe was broke open. So also in accident cases the tyre markes are often mentioned in this panchanama which shows that accused was driving his vehicle in speed or he tried to avoid accident. This panchanama corroborates the fact that incident had taken place. 

2. MEMORANDUM PANCHANAMA:

Generally any statement before police by accused while he is in police custody, cannot be taken on record and has no meaning in eyes of law. As per section 25 and 26 of the Indian Evidence Act, 1872 such statement has no value. But the exception to this section are made in the section 27 of the Indian Evidence Act, 1872 which states that if in consequence of the information received by accused there is discovery then such fact could be proved in court. The statement made by accused in police custody is recorded before panchas and panchanama is drawn. Such Panchanama is called memorandum panchanama. If there is statement made by accused in police custody admitting the guilt and and further giving information about such things of which he only has knowledge and such things is found in that particular place then such discovery is relevant. 

For example 

In Murder case the accused in police custody can reveal as to where he had hidden the weapon of offence and in consequences of such information that weapon is found in that particular place, then such fact can be proved in court even if the statement is given in police custody. In memorandum panchanama it is always stated that accused admits the guilt and reveals the information about the articles. Though such incriminating statement is there in memorandum panchanama and punch witness makes such statement of accused before court but that has to be excluded from evidence.

3. SEIZURE PANCHANAMA:-

Whenever the investing officer founds any articles which he think that are necessary for proper investigation then such officers seized those articles from that place or person. While making such seizure he draws panchanama which is often called seizure panchanama. In one case there could be more than one seizure panchanama. The Seizure of article can be form informant, accused or any third person, depending upon the facts and circumstances of the case.

4. INQUEST PANCHANAMA:-




When any person dies due to the result of crime or under suspicious circumstances then the investigating officer has to draw inquest panchanama as per section 174 of criminal procedure code, 1973. In this panchanama the details of how the dead body is lying and descriptions such as of any mark of injuries found on a person of deceased, apparent cause of death or by what weapon, instrument such mark appear to have been inflicted are to be mentioned. 





This Panchanama helps to find out whether at the first sight of dead body it can be gather that cause of death is unnatural. After this cause of death and detailed description over body is mention in the Inquest Panchanama it is signed by the investing police officer and by the witnesses. If no foul play is suspected , the dead body is handed over to relatives for burial. In cases of suspected foul play or doubt the body is sent for postmortem examination to the nearest authorized government doctor or hospital, together with a requisition and copy of inquest. The report is also forwarded to the magistrate.

5. ARREST PANCHANAMA:-

Whenever the police officer carry out arrest of any person then such panchanama  is drawn. In this panchanama the physical appearance, identification marks and articles found on arrested person is mentioned. 

6. OTHER PANCHANAMA:-

The Panchanama can also be found in the case of Prevention of Food Adulteration Act and cases under Essential Commodities Act. In Prevention of Food Adulteration Act for safety and to give authenticity to their actions, the Food Inspectors prepared panchanama in presences of two panchas of all the action taken by them. This has two advantages, first it corroborates the fact that on the particular day such visit infact made by Food Inspector in that particular place and other is that it shows, the food inspector had followed proper procedure as prescribed in the Prevention Of Food Adulteration Rules. One can also found importance of Panchanama in Forest Offences. In Offences under Forest Act the Confession made by accused before Forest Officer is not hit by Section 25 of Indian Evidence Act. Such Confession stands in court of Law. Forest Officer records such confession before two panchas. This gives more reliability to such confession. Panchanamas are also done of test identification of accused or for identifying property involved in crime. Specimen handwriting's, Specimen signatures, sample of blood are also taken in presence of panchas by drawing panchnamas. In anti-corruption cases pre-trap panchanama and post- trap panchanama are common. In accident cases the panchanama about the condition of vehicles involved, its travel route, driver and conductor details, signal rules, injury, damage to vehicle etc. details are given special importance.                  

EVIDENTRY VALUE OF PANCHANAMA:-


The Panchanama is merely a record of what a panch sees and the only use of which it can properly be put is that when the panch goes into the witness box and swears as to what he saw, the panchanama can be used as a contemporary record to refresh his memory.               

The primary intention behind the panchanama is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search with or without warrant and also to ensure that anything incriminating which may be said to have been found in the premises search was really found there and was not introduced or planted by the officers of the search party. The legislative intent was to control and to check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of place and seizure of article. The Panchanama can be used as a corroborative piece of evidence. In absence of any substantive piece of evidence only relying upon panchanama on record there can not be conviction. 

