INTRODUCTION

In literary terms, a legal maxim is a very concise expression more like a term of any fundamental
rule or principle. It is often pedagogical and often relates to some specific actions. The oxford
dictionary of philosophy defines it as, “Generally any simple and memorable rule or guide for
living; for example, ‘neither a borrower nor a lender is’.1

The famous poet Tennyson speaks of ‘a little hoard of maxims preaching down a daughter’s
heart (Locksley Hall), and maxims have generally been associated with a ‘folksy’ or ‘copy-book’
approach to morality.”

The word is taken from the Latin word “maxima”. Many of the Latin maxims originate in the
European states from the medieval period, where Latin was the preferred language for legal
purposes.

According to Black’s Law Dictionary the word is defined as Maxims are but attempted general
statements of rules of law and are law only to the extent of application in adjudicated cases.2

Michael Polanyi, a Hungarian-British polymath, who made important theoretical contributions

Likewise, Sir James Mackintosh who was a Scottish jurist a Whig politician and a historian.
His studies and sympathies embraced many interests. He was trained in a number of different
professions such as doctor and barrister, and also worked as a journalist, judge, administrator,
professor, philosopher and politician. He said that, “Maxims are the condensed Good Sense of
Nations.”

Sir J.F. Stephen, an English lawyer, judge and writer, a member of the Viceregal Council and
later Professor of Common Law at the Inns of Court. He wrote in his book history of criminal
law in England that, “It seems to me that legal maxims, in general, are little more than pert

1
Oxford Dictionary of Philosophy, Maxim (Oxford University Press 2008) p. 226.
2
Black's Law Dictionary, 4th Edition.
headings of chapters. They are rather minims than maxims, for they give not a particularly great
but a particularly small amount of information. As often as not, the exceptions and qualifications
to them are more important than the so-called rules.”

Legal Maxims are necessary as we use terms to a definition

To avoid the use of long definitions we call it in one single word or a term. The same goes for a
legal maxim. For example, take a maxim ‘Ab Initio’ which means ‘from the beginning of’ or
‘from the start of something’, so instead of writing from the beginning of the entire time in a
sentence we can use the term ab initio which is actually very helpful when it is used in the
practical situation.

Each legal maxim is the concise form of a big definition and each of them came from a different
source or case laws. There are many different types of legal maxims. Most of them came from
the ancient Latin usage of a certain word or phrases.

There are many different legal maxims that are used regularly on different judicial proceedings
on other areas. Thus we see that a legal maxim is one which elucidates a legal principle,
proposition or concept. There are hundreds of legal maxims which are commonly used.

THE VIRTUE OF MAXIM

There is a certain charm about a legal maxim. It seems to bring so much knowledge in so few
words and with such definitive impact. Having heard a maxim that refers to a particular case, the
case is likely to be closed. It is covering the field, and is silencing controversy. The problem with
this method of settling a question is that we cannot always end with one maxim. Generally
several maxims are applicable, and the second demands usually a very different answer to the
question from that given by the first. “When legal maxims are quoted for the purpose of deciding
a mooted issue, the mind is in the state of the often-cited justice which, after hearing one side,
objected to hearing the other because its opinion was unsettled. Therefore, Maxims have often
been especially suitable authorities under the frameworks derived from Roman law, where a
tribunal decides a case free from the blunders involved in settling or upsetting precedents, and a
sound principle must be used as a justification for an isolated decision. In attempting to resolve a
question by maxims under our system of jurisprudence, it typically results in resolving the
problem into another double question as debatable as the first one, that is. : What of the two
maxims is applicable properly? For instance, “Equality is equity,” but on the other hand, “He
who is prior in time is stronger in light,” and “The law aids the vigilant, not the negligent.” In
this way, on almost any subject, the maxims of jurisprudence balance themselves against each
other; and the role of justice is to keep the scales so as to decide the cause by the predominating
principle. The strongest use of maxims in our legal system is not as guidelines, as a law or
precedent, but as aids to counsel in the prosecution of the dispute and in deciding what the
fundamental concept is and where the weight of justice rests in the preparation for trial. He who
will take up the merits of a case with a view to ascertain what settled maxima of the law are
susceptible of application to it, and how they may be applied So why one should be reflected in
the result, and not another, would find consistency and simplicity in his view of the case, and
strength and power in his claim, which he would not be able to obtain from a mere analysis of
precedents.

