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Showing 1 to 20 of 74 Records
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1971 (4) TMI 108 - HIGH COURT OF BOMBAY
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... ... ..... ed that, in default of payment of the fine, the accused should undergo rigorous imprisonment for four months. It has been pointed to me that the complainant Ghaswalla has, in fact, not suffered the loss of a single rupee, and it has been contended that the offence is, therefore, a technical one. It was stated to me that the complainant Ghaswalla has agreed to treat the amount of ₹ 4000/- paid by him as transferred to the credit of the Society which has already been formed in respect of the building in question, and to take the same flat from that Society on what is popularly known as ownership basis. In view of these facts I do not think the accused deserves any substantial sentence by way of fine. I, therefore, order that the sentence passed upon the accused be reduced to a fine of ₹ 100/- in default of payment of which, the accused should suffer simple imprisonment for one month. The surplus fine, if paid, should be refunded to the accused. 18. Appeal dismissed.
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1971 (4) TMI 107 - SUPREME COURT
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... ... ..... e made a dying declaration or not was an important question for decision. The trial Court accepted the prosecution evidence that the deceased was in a position to give the dying declaration and in fact he gave the dying declaration produced into Court. That finding was challenged before the High Court. But the High Court summarily dismissed the appeal. This is unfortunate There are arguable questions in this case and it was wrong on the part of the High Court to have denied the appellant the opportunity to have his case considered by the first appellate Court. The right to have at least one appeal particularly in serious cases is a substantial right and the same should not be denied except on substantial grounds. In our opinion this was a fit case for entertaining the appeal and disposing of the same after a regular hearing. 4. Hence we allow the appeal and remit the case to the High Court with the direction that the appeal be admitted, heard and disposed of according to law.
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1971 (4) TMI 106 - SUPREME COURT
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... ... ..... ind of contracts which the Corporation can make with its servants or the grounds on which it can terminate them. That being so, and the Corporation haying undoubtedly the power to dismiss its employees, the dismissal of the respondent was with jurisdiction, and although it was wrongful in the sense of its being in breach of the terms and conditions which governed the relationship between the Corporation and the respondent, it did subsist. The present case, therefore, did not fall under any of the three well recognized exceptions, and therefore, the respondent was only entitled to damages and not to the declaration that his dismissal was null and void. 13. In our view, the High Court was in error in upholding the declaration granted by the Trial Court. The appeal by the Corporation, therefore, succeeds and is allowed with the result that the judgment and decree passed by the High Court is set aside. In the circumstances of the case, however, there will be no order as to costs.
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1971 (4) TMI 105 - MADRAS HIGH COURT
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... ... ..... se orders passed by the Tahsildar. It is only his tenant Gulam Mohideen Pillai, the second respondent in the eviction proceedings, who preferred an appeal. In fact, the first plaintiff who was the first respondent in the eviction proceedings on receiving notice of the appeal filed a petition questioning the competency of the appeal preferred by the tenant. But Section 19 of the Act makes provision for an appeal within one year from the date on which the cause of action arose. It could not be said that the first plaintiff did not have a cause of action to appeal against the order in Ex. A-23 which superseded the order of the Tahsildar, and in this view, the suit is within time. But it is really unnecessary to go into the question in view of our finding on the main issue on the merits of the case. For the forgoing reasons, the decree and judgment of the trial court are confirmed and the appeal is dismissed with the costs of the contesting first respondent. 12. Appeal dismissed.
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1971 (4) TMI 104 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... on over it which is necessary and needed for purpose of carrying on his own business; and (b) a landlord on getting a rented land vacated, is entitled to occupy and use the same for any business of his and is not bound to use the rented land for the same business as was being carried on by the tenant or for the same business for which the rented land was given on rent to the tenant. 36. It is apparent from the findings recorded above that the society has satisfied all the requirements of Section 13(3)(a)(ii) and is, therefore, entitled to succeed. I would accordingly allow this petition set aside the order of the appellate authority and restore that of the Rent Controller and direct the respondent to put the petitioner Society in possession of the rented land on or before July 15, 1971. In the peculiar circumstances of the case the parties are left to bear their own costs throughout. Harbans Singh, C.J. 37. I agree. Prem Chand Jain, J. 38. I also agree. 39. Petition allowed.