IMPORTANT CASE LAWS:-

1. In case of Vishnu Krishna Belurkar versus The State of Maharashtra, (1974) 76BOMLR627, the question whether the panchanama are hit by the provisions of section 162 of the Code of Criminal Procedure, 1973. The question was referred to Hon'ble Full Bench of High Court of Bombay. In para 8, the Hon'ble Full Bench has observed that


           " In our view, the fact that panchanama is written out by the police officer or the police scribe as dictated to him by the panchas would not make any difference, for that would merely be a made in which the panchanama id recorded. Of course, if a panchanama does incoporate a statement which amounts to a statement intended as a narration to a police officer during his investigation, it would fall withhin Section 162 and will have to be excluded but that is the duty which the court must perform every time a panchanama, is tendered in evidence."

2. In case of Yakub Abdul Razak Memon Versus State of Maharashtra ,  decided by the Hon'ble Supreme Court of 21st March 2013, one of the ground challenging conviction was that the recoveries which were made was not made in proper procedure and seizure panchanama were not in accordance with the procedure as laid down in Section 27 of Indian Evidence Act, 1872. The Hon'ble Supreme Court in para 218 have observed that,

           "Panchanama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence / crime. However, it is not only the recordings of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is likely to be collected. The document so prepared needs to be signed by the investigating officer who prepares the same and at least  by two independent and impartial witnesses called "Panchas" as also by the concerned party. The witnesses are required to be not only impartial but also 'respectable'. Respectable would mean a person who is not dis-reputed. One should also check if the witnesses are in their sense at the time of panchanama proceedings. Only majors are to be taken as a witnesses as minors witness may not withstand  the legal scrutiny."


Further in para 224 the Hon'ble Supreme Court observed that

         " on any deviation from the procedure, the entire panchanama cannot be discarded and the proceedings are not vitiated. If any deviation from the procedure  occurs due to a practical impossibility then that should be recorded by the I.O. in his file so as to enable him to answer during the time of his examination as a witness in the court of law. Where there is a no availability of witness, the I.O. will conduct a search and seize the articles without panchas and draw a report of the entire such proceedings which is called a "Special Report". 

From the above two authorities it can be seen that the Hon'ble Court of Bombay and the Hon'ble Supreme Court had given in from of observations guidelines as to how the panchanamas should be and who should act as panchas.



Conclusion:-

So I can conclude this is very informative article and based on two important authorities as below:


  • "PANCHANAMA" is a documentary evidence its contents can be brought on record by Primary Evidence.
  • It's probative value can be inquired in the court of law by testimony of concern witnesses or Investigation Officer, who has investigated the case or proceed over the inquiry.
  • It can also be use to refresh the memory during the proceedings.
  • Duly proved 'Panchanama' establish genuineness of Investigation or Inquiry Procedure.
  • Genuine PANCHANAMA are strong corroborative evidence to prove prosecution case. 

This is for information and for Knowledge:


www.advocatejjlegalawareness.blogspot.in

ACKNOWLEDGEMENT OF DEBT LAW OF LIMITATION ACT 1963 U/s 18

                        

                             JUDGEMENT  LAW OF LIMITATION ACT 1963 U/s 18 

                                                                          BY 

                                     HON'BLE NATIONAL COMPANY LAW TRIBUNAL

                                                    PRINCIPAL BENCH NEW DELHI

                                   COMPANY APPEAL (AT) (INSOLVENCY) No. 846 of 2022

(Arising our of order dated 06.06.2022 passed by Adjudicating Authority, National Company Law Tribunal, New Delhi, Bench, Court-II in CP (IB) No. 345/ND/2020)

IN THE MATTER OF :-

M/s G L Shoes (Operational Creditor), Agra U.P  - Appellant 

Versus

M/s Action Udyog Private Limited (Corporate Debtor), New Delhi - Respondent


Present :-

For Appellant :  Mr. Nitin Kaushik, Mr. Mayank Kshirsagar, Ms. Abha Goel, Advocates

For Respondent : Ms. Varsha Banerjee, Mr. Udit Singh, Mr. Kaushik Khaitan, Advocates.


NCLAT Held That :-

Normally Section 18 of Limitation Act, 1963 states that an acknowledgement is clear and should be in writing signed by the party against whom the right is claimed or the party who has acknowledged its Debt should specify it clear in writing under Section 18 of Limitation Act, 1963.