Austin Abbott says “He may not after all rely on a maxim, or even quote it as influencing the
result, but he will be likely to find that the test to which he has brought his case has promoted
much his mastery of the vital principles on which it will turn.”
 MAXIM I

ACTUS CURIAE NEMINEM GRAVABIT

It’s a Latin phrase which means “the act of the Court shall prejudice no one”. By their
Orders, the Courts take action. This term is based on the basic legal principle that courts operate
for the decree of justice and, if it is brought to their attention that a party has suffered as a result
of the Court’s “mistake,” the courts should immediately rectify the mistake by reviewing /
recalling or rectifying the said Order after convincing themselves that it has made a “mistake.”
This expression is founded on the principle that a wrong order should not be perpetuated by
keeping it alive and adhering to it.

Justice is an ideal that embodies all obstacles and the rules or procedures or technicalities of law
cannot stand in the way of judicial administration. Law must bend before decision. If the Court
found that the mistake pointed out was in mistake and the earlier judgment was not passed
except for incorrect presumption that did not actually happen and its perpetration would
result in miscarriage of justice, nothing would prevent the Court from correcting the error.
Removal of an order derives from the fundamental idea that justice is above all.
Technicalities aside if the Court is pleased with the injustice then it is its constitutional and legal
duty, by recalling its decision, to set it right.

A Latin maxim intended to insure that no party is prejudiced by any unintended or

That rule can be made to refer to any damage or injury to the party, through delay or otherwise
on the part of the court, and it is the court’s power to resolve the wrong, that must be
accomplished but there are also cases where mistake and delay on the part of the court and its
officers causes harm and damage to one or other of the parties that the court cannot, nor should,
compensate.

Where the time has expired for the filing of the judgment by the delay of the court, the judgment
shall be required to enter ‘nunc pro tunc,’ that is to say, the proceedings in question can now be
taken, instead of at the time when they were taken but for the default of the court, for the ease of
the court, by business press, taking time to deliberate on its judgment, Death of a person, or other
similar cause, as if the defendant dies pending an appeal on a point reserved on which judgment
of nonsuit is subsequently issued, his representatives are entitled, upon submission to the court,
to apply a judgment of the term following the trial, that the costs of the nonsuit may be paid to
them.

But if that judgment was not entered into by the plaintiff’s laches, or those representing him, or
by reason of any proceedings in the ordinary course of law, under this rule the court must not
intervene.

In Mitchell v. Overman (1881),3 Justice John Marshall Harlan I of the Supreme Court of United
States used these words:

“the rule established by the general concurrence of the American and English courts is, that
where the delay in rendering a judgment or a decree arises from the act of the court, that is,
where the delay has been caused either for its convenience, or by the multiplicity or press of
business, either the intricacy of the questions involved, or of any other cause not attributable to
the latches of the parties, the judgment or the decree may be entered retrospectively, as of a time
when it should or might have been entered up. In such cases, upon the maxim Actus Curiae
Neminem Gravabit, which has been well said to be founded in right and good sense, and to
afford a safe and certain guide for the administration of justice? It is the duty of the court to see
that the parties shall not suffer by the delay.”

Mohammed Gazi v. State of Madhya Pradesh,4

ISSUE

Whether a person can be penalized for no fault of his merely by resorting to equity clause in
favor of the respondent-State particularly when such person is found to have not been benefitted
or the State deprived of the benefits on account of the stay order issued by the Court?

3
Mitchell v. Overman, 103 US 62 (1881).
4
(2000) 4 SCC 342.
FACTS

Firstly tender was issued in which 4th respondent was successful tenderer then it was cancelled
on some grounds then the same tender was re notified then Appellant was a successful tenderer
who got tender orders from respondents 1 to 3.

Later 4th respondent field writ petition and obtained interim orders from high court without
making appellant as a party. In these circumstances petitioner couldn’t perform tender though
state ordered appellant to perform tender and also appellant deposited security deposit amount to
respondents 1 to 3.

Meanwhile, appellant joined writ petition filed for vacating interim orders but court dismissed
appellants request, later the writ petition of the 4 th respondent was disposed by quashing his
tender cancellation.

