Goa Judiciary — Mains 2010

Draft one judgement out of the 2 (two) sets on the following facts: Frame proper issues arising out of state pleadings. Adhere to requirements of the contents of the judgement under CPC. Wherever necessary, you may exercise discretion in filling up the details while appreciating evidence, during the course of trial of a civil suit. Assign logical, legal and proper reasons in support of your findings and conclude the judgement with a proper order.) SET-A Averments in Plaint A & B (Plaintiffs) entered into an Agreement with X (defendant) on 05.04.1998 to purchase flat in the project of X developed by him for Rs. 4,50,000/- and made the payments on different dates though construction was carried out at a slow pace. The date agreed for handing over possession was on 05.05.2000 but possession was not handed over nor construction completed despite payments. Hence, the suit filed in 2007 for delivery of vacant possession of the flat with occupancy certificate and direction to execute and transfer the flat by execution of a Sale deed or alternately for a direction to the defendants to pay the amount of Rs. 4,50,000/- with interest @ 18% p.a. till payment. Averments in the written statement Defendant’s plea - suit beyond limitation and as the last payment effected on 04.04.2000. The receipt though alleged to be signed at Panaji was signed at Margaon. The plaintiffs had not paid Rs. 4,50,000/- but only Rs. 2,75,000/-. the defendant had terminated the agreement vide registered notice dated 06.06.2000 and returned the amount of Rs. 2,75,000/-. The flat was complete in all respects but the plaintiffs had failed to take possession despite the letter dated 06.06.2000 and it was sold to another party. Hence, the suit be dismissed. SET B Avermens in Plaint The plaintiff’s case in brief was that the defendant was in the business of metal stope quarry at Quepem. The plaintiff was entrusted the running of the quarry by defendant by a Memorandum of Agreement dated 23.03.2003 on rentals of Rs. 3000/- p.m. and a refundable deposit kept with defendant of Rs. 4,00,000/-. The business was dependent on the handing over of the explosive licence. He failed to hand over explosive licence in a valid condition for next 6 months. Plaintiff had employed persons to keep the machinery running. The crusher had collapsed and he had spent Rs. 80,000/- towards repairs to keep the machinery running. Defendant demanded rent, alleged construction activity and terminated the agreement. Plaintiff sent reply that machinery was old and repaired, that valid explosive licence was not handed over to exploit quarry and he was not liable to pay rent. The defendant failed and neglected to refund Rs. 4,00,000/- and the amount that the plaintiff spent towards repairs. Hence, the suit for a direction to defendant to refund Rs. 4,00,000/- and to pay Rs. 80,000/- with interest @18% p.a. from the date of agreement till payment, (if) mesne profits @ Rs. 500/- per day. Averments in the written statement Defence case: The defendant admitted the agreement and deposit of Rs. 4,00,000/- and rent fees. He denied that any agreement was made to handover valid explosive licence. The plaintiff took over possession of quarry with equipment and machinery in running condition and started operation. He denied that no work was done for 6 months and instead there was damage to machinery due to extensive use by plaintiff and as he had handed over in proper running condition. Plaintiff had not repaired machinery by spending Rs. 80,000/-. Plaintiff was under an obligation as per the terms of Agreement to maintain machinery and equipment in good condition. Plaintiff failed to handover possession of quarry and machinery despite termination of licence and hence the defendant is entitled to adjust the security deposit towards rental and repairs of machinery. There was no cause of action and suit had to be dismissed.

Discuss any four of the following: a) Mode of retirement of a partner from a firm. b) Agreement in restraint of trade vis-a-vis the outgoing partner of a partnership firm. c) Remedy available to a person dispossessed of immovable property. d) Salient features where specific performance of contract can be enforced. e) Define decree, explain preliminary and final decree.

Write short notes on any four of the following: a) Adjudication of rescission of contract or refusal. b) Contract and persons who are competent to contract. c) Contingent contracts. d) Define bailment, lien and pledge. e) What are the circumstances in which a contract is said to be induced by undue influence between the parties generally?

Answer any four of the following: a) Which persons can sue for redemption of the mortgaged property. b) Define ‘lease’ of immovable property and how it is made. c) Explain the doctrine of lis pendens and illustrate. d) What do you understand by doctrine of holding out? Elaborate with the provisions of law. e) Rights and liabilities of seller and buyer.

Answer anyfour of the following: a) Elaborate on stay of suit and res judicata and the distinct differences between the two. What do you understand by constructive res judicata? b) Elaborate on Mesne profits and decree. c) Return of plaint and rejection of plaint - effect of and the remedy to the aggrieved party. d) Mode of hearing of suit, examination of witnesses and more particularly the development subsequent to the 2002 Amendment Act. e) Enunciate the principles and provisions for amendment of pleadings.

Write short notes on any four of the following: a) How is a contract of sale made? b) What is the effect of sale by a person who is not the owner? c) Who is an unpaid seller and what are his rights? d) Elaborate on sale by a sample and its effects. e) Power and functions of a receiver.

Write short notes on any two: a. Unlawful assembly and rioting. b. Kidnapping and abduction. c. Robbery and dacoity. d. Child witness and appreciation of his evidence.

Discuss the powers of the different classes of Criminal Courts under the Code of Criminal Procedure, 1973, in respect of: a. Kinds of offences triable. b. Extent of sentences the respective Courts can pass.

A Criminal complaint, disclosing cognizable offences is filed at the police station: a. Do the police have to register the FIR. b. Can the police delay the registration of the FIR. If the FIR is not registered, what options under the Code of Criminal Procedure, 1973, are available to the complaint.

What is plea bargaining as per the Code of Criminal Procedure, 1973 and for which offences it is available? What are the powers of the Courts in plea bargaining?

Explain the considerations for grant of bail in non-bailable offences, and by which Court can such bail be granted?

Discuss the scope and applicability of Sections 34, 149, 109 and 120-B of the Indian Penal Code ?

Discuss the burden of proof and standard of proof in criminal cases. When does the burden of proof lie on the accused?

Define culpable homicide. When does it and when does it not amount to murder?

What are the principles to be kept in mind in respect of a dying declaration? Can it be the sole basis of a conviction?

Write short notes on: a. Confessions and admissions. b. Insanity as a defence in a criminal trial.

What are the predictions for applicability of Section 27 of the Indian Evidence Act, 1872?

Write an essay on any of the following: a. Brian mapping, lie detector test and narco analysis in investigations. b. Cyber crimes and the Information Technology Act, 2000.

Write a judgement on the following facts: ( Specify proper points for determination and give reasons for your conclusion on each point for determination. Conclude the judgement by proper and final order. To the extent it is necessary to elaborate appreciation of oral and documentary evidence, you are at liberty to fill in the details in the details in the case from your imagination.) The prosecution’s case is as under: The driver of an overload bus, again stopped for collecting more passengers. As the bus proceeded ahead, in a fast speed, on the curve of the road, it tilted to the side and turned turtle and fell on the road. 4passengers died and 20 suffered grievous injuries, whilst 15 suffered simple injuries. The Head Constable registered the F.I.R. against the driver, who was arrested and after the investigations, was charge-sheeted, for rash and negligent driving, knowingly causing death and causing injuries to the passengers. The defence case was that the accused was not driving the bus. He also states that in any case, the accident occurred due to a mechanical defect of the bus.