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1971 (4) TMI 103 - CALCUTTA HIGH COURT
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... ... ..... s are made absolute. The orders of ad interim injunction made by the Revenue Officer on September 29, 1970, in pre-emption case No. 92/70 and on November 10, 1970, in pre-emption case No. 97/70 are set aside and the ad interim injunctions are vacated. Since we find that the ad interim injunction was without jurisdiction, the subsequent orders made by the Revenue Officer directing the petitioners to show cause why action should not be taken against them under Order 39, Rule 2 (3) of the Code of Civil Procedure and appointing Sri Prabir Kumar Choudhury, Advocate, as Commissioner for local inspection about the alleged violation are also set aside. The Revenue Officer will now proceed with the pre-emption proceedings in accordance with law after allowing reasonable time to the petitioners to file their objections. 5. We make no order as to costs of these Rules. 6. No order on the application for vacating the interim stay is in the circumstances necessary. A.K. De, J. 7. I agree.
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1971 (4) TMI 102 - SUPREME COURT
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... ... ..... re, therefore, unable to accept this contention on, the present., record. The general approach of the High Court to the problem raised in this case seems.to us to be, broadly speaking, correct; so is its final conclusion. ,The only observation of the-High 'Court which required consideration is that the sub-section in question contemplates the required number of per-. sons to work in the establishment continuously for one year. On this point we have clarified the legal position. As the High Court has dismissed the writ petition after clarifying the points of law raised leaving it to the appropriate authority to finally decide the controversy on a consideration of all the facts and circumstances we do not propose to say anything more in this appeal which has, been heard ex parte. , With the aforesaid clarification of the legal. position we. dismiss this appeal. As there is no representation. on behalf of the respondent there will be no order as to costs. Appeal dismissed.-
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1971 (4) TMI 101 - MADHYA PRADESH HIGH COURT
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... ... ..... ther persons after the defendants had already committed the breach of the original contract by refusing to deliver the diamond to the plaintiff. On the case pleaded in the plaint, it cannot be held that the pronote was intended to constitute the contract, or that the original contract of loan merged in or was extinguished by the promissory note. In these circumstances, the original contract of loan could be proved apart from the promissory note and the Court below clearly erred in not permitting the plaintiff to prove the original contract; see Ananda Namdeo v. Pundalik Tukaram, AIR 1936 Nag 225 at pp. 227-228. 11. In the result, the appeal is allowed. The judgment and decree passed by the Court below are set aside. The interlocutory order of the Court dated January 9, 1969 relating to the lien of Shri Shrivastava is also set aside. The Court shall now proceed with the trial of the suit in accordance with law. The costs of this appeal" will abide the result of the suit.
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1971 (4) TMI 100 - MADRAS HIGH COURT
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... ... ..... 377; 7146-1-9 as the principal amount of the dealings, he will be entitled to a decree only for that amount. 10. The plaintiff had also claimed interest on the amount found due for the period prior to the suit. The plaintiff had not proved any agreement between the defendant and the plaintiff for charging interest. He has also not shown as to how the plaintiff would be entitled to interest prior to the suit. We, accordingly disallow the claim for interest prior to the suit. But the plaintiff will be entitled to interest at 6 per cent per annum from the date of suit on the amount found due by the defendant. We, therefore, allow the appeal set aside the judgment and decree of the court below, and decree the suit, directing the defendant to pay the plaintiff a sum of ₹ 7146-1-9 with interest at six per cent, per annum from date of suit till date of payment. The plaintiff will be entitled to proportionate costs both in this court and in the court below. 11. Appeal allowed.
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1971 (4) TMI 99 - SUPREME COURT
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... ... ..... correlated to the services rendered. As it has been determined by us that the demand by the Market Committee could be made lawfully only in respect of a fee the validity and legality of that levy will now have to be determined by the High Court. The distinction between a fee and a tax is wel known and there are a series of decisions of this Court on what is a fee and what are the tests which distinguish it from a tax. See Delhi Cloth & General Mills Co. Ltd. v. Chief Commissioner, Delhi, & Others ( 1970 2 S. C. R. 348.). The High Court will no doubt afford the parties an opportunity of filing supplementary affidavits and documents, if necessary, for determining whether the levy made is a fee. After deciding that matter the writ petitions win have to be disposed of in accordance with law by the High Court. The appeals are allowed accordingly and the cases are remitted to the High Court for disposal. The parties will bear their own costs in this Court. Appeals allowed.