During this course, tender goods were perished and became useless, after those orders, appellant
requested respondents 1-3 to return his security deposit by stating that tender goods were
perishable and they were spoiled and he can’t perform the tender, but strangely 2 nd respondent
issued ante dated letter ordering to pay remaining tender amount or else they will forfeit his
security deposit and will blacklist him.

Under these circumstances the appellant was constrained to file writ petition in the High Court,
The writ petition was allowed by a learned Single Judge of the High Court on a direction to the
respondents 1 to 3 to refund the security amount to the appellant forthwith.

Challenging the said order the respondents 1 to 3 filed a Letters Patent Appeal before the
Division Bench of the High Court which was partly allowed vide the order impugned in this
appeal.

JUDGMENT

Then division bench in the appeal states that it is not the fault of appellants nor writ petitioner
and it also stated that "the submission of the learned counsel does not appear to be erroneous".
As the State also could not be held responsible for the fault, the Division Bench directed that a
sum of Rs.30, 000/- be deducted from the earnest money of the appellant”
Upon which Supreme Court made its observation as follows:

High Court division bench caused harm on the basis of equities. The arguments advanced on
behalf of the appellant before the Division Bench that there was no fault on his part because he
had offered bid and was prepared to accept the Tender leaves which he could not lift on account
of stay order were found by the Division Bench to be not erroneous.

Such a direction of the High Court cannot be sustained in view of the findings on fact returned in
favor of the appellant. In the facts and circumstances of the case, Application of maxim in the
said case, the maxim of equity namely Actus Curiae Neminem Gravabit - an act of the Court
shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense
which serves a safe and certain guide for the administration of law.

The applicability of the abovementioned maxim has been approved by this Court in Raj Kumar
Dey & Ors. v. Tarapada Dey & Ors.,5and Gursharan Singh & Ors v. NDMC & Ors.,6 Keeping
in view the facts and circumstances of the case we are of the opinion that the Division Bench of
the High Court was not justified in directing the deduction of the sum of Rs.30,000/- from the
security amount deposited by the appellant. We find that the learned Single Judge had assigned
cogent reasons for return of the earnest money to the appellant and those findings could not be
disturbed by the Division Bench allegedly on the ground of equities.

The appeal is allowed by setting aside the impugned order dated passed by the Division Bench of
the High Court of M.P. The order of the learned Single Judge is restored and the appellant held
entitled to refund of the whole amount of the earnest money deposited by him at his own costs.

Raj Kumar Dey & Others v. Tarapada Dey & Others,7

FACTS

Four brothers entered into an agreement regarding partition of movable and immovable
properties. Arbitrators were appointed award was passed and brothers were made to sign award.
Elder brother filed an application before Munsif court against that award, subsequently
appellants 1 to 4 filed application before sub-judge for arbitrator to file an award, subsequently
5
1987 (4) SCC 398.
6
1996 (2) SCC 459
7
1987 AIR 2195, 1988 SCR (1) 118.
arbitrator filed award before sub-judge in July. Later, Munsif court granted interim injunction to
maintain status quo.

Meanwhile, arbitrators made an application before sub-judge to return arbitration award for
presenting before sub-registrar for registration and the same was ordered by sub-judge.

Later, in judgment and order impugned the High Court quashed the registration under Article
227 of the Constitution holding that the award had been presented for registration beyond time.
Then the issue involved in the case is that indisputably during the period from 26th of July, 1978
to 20th December, 1982 there was subsisting injunction preventing the arbitrators from taking
any steps.

REASONING

Under this circumstances the court opinion is that, we have to bear in mind two maxims of equity
which are well settled, namely, "ACTUS CURIAE NEMINEM GRAVABIT"-An act of the
Court shall prejudice no man. In Broom's Legal Maxims, this maxim is explained that this
maxim was founded upon justice and good sense; and afforded a safe and certain guide for the
administration of the law.8 The above maxim should, however, be applied with caution.

