Mr. Justice G. Satapathy

Whether the provisions contained in the SARFAESI Act, 2002 would have a march over the relevant provisions contained in the Odisha Protection of Interest of the Depositors Act, 2011 (OPID Act) or not? – Sundaram Home Finance Ltd. Vs. District Magistrate-Cum- & Collector, Khordha and Others – Orissa High Court

Hon’ble Orissa High Court held that:

(i) With the assent of the President to the State Odisha Protection of Interest of the Depositors Act, 2011 (OPID Act), some provisions of which stand in conflict/ inconsistent with the provision of SARFAESI Act, said provisions of the OPID Act will prevail in the State of Odisha and over ride the provision of SARFAESI Act to said extent and the attachment as provided in OPID Act may stand on the way of the same in taking over possession as the secured asset and transfer for recovery of the loan dues at the behest of the Bank/Financial Institution advancing the loan.
(ii) A ‘priority’ conferred/provided under section 26E of the SARFAESI Act subject to the conditions as laid down being fulfilled would prevail over the recovery mechanism of the OPID Act, which even though had received the Presidential assent after the SARFAESI Act, the very amendment to SARFAESI Act with introduction of section 26E in the said Act coming into force thereafter carrying a non-obstante clause would have a march over all said provisions of the OPID Act which had its march over the SARFAESI when it had come into force after the Presidential assent.

Whether the provisions contained in the SARFAESI Act, 2002 would have a march over the relevant provisions contained in the Odisha Protection of Interest of the Depositors Act, 2011 (OPID Act) or not? – Sundaram Home Finance Ltd. Vs. District Magistrate-Cum- & Collector, Khordha and Others – Orissa High Court Read Post »

Once the signature of an accused on the cheque/negotiable instrument is established, the “reverse onus” clauses become operative and in such situation, obligation shifts upon the accused to discharge the presumption imposed upon him – Wipro Ltd., Cuttack Vs. Prasanna Kumar Baral – Orissa High Court

Section 139 of NI Act which speaks about presumption in favour of holder of cheque in the following terms that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. A plain reading of aforesaid statutory presumptions relating to dishonor of cheque makes it ample clear that the complainant has to establish by way of leading evidence that he or she is the holder of cheque and the cheque was issued by the accused, but when the same was presented got dishonored. Once these facts are established by the complainant, the burden turns to the accused to rebut the presumption that the cheque was issued not for any debt or other liability. In other words, once the complainant establishes that the cheque was issued by the accused and the same got dishonored on presentation, the accused has to establish through evidence to rebut the statutory presumption attached for dishonor of cheque, which was issued by him, was issued not for discharge of any debt or other liability.

Once the signature of an accused on the cheque/negotiable instrument is established, the “reverse onus” clauses become operative and in such situation, obligation shifts upon the accused to discharge the presumption imposed upon him – Wipro Ltd., Cuttack Vs. Prasanna Kumar Baral – Orissa High Court Read Post »

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