Here under this Landmark Judgement dated May 24, 2023 under Company Appeal (AT) (Insolvency) No. 846 of 2022 NCLAT held that :-

                 "Irrespective of the Acknowledgement whether it is electronic or in physical form                                   i.e. "sign" or "signed" merely because a document sent via email, the mandatory                                 requirement of section 18 can not be exempted."

 It Means

                   Just like an unsigned document sent via physical post cannot be construed                                            a valid acknowledgement of debt in terms of section 18 of the Limitation                                                Act, 1963, the same way in todays technologically advance word, the necessary                                     the necessary condition of signing/authenticating a document sent/received as an                                  attachment with an e-mail cannot be dispensed with for treating it as valid                                            acknowledgement in terms of Section 18 of the Limitation Act, 1963.



Short Briefs/ Background of the Case

The Present appeal is filed u/s 61 of the IBC Code 2016 by the Appellant arises out of the Order dated 06.06.2022 (Impugned Order) passed by the Adjudicating Authority (NCLT-II-New Delhi) in CP (IB) No. 345 (NB)/ 2020. 

By this Impugned Order the Adjudicating Authority has dismissed the Section 9 Application filed by Operational Creditor- M/s G.L. Shoes (the present Appellant) seeking initiation of Corporate insolvency Resolution Process (CIRP) against Corporate Debtor - Action Udyog Private Limited (the present Respondent) . Aggrieved by this Impugned Order, the present appeal has been preferred by the Operational Creditor.

Making his submissions the Ld. Counsel for Appellant submitted that the Operational Creditor (i.e. M/s G.L. Shoes) used to supply footwear and related products to the Corporate Debtor/ Respondent on the basis of purchase Orders received from them. It was also submitted that the invoices stipulated payment to be made 75 days from the date of Invoice. Goods were supplied between April - June 2016 and payment fell due on 08.07.2016.

The date of default on the part of the Corporate Debtor as submitted by the Appellant is 08.07.2016. The Operational Creditor issued Demand Notice to the Corporate Debtor on 02.07.2019 demanding payment of Rs. 22.26 Lakhs as unpaid Operational Debt including interest @18% per annum. 

However, the Corporate Debtor did not issue any Notice of dispute. The Operational Creditor thereafter filed Section 9 application before the Adjudicating Authority.

The Ld. Counsel for the Appellant contended that the Section 9 application was erroneously dismissed by the Adjudicating Authority on grounds of having been barred by limitation. It was submitted that the impugned order took note of date of default to be 08.07.2016 as mentioned in Part-IV of the Demand Notice and held that the Section 9 application having been filed on 22.01.2020 which was well after three years from the aforementioned date of default, the same was barred by law of limitation.

It was vehemently contended that the Corporate Debtor had clearly acknowledged the debt in their email dated 05.05.2017 which therefore extended the period of limitation. 

The Ld. Counsel for the Appellant stated that the Adjudicating Authority has erred in holding the acknowledgement of Debt by email cannot be accepted on the ground that statement of account contained in an external file attachment to the main body of the email and that it was not duly authenticated  by the signature of the authorized person and did not bear the company seal. 

Dilating on the issue of limitation, it was submitted that the Hon'ble Karnataka High Court in the matter of Sudarshan Cargo Pvt. Ltd. Vs. M/s Techvac Engineering Pvt. Ltd. 2013 SCC Online Kar 5063 ( 'Sudarshan in Short) has held that an email acknowledging the debt constitutes a valid and legal acknowledgement of the Debt, despite the fact that it is not a strictly "signed" documents for the purposes of Section 18 of Limitation Act, 1908.

The email, being a legally recognized form of communication under the provisions of Information Technology Act, 2000 (IT Act in Short) it is valid Acknowledgement under Limitation Act, 1908.

Refuting the submissions made on behalf of the Appellant, it has been strongly contended by the Learned Counsel for the Respondent that the claim of the operational debt is clearly time-barred. It has been contended that the date of default mentioned by the Appellant in Part IV of the application is 08.07.2016 whereas the Section 9 application was filed before the Adjudicating Authority on 22.01.2020. Hence, the application having been filed after three years from the date of default, it was clearly barred by limitation and hence not maintainable.    