The other maxim is "LEX NON COGIT AD lMPOSSIBILIA", according to Broom’s Legal
maxims; the law does not compel a man to do that which he cannot possibly perform. 9 The law
itself and the administration of it which was said by Sir W. Scott with reference to an so-called
violation of the revenue laws, must yield to that to which everything must bend, to necessity; the
law, in its most positive and authoritative injunctions, is understood to disclaim, as it does in its
general aphorisms, all intention of compelling impossibilities, and the administration of laws
must adopt that general exception in the consideration of all particular cases.

JUDGMENT

It was urged before us that an award affecting the immovable properties which was not
registered and which was made outside the court could not form the basis of an award and an
unregistered award, in other words could not form the basis of the award. We are unable to

8
Brooms Law Dictionary, 10th edition, 1939 at page 73.
9
Brooms Law Dictionary 10th edition, 1939 at page 162.
accept that position. There is no dispute to the proposition that an award affecting immovable
properties as in the instant case should be registered.

It is therefore, not necessary to discuss in detail the ratio of a the decision of the Full Bench of
the Andhra Pradesh High Court in M. Venkataratnam v. M. Chelamayya,10 Andhra Pradesh In
the aforesaid view of the matter the judgment and order of the High Court cannot be sustained
and are set aside. The appeal is allowed and the order of the Sub- Registrar, Arambagh dated
24th of June, 1985 is restored. In the facts and circumstances of the case, however, the parties are
directed to pay and bear their own costs.

MAXIM II
10
A.I.R. 1967.
 OBITER DICTA
Obiter dictum (most often used in the plural, obiter dicta) is Latin for a word that means
“by the way,”11 a declaration in a decision that is “said in passing.” It is a term originated
from the common law of English. Ratio decidendi is binding for the purposes of the judicial
precedent, while an obiter dictum is only persuasive.

Obiter dicta is a gracious opinion an individual impertinence whether right or wrong, wise or
foolish, binds no one in old English not even the lips that utter it. It was been given by Augustine
Birrell.

‘The term obiter dicta literally mean statements by the way. In England’s Halsbury Laws, it has
been described as statements that are not relevant to the judgment, which go beyond the ability
and lay down a law that is unnecessary for the reason in hand (usually term dicta) leaves no legal
authority on another court, although they may have some merely persuasive effectiveness.’12

A judicial statement can be ratio decidendi only if it refers to important facts and law of
the case. Statements are not crucial, or which it refer to hypothetical facts or to unrelated
law problems, are obiter dicta. Obiter dicta (often simply dicta or obiter) are comments or
observations made by a judge that, although included in the court’s opinion, do not form a
required part of the decision of the court. In a court opinion, obiter dicta include but are
not limited to, words “introduced by way of illustration, or analogy or argument.”13

In comparison to the ratio decidendi, obiter dictum is not the subject of the judicial decision,
even if the statements of law are correct. The so called Wambaugh’s Inversion Test provides that
to determine whether a judicial statement is ratio or obiter, you should invert the argument, that
is to say, ask whether the decision would have been different, had the statement been omitted. If
so, the statement is important and that is ratio; whereas if it is not important then it is obiter.

An illustration of an instance where an opinion of a court may include obiter dicta is where a
court rules that it lacks jurisdiction to hear a case or rejects the case on a technical basis. If the
court provides judgments on the merits of the argument in such a case, these opinions may be
obiter dicta. There are less clear examples of obiter dicta where, in an opinion, a judge makes a
11
Black’s Law Dictionary, p. 967 (5th ed. 1979).
12
https://www.jstor.org/
13
Black’s Law Dictionary, p. 967 (5th ed. 1979).
side comment to provide context for other parts of the opinion, or makes a comprehensive
exploration of an appropriate area of the law. Some other example is where the judge gives a
hypothetical set of facts in explaining his or her ruling and explains how he or she believes that
the law would apply to those facts.

The importance is not only on the opinion but also on the point. It is not merely an expression of
opinion unconnected with the cases for determination. “In Jaiwant Rao and other v. State of
Rajasthan, the court observed a dictum which does not form the integral part of the chain of
reasoning directed to the question decided may be regarded as ‘obiter’.”14

Judges are human beings; maybe more so; thus, they typically do not confine themselves to the
logical sequence when writing the opinion. Long decisions also reflect the eagerness of the judge
for their learning’s exhibitionism than the elucidation needed to decide the law’s proposal to
decide the case. In such cases, the major part of the decision must be viewed as obiter dictum.
For example, Indian judges are inclined to write more about philosophy (as they think) and
volumes of religion, although there is no need for such a treatise to decide the case. Justice
Verma in Prabhoo v. P.K. Kunte and Justice K. Ramasamy in A.S. Narayana v. State of A.P.
had written voluminous pages about Hindu Theology without enlightening anyone including
themselves. Naturally those pages have to be construed only as obiter.