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1971 (4) TMI 98 - SUPREME COURT
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... ... ..... of Seth Harakchand Surajmal This document was relied on for the same purpose that a sum of ₹ 251245/-was mentioned by Harakchand Surajmal as due by the plaintiff these to Harakchand Surajmal. This is an inaccurate statement. The transaction was not with that firm but a different firm. It may be that Harakchand and Surajmal were partners of the plaintiff firm. That would not make the document admissible. These documents Ex. A-41, A-42 were not shown to defendant No. 1 at the time of giving oral evidence. They were not relevant to the mortgage transactions. These documents would not by themselves prove the truth of the statements contained therein particularly because of the issues in suit. 28. The High Court rightly upheld the contentions of the defendant, that the mortgage decree would be modified by giving the defendant's credit for payment of ₹ 19000/-paid on 31 December, 1953. The appeal fails and is dismissed with costs. C.M.P. 2452 of 1971 is dismissed.
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1971 (4) TMI 97 - SUPREME COURT
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... ... ..... consideration to be kept in the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the respondents. This is a special legislation conferring rights and reliefs within a specially created jurisdiction. The decree is treated like a decree of the Civil Court. The execution of the decree is not within the province of the provisions of the Code of Civil Procedure. There are special Acts for execution of decrees of the type in the present appeal. The Special Courts have been given power to grant remedies or reliefs to the judgment debtor as well as the decree-holder. Section 4 of the 1952 Act conferred right to apply to the court notwithstanding any provision contained in the Code of Civil Procedure. The High Court was, therefore, right in making the order as a court could have made at the date on which the appeal was heard. For these reasons the appeal fails and is dismissed. Each party will pay and bear their own costs. Appeal dismissed.
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1971 (4) TMI 96 - SUPREME COURT
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... ... ..... nee could not be extinguished by the seizure of the goods in its possession inasmuch as the pledge of the goods was not meant to replace the liability under the cash credit agreement. It was intended to give the plaintiff a primary right to sell the goods in satisfaction of the liability of the pawnor. The Cane Commissioner who was an unsecured creditor could not have any higher rights than the pawnor and was entitled only to the surplus money after satisfaction of the plaintiff’s dues. Defendants 3 to 5 did not file any appeal against the judgment of the High Court. The decree passed by the High Court against them would, therefore, stand. In the view that we have taken the appeal is allowed, the judgment and decree of the High Court dismissing the suit against the State, of Bihar is hereby set aside and a decree is granted against the State of Bihar in the same terms as was granted by the trial court. The appellant will be entitled to costs throughout. Appeal allowed.
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1971 (4) TMI 95 - SUPREME COURT
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... ... ..... on whether income-tax to be taken into account in calculation should be worked out after taking into account the bonus payable under the Act or without having regard to it. Consequently, there is no reason for us to differ from the view expressed by this Court in Metal Box case( 1969 1 S.C.R. 750.). This ground of challenge also, therefore, fails. As a result, we hold that the Tribunal was right in accepting the calculations made by the Company, except in respect of the interest paid on advances made by the Head Office to the Branch at Madras. The interest shown as expenditure in the accounts has to be added back, as indicated by us above, and the available surplus for purposes of calculation of the bonus payable as well as for purposes of set on or set off must be amended accordingly. We leave this calculation to the Tribunal. With this partial amendment in the award, the appeal is dismissed. In the circumstances of this case, we make no order as to costs. Appeal dismissed.
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1971 (4) TMI 94 - SUPREME COURT
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... ... ..... roceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise, that the Collector was determined to get some Inquiry Officer to report against the appellant. In the result we hold that no proper inquiry has been conducted in the case and, therefore, there has been a breach of art. 311(2) of the Constitution. The appeal is accordingly allowed and the order dated June 4, 1962 quashed. and it is declared that the appellant should be treated as still continuing in service. He should be paid his pay and allowances for the period he has been out of office. The appellant will have his costs here and in the Court of the Judicial Commissioner. Fees shall be payable by the appellant to his advocate and be allowed on taxation. Appeal allowed.
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1971 (4) TMI 93 - SUPREME COURT
Whether the levy made under the impugned rule [Rule III of the Rules framed under Section 90 of the Bihar and Orissa Excise Act, 1915] is a fee?
Whether the fee levied is, within the permissible limit?
Held that:- It is clear that before any levy can be upheld as a fee, it must be shown that the, levy has reasonable correlationship with the services rendered by the Government. In other words the levy must be proved to be, a quid pro quo for the services rendered. But in these matters it will be impossible to have an exact correlationship.The correlationship expected is one of a general character and not as of arithmetical exactitude.