As regards, the plea taken by the Appellant that the application was not hit by limitation since there was an email dated 05.05.2017 from the Corporate Debtor acknowledging the debt, it was argued that the said email cannot be relied upon to extend the limitation since it was difficult to ascertain beyond doubt to which date the statement of account attached therein belonged to. Buttressing their argument, it was pointed out that the said email was neither signed by the Corporate Debtor nor sent by any authorized person on behalf of the Corporate Debtor. More importantly, the statement of account attached to the email acknowledging the debt was unsigned and did not carry the stamp and seal of the Corporate Debtor. Hence, in the absence of any date and proper authentication thereof, the authenticity of the external file attachment containing an aged account statement of the Corporate Debtor cannot be ascertained beyond doubt. It was, therefore, argued that the Adjudicating Authority had rightly held that the Company Petition filed before it was barred by limitation.

Contentions of Appellant :-

- It is the case of the Appellant that the email of 05.05.2017 from the office of the Corporate Debtor had acknowledged the operational debt. This email was an official communication since the email address saurabhsingh@actionshoes.com was generally used by the Corporate Debtor for corresponding with the Appellant. The said email acknowledged the liability and this mail having been issued before expiry of the limitation period of three years it had extended the limitation period. The Section 9 application was therefore well within limitation period.

-  The Section 18 of the Limitation Act does not provide that the acknowledgment has to be in any particular format and hence the email of 05.05.2017 and the file attachment which had been transmitted electronically must be construed as meeting the requirement of Section 18 of the Limitation Act.

Counter Arguments by Respondent

- The counter argument advanced by the Learned Counsel for the Respondent that the issue in question is not whether the communication sent out electronically is legally valid or not but whether an unsigned document sent electronically is admissible and constitutes a valid acknowledgment for the purpose of extending the period of limitation in terms of Section 18 of the Limitation Act.

- It has also been submitted that the Hon'ble Rajasthan High Court in M/s. Babulal Rukmanand vs. The Official Liquidator, Bharatpur Oil Mills (Pvt.) Ltd. 1967 SCC On Line Raj 20 held that unsigned books of accounts/statement of accounts do not constitute a valid acknowledgment under Section 18 of the Limitation Act, 1963. Therefore, any reliance placed on the said email of 05.05.2017 and statement of accounts attached therewith, is non-est in law since the alleged statement is unsigned and not authenticated by the Authorized Representative of the Corporate Debtor.


Hon'ble NCLAT observed and held as follows :-

- Hon'ble NCLAT noticed that the Corporate Debtor in their reply dated 09.03.2020 to the Section 9 application filed by the Appellant had raised several objections, inter-alia, non-maintainability arising out of the bar created by the Indian Partnership Act, 1932; invalidity of demand notice being in Form III and for not containing date of default; non-receipt of demand notice and non-service with the Information Utility; defective issue of demand notice; etc.

- Hon'ble NCLAT notice that the Adjudicating Authority in the impugned order has dealt with the above contentions raised by the Corporate Debtor in the context of maintainability of Section 9 application and not being convinced had set aside these grounds.

- However, on the issue of limitation,  Hon'ble NCLAT held that the Section 9 application has not been filed within three Company Appeal (AT)(Insolvency) No. 846 of 2022 5 years from date of default and in the absence of sufficient material on record to establish extension of limitation period, Section 9 application was dismissed.

- Analyzing the facts of the present case, Hon'ble NCLAT find that the Corporate Debtor had asked the Appellant/Operational Creditor on 23.03.2017 to send their ledger account to one of the officers of the Corporate Debtor as seen at page 228 of Appeal Book. The Appellant responded by sending a reply email on the same date along with an attachment containing statement of accounts as seen at page 230 of Appeal Book. This email was responded to by the Corporate Debtor on 05.05.2017 with the remarks ‘FYI’ as seen at page 231 of Appeal Book. This email has been held by the Appellant as an acknowledgment of debt on the part of the Corporate Debtor.

- That from perusal of the email and attachment annexed therewith dated 05.05.2017, it is observed that the main body of the e-mail does not contain any statement regarding acknowledgement of the debt by the corporate debtor and the attachment relating to Accounts attached therewith is neither signed by any authorized person nor bears the Company Seal. Further, we notice that the Applicant, for the acknowledgement of debt, has referred to and relied on the attachment containing Accounts statement of the Corporate Debtor, which as we have observed, is not duly authenticated.

- Hon'ble NCLAT further stated that if acknowledgement of debt is made basing on the contents of an attachment, which is an external file exported/attached with the mail and if that attachment is not duly authenticated by signature of the authorized person and date or/and Company Seal, it is not possible to ascertain beyond doubt to which date the document is generated or belongs to.