SIGNIFICANCE OF OBITER DICTA

Only when it applies to the essential facts and law of the case then a judicial argument can be
ratio decidendi. Statements not important or relating to concrete evidence or irrelevant issues of
law then they are said to be obiter dicta. Obiter dicta (often simply dicta or obiter) are remarks or
the remarks made by a judge which, although included in the opinion of the court, are not a
binding part of the court's decision. In a court judgment, an obiter dictum includes, but is not
restricted to, words “introduced by illustration, or analogy or argument.” In comparison to the
ratio decidendi, an obiter dictum is not the object of the judicial decision, even if the statements
of law are correct.

The supposed Wambaugh’s Inversion Test gives that to decide if a legal articulation is
proportion or obiter; you ought to rearrange the contention, in other words, ask whether the
14
AIR 1961 Raj 250.
choice would have been extraordinary, had the announcement been discarded. Assuming this is
the case, the announcement is critical and is proportion; while in the event that it isn't pivotal, it
is obiter. An illustration of an instance where an opinion of a court may include obiter dicta is
where a court rules that it lacks jurisdiction to hear a case or rejects the case on a technical basis.
If the court gives opinions on the merits of the case in such a case, such opinions may constitute
obiter dicta. Less straight forward instances of obiter dicta occur when, in the judgment of a
judge, a side comment provides context for other aspects of the opinion and extensively
discusses the relevant legal area.

In the case of Bombay High Court in Popcorn Entertainment Corporation v. The City
Industrial Development Corporation,15 checked this legal position to rule that even the Supreme
Court obiter would be binding on the High Courts. To reach this conclusion, the High Court
conducted a survey of the various earlier decisions to be noted as below.

The Supreme Court while holding that obiter had only persuasive value observed in Srinivasa
General Traders v. State of A.P.,16 that every judgment must be read as applicable to the
particular facts proved, or assumed to be proved, since the overview of the expressions which
may be found there are not intended to be expositions of the whole law but governed or qualified
by the particular facts of the case in which such expressions are to be found. In Prethipal Singh
Bedi v. Union of India,17 the Supreme Court held that observations made on questions not
specifically arising for decision, but discussed are entitled to respect by succeeding bench of the
Supreme Court, though observations are obiter.

In many of the High Courts are prone to bring obiter dicta of the Supreme Court within the
purview of Article 141. In case of Narinder Singh v. Surjit Singh, the Supreme Court has
observed that when the decision of the Supreme Court in certain respect as was not to the liking
of the judge of the High Court when his own decision was set aside by the Supreme Court and
such a decision becomes the law of the land and it is the duty of everyone including the High
Court to obey the order and not try to avoid it.

15
2006 (5) MhLj 450.
16
(1983) 4 SCC 354:AIR 1983 SC 1246.
17
(1982) 3 SSC 140; AIR 1982 SC 1413.
Therefore it is pretty clear that while the established rule is indisputably that only the ratio of a
decision is binding, the law has developed considerably and mainly in the context of the Article
141 of the Constitution to the effect that even a obiter dictum of a judgment of Supreme Court is
binding on the High Court and all other authorities of the country. They cannot be disowned by
the examination that they are not the ratio of the decision.

In U.K Under the doctrine of stare decisis, statements constituting obiter dicta are not binding,
although in some jurisdictions, such as England and Wales, they can be strongly persuasive.

For instance, in the High Trees case; Central London Property dealers Ltd v. High Tree
Housing Ltd,

Facts: Central London Property Ltd constructed some houses for the people and those houses
were given in lease of Rs.2500 yearly to high tree hospital in 1937. In that course of time World
War II was taking place. These people wrote a letter to Central London Property dealers Ltd in
1939 to reduce the rent. They agreed to this and reduced to 1250. In the year 1945 Central
London Property Dealers Ltd approached the court saying that High Tree has to pay the amount
for the land from the year 1940.

