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Showing 21 to 40 of 737 Records
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2008 (4) TMI 813 - SUPREME COURT
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... ... ..... he Court's jurisdiction to entertain and decide a matter, as otherwise, the decision rendered without jurisdiction will be a nullity. However, we are not required to elaborate on the said proposition, inasmuch as, in the instant case such a plea had been raised and decided by the Trial Court but was not reversed by the First Appellate Court or the High Court while reversing the decision of the Trial Court on the issues framed in the suit. We, therefore, have no hesitation in setting aside the judgment and decree of the High Court and to remand the suit to the First Appellate Court to decide the limited question as to whether the suit was barred by limitation as found by the Trial Court. Needless to say, if the suit is found to be so barred, the appeal is to be dismissed. If the suit is not found to be time-barred, the decision of the First Appellate Court on the other issues shall not be disturbed. The appeal is accordingly allowed, but there will be no order as to costs.
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2008 (4) TMI 812 - KARNATAKA HIGH COURT
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... ... ..... atically fall and no cognizance thereof can be taken. 16. It may also be pertinent to note here that Revenue had also realised its mistake of sending invalid and incomplete notice to the assessee under Section 148 of the Act, and therefore the Commissioner of Income Tax (Appeals) while passing order dated 04.12.1098 had granted an opportunity to the Assessing Officer to issue fresh notice if so advised, but unfortunately' the Revenue did not rise to the occasion and did not take benefit of the opportunity extended to it by the Commissioner of Income Tax. It rather sat quiet over the matter. Para 7 of the older passed by the Commissioner of Income Tax (Appeals) deals elaborately with this aspect of the matter. 17. In view of this, questions of law as have been projected in the two appeals are to be answered in favour of the assessee and against the Revenue. We accordingly do so. Appeals stand disposed of. Copy of the order be retained in connected appeal, i.e., No.22/2003.
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2008 (4) TMI 811 - COMPANY LAW BOARD
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... ... ..... Exit Scheme, 2005” undertaking to contribute the compensation in terms of this order, before getting the name of the company stuck off from the register of companies under section 560 of the Act, through the operation of the “Simplified Exit Scheme, 2005”. (v) The board of directors of the company shall distribute the sale proceeds of the properties of the company in favour of all the shareholders in proportion to their shareholding, after meeting the statutory liabilities and expenses if any, before availing of the benefit of the “Simplified Exit Scheme, 2005”. (vi) The Bench Officer shall forward a copy of the order to the Registrar of Companies, Karnataka at Bangalore, for appropriate action, in pursuance of the directions, as per clauses (i) and (iv) here above. 10. With the above directions the company petition and the connected applications are disposed of, without any order as to costs. In view of this, all the interim orders are vacated.
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2008 (4) TMI 810 - MADRAS HIGH COURT
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... ... ..... evidence, taken as a whole, is not reasonably capable of supporting the finding." 29. On a careful consideration of Exs.A.1 and A.3, I am of the view that the first appellate Court had grievously erred in granting the decree on the basis of the said document which necessitates interference by this Court invoking Section 100 of the Civil Procedure Code. 30. Therefore, I am inclined to set aside the judgment and decree of the first appellate Court, as it misconstrued the documents in Exs.A.1 and A.3. 31. In the result, the Second Appeal is allowed by setting aside the judgment and decree dated 23.03.2006 in A.S.No.46 of 2005 on the file of Principal District and Sessions Judge, Madurai and the judgment and decree dated 21.06.2005 in O.S.No.151 of 2003 on the file of Second Additional Subordinate Judge, Madurai is restored. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
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2008 (4) TMI 809 - SUPREME COURT
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... ... ..... ned in the first set of claims cases in the same manner as the driver of the truck was examined in the second set of cases (which has been filed by the Appellant). 25. If we accept the contention of Ms. Suri that the Tribunal committed an error, in effect and substance, we will be holding that the Tribunal committed an illegality in awarding compensation to the passengers of the bus. It was in that sense, the High Court cannot be said to have committed any error in holding that the appellant was also an aggrieved person. Furthermore, both the Tribunal and the High Court have rightly arrived at a finding of fact that it was the appellant alone who was rash and negligent in driving of the vehicle. No case had been made out to differ with the said finding of fact. 26. For the reasons aforementioned, the impugned judgment does not suffer from any legal infirmity. It is therefore, dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.