Just like an unsigned document sent via physical post cannot be construed a valid acknowledgement of debt in terms of section 18 of the Limitation Act, 1963, the same way in todays technologically advance word, the necessary the necessary condition of signing/authenticating a document sent/received as an attachment with an e-mail cannot be dispensed with for treating it as valid acknowledgement in terms of Section 18 of the Limitation Act, 1963. Hence, the attachment containing accounts statement annexed with the e-mail dated 05.05.2017 without any signature and date or/and Company Seal cannot be held authenticated or valid in terms of Section 18 of Limitation Act for extending the period of Limitation.”


Hon'ble NCLAT held that :-

In view of the foregoing discussions, we do not find merit in the submissions raised by the Learned Counsel for the Appellant to warrant any interference in the impugned order. We are of the view that the Adjudicating Authority did not commit any error in rejecting the Section 9 application filed by the Appellant on grounds of having been barred by limitation. There is no merit in the appeal. Appeal is dismissed. No order as to costs.


[Justice Ashok Bhushan]                                                                                                   NEW DELHI

Chairperson                                                                                                                         24.05.2023

[Barun Mitra] 

Member (Technical)

Sunday, 15 May 2022

How to obtain a Legal Heir Certificate?




Procedure to get legal heir certificate is easy and does not involve any cumbersome or complicated legal process. A legal heir can talk to the Top Family Lawyers to obtain a legal heirship certificate from court and other revenue officers such as tahsildars, revenue mandal officers or talukdars, in every taluk. Legal heir certificate from panchayat can also be obtained. The legal heir in India or the legitimate heir of deceased person must approach the correct government authority with death certificate of the deceased.

The officer hands over a form which must be correctly and completely filled. The person making such application must carry the requisite documents and stamp fees must be paid. If the person belongs to SC/ST category then he does not require to pay this stamp fee.  The form must be submitted by Family Lawyers with the officer, after which an enquiry takes place. The inspection is conducted by the Revenue Inspector as well as Village Administrative Officer. Once the enquiry is successfully completed, the legal heirship certificate is issued.

The whole procedure for legal heirship certificate can take upto 15 to 30 days. If the certificate of legal heir is not issued within a reasonable period of time, the legal heir can approach the tahsildar with help of Famous Family Lawyers and if he gets no response, he can contact the concerned RDO or sub-collector.



Which Documents are required to obtain a Legal Heir Certificate?

To get a legal heir certificate in India, the following documents are required:

1. Self-undertaking i.e. an Affidavit drafted and notarised.  

2. Letter from the Govt. Department of deceased employee to obtain legal heir certificate from DC office. 

3. Identity Proof of Applicant (Election Commission Photo ID card, Aadhaar Card or E-Aadhaar letter issued by government of India, Driving License, Passport, Arm’s License with photograph, etc.).

4. Residence proof of all legal heirs (passport, telephone (BSNL landline or postpaid mobile bill) with the name of legal heir, Election Commission Photo ID card, Applicant's current and valid ration card, Aadhaar Card or E-Aadhaar letter issued by government of India, etc.).

5. Date of birth proof of all legal heirs (Birth certificate issued by a Municipal Authority or any office authorized to issue Birth and Death Certificate by the Registrar of Births & Deaths, School leaving certificate / Secondary School leaving certificate/ Certificate of Recognized Boards from the school last attended by the applicant or any other recognized educational institution, Passport, Pan Card, etc.).

6. Death certificate of deceased employee in original.  

7. Death certificate of deceased direct legal heir in original (if required).

8. Residence certificate of the deceased.

These laws are called "laws of intestate succession." When a person dies intestate, or without a will, the laws of the state where he resided determine how his estate is distributed. According to these laws, specific family members, or heirs, have a right to inherit a share of the decedent's property.

What is a legal heir certificate?

Difference between succession and legal heirship certificate Legal Heir Certificate is issued from revenue office of the district to identify a particular deceased person living heirs. A succession certificate is issued by a civil court to the legal heirs of a deceased person.

Is Husband legal heir of wife?

After death of wife husband is the only heir if he alive. your daughter and son in law have no right in the property. ... Now upon your wife'sintestate death, the property shall devolve equally on all the legal heirs of your deceased wife namely all her children and yourself.


Who are the legal heirs of a person?

These laws are called "laws of intestate succession." When a person dies intestate, or without a will, the laws of the state where he resided determine how his estate is distributed. According to these laws, specific family members, or heirs, have a right to inherit a share of the decedent's property.