Judge Denning was not content merely to grant the landlord’s claim, but added that the landlord
sought to recover the back rent from the war years, equity would have estopped him from doing
so. Since the landlord did not wish to recover any back rent, Denning’s addition was clearly
obiter, yet this statement became the basis for the modern revival of promissory estoppels, 18
Similarly, in Hedley Byrne & Co Ltd v Heller & Partners Ltd, the House of Lords held, obiter,
that negligent misstatement could give rise to a claim for pure economic loss, even though, on
the facts, a disclaimer was effective in quashing any claim. Also, in Scruttons Ltd v Midland
Silicones Ltd,19 Lord Reid proposed that while doctrine of privity of contract prevented the
stevedores in this instance from benefiting from protection of an exemption clause, in future such
protection could be effective if four guidelines (which he went on to list) were all met.

‘Georgetown College v. Hughes- In this case the plaintiff, a special nurse, employed by a patient
in the defendant’s hospital was injured as another nurse, employed by the hospital itself,

18
Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130.
19
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
carelessly pushed open a swinging door. The plaintiff sued the hospital saying that the nurse’s
act was covered under the principle of ‘Respondent superior’. The defendant, however,
contended that the above-said principle does not apply to this cause due to the reason that the
hospital was a charitable institution. The judges affirmed the charge against the hospital, but, half
of them based their reasoning on the fact that the plaintiff was a stranger to the charity was a
sufficient for the charitable trust to be liable in tort. While the others reasoned out that there must
be no blanket immunity from all tortious liabilities to a charitable institution just because it is of
a charitable nature. One of the judges, Justice Rutledge, traced back the rule of immunity to
charitable institutions from tortious liability in American courts to a dictum in a nineteenth
century British judgment.

The case in discussion is Feoffees of Heriot’s Hospital v. Ross of 1846. Lord Cottenham, in this
case, opined that the donations made to a charitable trust were intended by its donators to serve
the needy and not to spend away on law suits, so the charitable institutions must not be liable for
any tort committed by them owing to their noble cause and perpetual lack of funds to fulfill the
cause thereof. This dictum was, however, rejected by the English courts thereafter. Nevertheless
it was followed in a few American states and later went on to become the basis for the American
trust fund theory of immunity from tortious liability. This led to utter chaos in the jurisprudence
regarding the subject matter, the court’s decisions lacked uniformity even within the same
jurisdiction. The stranger was held to be entitled to damages for the management’s carelessness
in a few cases while in few others even the patient was held to be entitled to the same. In a few
cases, there was complete immunity awarded while in few others unconditional liability was
imposed.

Justice Rutledge in Georgetown College v. Hughes tries to sort out these very antithetical
judgments full of anomalies. He held that charity done without due care makes the situation even
worse and must be an actionable wrong. He dismissed the argument that the donors will be
discouraged from donating further funds to charitable institutions if they realize that the funds
are being drained into law suits. He argued that the donors’ real purpose was to help and not
harm, and this purpose will be best met by holding the careless acts liable which further induces
caution on part of the actors. The case has completed a full circle by establishing that the
charitable institution also shall be held liable unconditionally for all the acts done by it without
due and proper care. Hence, this case is a classic example of how a misinformed obiter dictum in
one jurisdiction may cause mayhem in the jurisprudence of another, if not in the same.20

CONCLUSION

As per the above discussion it clearly says that Courts may consider obiter dicta in opinions of
higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower
courts. The obiter dictum is usually translated as “other things said” but due to the high number
of judges and several personal decisions, it is often hard to distinguish from the ratio decidendi
(reason for the decision). For this reason, the obiter dicta may usually be taken into
consideration.

MAXIM III

20
Obiter Dicta, 12 Fordham L. Rev. 89 (1943). https://www.jstor.org.
 LEX NON COGIT AD IMPOSSIBLIA

MEANING

The law compels no one to do vain or impossible.