In this Court Counsel for the State prayed for an opportunity to place material to show that the levy in question is not disproportionate to the value of the services rendered by the State. Ordinarily we would not have acceded to that request coming at such a late stage, particularly in view of fact that the legal position had been clarified by a long chain of decisions of this Court. There is no doubt that the State has failed to place the necessary material before the Court to justify the levy. But the fact remains that because of the negligence of those in-charge of the defence of the State, the State may suffer considerable, financial loss, if we hold that the impugned Rule is void. Hence we are constrained to give the State a further chance to prove its case.
In the result we allow the appeal, sat aside the order of the High Court and remit the case to the High Court for disposal according to law in the light of this decision. A further opportunity be given to the State to place material before that court to show that the value of the services rendered by the State has reasonable correlationship with the fee charged
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1971 (4) TMI 92 - DELHI HIGH COURT
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... ... ..... atements are borne out from the records. The objection, therefore, that no notice of assessment was served on the petitioner is factually incorrect. This takes me to the last contention. The learned counsel referred to item 34 of the Second Schedule issued under section 6 of the Act specifying the tax-free goods. This item reads electrical energy . It was contended that electric fans were excluded under this item. Electric fans are certainly not electrical energy . They work with electrical energy but are not electrical energy by themselves. They are electrical goods and as such are covered by item 18 of the First Schedule under section 5(1)(a) of the Act and tax is payable in respect of them by a dealer at the rate of ten paise in the rupee. Sales of electric fans were, therefore, rightly included by the Assistant Sales Tax Officer in the assessment order. In this view of the matter, this petition fails and is dismissed with costs. Counsel s fee Rs. 150. Petition dismissed.
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1971 (4) TMI 91 - DELHI HIGH COURT
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... ... ..... ugh a process of parching. Likewise, rice in all its forms is included in the term cereal and in common parlance, corn, rice or grain in parched form are referred to as cereals . In view of the above, we are of the view that parched rice, gram or dal continue to remain cereals within the meaning of those terms as used in item No. 1 of the Second Schedule to the Act and are thus exempt from the levy of tax under the Act except when sold in sealed containers. It is nobdy s case that the assessee sells anything in sealed containers. Our answer to question No. (2) is, therefore, in the affirmative. If parched rice, gram and dal are excluded from the assessee s turnover we do not find on record any material pertaining to the assessment years in question to sustain the impugned order of assessment. Our answer to question No. (1), therefore, is in the negative. In the circumstances of the case, the assessee will have its costs. Counsel s fee Rs. 200. Reference answered accordingly.
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1971 (4) TMI 90 - ALLAHABAD HIGH COURT
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... ... ..... fected in principle although tenders of Id. per bottle would possibly in this case have to accompany each demand. In Beecham Fords Ltd. v. North Supplies (Edmonston) Ltd. 1959 2 A.E.R. 336., it was held that on a sale of bottled Lucozade, the bottle was not sold and the charge for the bottle was in the nature of a deposit. In our view, the deposit was taken as security to compensate the assessee for loss of bottles and not as the price of bottles. Our discussion with respect to liquor bottles will also determine the nature of the transaction in respect of rum bottles. It is also a case of bailment, and there is no sale. The Standing Counsel has relied on Commissioner of Taxes v. Prabhat Marketing Co. Ltd. 1967 19 S.T.C. 84 (S.C.). It does not help him. As a result of the foregoing discussion our answer to the question referred to us is in the negative. The Commissioner, Sales Tax, shall pay costs to the assessee which we assess at Rs. 100. Reference answered in the negative.
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1971 (4) TMI 89 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... by way of appeal and revision were open to the petitioner but were not availed. It is well-settled in view of M/s. Shiv Ratan G. Mohatta s case 1965 16 S.T.C. 599 (S.C.). that it is not the function of the High Court in a tax matter to proceed to find facts. For all these reasons we are unable to accede to this contention as well. Lastly, learned counsel had raised the point that the levy of Central sales tax on hessian used for the purpose of packing the cotton bales was without the authority of law. However, in the course of argument he gave up this point and did not press the same on the ground that it was wholly inconsequential. Mr. Narula in support of his petition had merely contended himself with adopting the contentions raised by the counsel for the petitioner in Civil Writ No. 759 of 1969. No other point was raised and finding no merit in any of the contentions noticed above, we dismiss the writ petitions but would make no order as to costs. P.C. PANDIT, J.-I agree.
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