CPC_Review

Review

1. Section One Hundred and Fourteen [114] of Code of Civil Procedure 1908 provides for Review of the Judgement.
2. The Supreme Court of India can review its own orders and judgment under Article 137 of the Indian Constitution. 
3. The meaning of the term Review is to reconsider, to look again or to re-examine. 
4. In legal terminology, it is nothing but a judicial re-examination of the decision of the case by the same court. 
5. The Application for Review of judgment may be made on following points – 
• Finding of a New Evidence
• The detection of new evidence can be the ground for the filing of an Application for review of Judgement. 
• Whenever, the party discovered a new fact or important matter evidence after exercise of due diligence, was not within his knowledge during the matter was heard or at the time when the judgement was passed, application of review is permissible.
• Mistake or apparent error
• The Application for review can be filed on the ground of a mistake or error apparent from the record. The error can be of fact or of law. 
• Example - Pronouncement of Judgment without taking into consideration the fact that the law was amended with retrospective effect.
• Any Other Reasonable or Sufficient ground 
• The Application for review may be made on any other sufficient ground. However, it has not been elaborated in the code. 
• The ground for review must be a bonafide ground.
6.  It may be noted that, a Review of a Review cannot be permitted under the Civil Procedure Code 

Company Law_Doctrine of Constructive Notice

Doctrine of Constructive Notice

1. The Memorandum of Association (MOA) and Articles of Association (AOA) are Public documents and are easily available for inspection of public at the office of Registrar of Companies.
2. Under the doctrine of constructive notice, it is presumed that, the person dealing with a company has read these documents even if he failed to read the same.
3. In short, every person dealing with a Company is deemed to have “constructive notice” of contents of the company’s MOA & AOA
4. In case of Kotla Venkataswamy V/s Rammurthy (AIR 1934; Mad 579), the Hon’ble. Court had observed this doctrine of constructive notice.
• The Article of Association of a company laid down that all documents executed by a company required the signature of the managing director, the secretary and one working director.
• A deed of mortgage signed on behalf of the company in favour of the Plaintiff. However, the same had been signed by the secretary and one working director. 
• The dispute occurred between the parties in respect of validity of the deed of mortgage. 
• The Madras High Court held that the Plaintiff accepted a deed of mortgage executed by the secretary and a working director only. Now, the Plaintiff could not claim under this mortgaged deed as it was not duly executed as per the Articles of the company. She would have abstained from accepting a deed inadequately signed. 
5. It is a duty of every person dealing with a company to read the relevant provisions of these documents
6. The doctrine of constructive notice applies not only to MOA and AOA but also to all such documents which are required to be registered with Registrar of Companies.
7. The Section 399 of the Companies Act, 2013, provides that, when the MOA and AOA  registered with the Registrar of Companies, it become the Public Documents. These documents can be available to anyone on payment of fees.
8. Doctrine of constructive notice has sometimes resulted hardship and injustice to third parties because it does not take into account the realities of business life.
9. This doctrine looks unrealistic and imaginary and is a fiction created by the judicial pronouncement of the Courts.
10. This doctrine is an exception to the Constructive Notice Doctrine.

Transfer of Property Act_Doctrine of Election

Doctrine of Election 

1. Section 35 of the Transfer of Property Act, 1882 lays down the Doctrine of Election.
2. The meaning of term Election is to select  between two alternative rights or inconsistent rights. 
3. The Section 35 provides that, when a person who is a stranger to the property or having no authority over the property transfers the property to third person and by virtue of the same transaction confers some benefit to the owner in lieu of his property then it is the duty on the owner of the property to elect i.e. whether to retain the property or to accept the benefit. If he retains the property then he has to forfeit the benefit or in case, if he accepts the benefit then he has to forfeit the claim over the said property. 
4. The principle behind  the doctrine of election is that a person cannot approbate and reprobate at the same time. It means that, under this doctrine if a person accepts one thing then he/she has to accept it wholly and relinquish the other.  It means either the property or the benefit. If a person retains the property in that case he/she has to relinquish the benefit. In case, if he/she has accepts the benefit then he/she has to relinquish the claim over the property. 
5. The Privy Council in the case of Rungama V/s. Atchama, held that a party shall not at the same time affirm and disaffirm in the same transaction.
6. Example - P’ is a stranger/transferor who transfers the house worth Rs. 1 Lakh of ‘R’ the owner of the house to ‘S’, the transferee and in the same transaction confers benefit of Rs. 2 lakh on the owner ‘R’. Here ‘R’ as per the Section - 35 has the duty of election wherein he is having two options i.e. (i) to retain the property or, (ii) to accept the benefit.