ORIGIN

Lex Non Cogit Ad Impossibilia’ is an age old maxim meaning that the law does not compel
a man to do which he cannot possibly perform. In the case of Hughey v. JMS Development,21
Justice Owens of the United States Court of Appeals used these words.
“Lex non cogit ad impossibilia: The law does not compel the doing of impossibilities”. 22 In 2012,
Justice Frankel of the British Columbia Court of Appeal rendered the maxim as follows in the
case of Transportation Lease System Inc v. Virdi,23

EXPLANATION

“Lex non cogit ad impossibilia” is a well-known maxim. It means the law does not compel a man
to do that which he cannot possibly perform.

EXAMPLE

“Where the law orders a person to perform a duty and the party is disabled to perform it, without
his default and has no remedy to it, there the law will excuse him in general”.

Lex non cogit ad impossibilia. It is indeed Latin but a very important and significant legal
maxim. The Delhi High Court in the case of Arise India Ltd. Vs. Commissioner of Trade and
Taxes,24 has held that therefore, there was need to restrict the denial of ITC only to the selling
dealers who had failed to deposit the tax collected by them and not punish bona fide purchasing
dealers. The latter cannot be expected to do the impossible. It is trite that a law that is not
capable of honest compliance will fail in achieving its objective. If it seeks to visit disobedience
with disproportionate consequences to a bona fide purchasing dealer, it will become vulnerable
to invalidation on the touchstone of Article 14 of the Constitution.

21
78 F. 3d 1523 (1996).
22
Lawtimesjournal.in.
23
Ohio APP. 2d 244 (1966).
24
S-314-HC-2017(Del)-VAT
In the case of State of Rajasthan v. Shamsher Singh,

FACTS OF THE CASE

An advocate was detained by the state in this present case and he made a representation to the
state and the representation was not presented before concerned board for consideration within
the prescribed statutory limitation. Where in the respondent who was the detained person
preferred to file a case before high court and got quashed his detention orders.

Challenging which the appeal have been preferred by the state. Under these circumstances the
court has decided the matter by applying the maxim of Lex Non Cogit Ad Impossibilia. The
extraction of application of maxim is extracted below:

“Mr. Jethmalani placed before us a passage from Broom’s Legal Maxims,25 where the doctrine
of impossibility of performance (lex non cogit ad impossibilia) has been discussed. It has been
indicated therein that however compulsory the provision may be, where it is impossible of
compliance that would be a sufficient excuse for non-compliance, particularly when it is a
question of the time factor”.

JUDGMENT

Court opined to review and consider the case of respondent by setting aside the order of
Honorable High court and allowed the appeal.

In the case of Aneeta Hada vs M/S Godfather Travels & Tours

FACTS

The appellant Aneeta Hada was an authorized signatory of International Travels Ltd., a company
registered under the Companies Act 1956. She issued a cheque for an amount of 5, 10,000/- in
favor of the respondent namely M/S Godfather Travels & Tours Ltd. which was defiled as a
consequence of which the respondent initiated criminal action by filing a complaint before the
judicial magistrate under Section 138 & 141 of the Negotiable Instruments Act and Section 292
of Indian Penal Code,1860. In that company was not held liable as an accused. However the
magistrate took cognizance of the offence against the appellant as accused.
25
10th edition, 1939 at page 162.
HISTORICAL BACKGROUND

In High Court it was held that it doesn’t matter who have to pay but person can’t escape from
liability under technical reasons i.e. the above mentioned sections say that even the company is
part of it. So either the Director or Company has to pay.

ISSUES

Whether the Company is held liable or not?

Whether the Directors of the Company are liable for the offences punishable under the above
mentioned provisions?

JUDGMENT

Supreme Court held that, keeping in view on the above mentioned sections and the facts, the
director could not held liable for the criminal offence and the proceedings against the appellant
were quashed. As far as the company is concerned it was arraigned as an accused. Hence the
appeals are allowed and the proceedings initiated against the Director as well as Company are
quashed.

APPLICATION OF THE MAXIM

“We have already opined that the decision in Sheoratan Agarwal (supra) runs counter to the ratio
laid down in the case of C.V. Parekh (supra) which is by a larger Bench and hence, is a binding
precedent. On the aforesaid ratiocination, the decision in Anil Hada has to be treated as not
laying down the correct law as far as it states that the director or any other officer can be
prosecuted without impleadment of the company. Needless to emphasize, the matter would stand
on a different footing where there is some legal impediment and the doctrine of Lex Non Cogit
Ad Impossibilia gets attracted”.