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2008 (4) TMI 808 - ORISSA HIGH COURT
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... ... ..... as a party has already explained how those directions are to be considered and implemented while exercising jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India. See Susant Kumar Roy v. Mira Roy and Ors. reported in AIR2007Ori26 . So, in the facts of the case, the writ petition is misconceived. 25. For the reasons aforesaid, the writ appeal is allowed, the writ petition is dismissed and the order of the learned Judge of the writ Court is set aside. 26. We make it clear that we are not to, as we are not called upon to, in this jurisdiction, examine the order of the learned Civil Judge (Senior Division) on merits. Nothing said by us in this judgment shall be construed as an expression of opinion by us on the merits of the order passed by the Civil Court and the remedy of the writ petitioner against the order of the Civil Court has not been in any way impaired by this judgment. There shall be no order as to costs. B.N. Mahapatra, J. 27. I agree.
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2008 (4) TMI 807 - SC ORDER
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... ... ..... ents with Ms. Alka Sharma, learned counsel at 10.30 a.m. and concluded at 11.10 a.m. Thereafter, Mr. Rupesh Kumar, learned counsel argumed from 11.10 a.m. to 11.30 a.m. Hearing concluded. Judgment reserved. Written submissions be filed within one week.
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2008 (4) TMI 806 - SUPREME COURT
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... ... ..... tional validity of this enactment which is the subject-matter of contest in these present proceedings . 51. The fact that the hoarding is on building or private land does not take away the regulatory measures relating to hoardings. There can be cases where because of the size and the height, it can be dangerous to public and also be hazardous. There is no structural safeguard in respect of such hoardings. There has to be regulatory measures. As has been rightly contended by learned counsel for the respondents, the Act and the Advertisement Rules do not regulate advertisement. They regulate putting of the hoarding which is found to be objectionable, destructive or obstructive in character. 52. It cannot be said that there is infringement of freedom of speech. The content, effect and the purpose of statute clearly show that it is not intended to be so. 53. The inevitable result is that the appeals and writ petitions are without merit and deserve to be dismissed which we direct.
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2008 (4) TMI 805 - DELHI HIGH COURT
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... ... ..... L.R. Gupta & Ors. vs. Union of India & Ors. (1992) 101 CTR (Del) 179 (1992) 194 ITR 32 (Del) and CIT vs. Ravi Kant Jain (2001) 167 CTR (Del) 566 (2001) 250 ITR 141 (Del) and several other decisions following these two decisions. 5. Insofar as the present case is concerned, there was no material found during the course of the search which would lead to a conclusion of undisclosed income in respect of the property at Sainik Farms. It is only on the basis of the return filed by the assessee followed by the report of the DVO that the AO concluded that there was some undisclosed income in respect of the property at Sainik Farms. Under the circumstances, insofar as this issue is concerned, no substantial question of law arises for consideration. 6. Learned counsel for the Revenue says that she would like to look into the issue regarding apportionment of undisclosed income of ₹ 10,59,700. Limited to submissions on this issue, the matter is adjourned to 10th Nov., 2008.
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2008 (4) TMI 804 - BOMBAY HIGH COURT
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... ... ..... profits will have a different colour. If the suit is decreed, use and occupation including possession of the defendant pending trial of the suit would, obviously, be without authority of law making him liable to pay mesne profits for the period for which plaintiffs were kept out of possession of the suit property. Both the chamber summons stand disposed of in terms of this order. Order accordingly. 42. At this stage, Mr. Chhagla, learned Senior Counsel appearing for the plaintiffs prayed for stay of the operation of the order pronounced. The said prayer is opposed by the learned Counsel for the defendant. During the course of hearing Mr. Chhagla for the first time brought to my notice that the order passed by the Court Receiver is actually acted upon by the defendant and that the defendant has been paying the amount of royalty fixed by the Court Receiver. If this be so, the effect and operation of para-36 of this order is liable to be stayed for eight week. Order accordingly.
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2008 (4) TMI 803 - SUPREME COURT
Murder - Criminal conspiracy - Mere Suspicion - Sufficient ground for proceeding against the accused or not - Application filed by the appellant u/s 227 of the Code of Criminal Procedure, 1973 (the Code) for discharge - charge-sheet filed against the appellant before the Juvenile Court, being below 18 years of age, and against fifteen other persons, which included his father (A-1), mother (A-2), sister (A-4), a family friend (A-11), manager of his father (A-12), in Sessions Court. All of them have been arraigned as members to the conspiracy to murder Kunal.
HELD THAT:- A mere suspicion is not sufficient to hold that there is sufficient ground to proceed against the accused, learned counsel placed reliance on the decision of this Court in Union of India Vs. Prafulla Kumar Samal & Anr.
It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.
The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal [1978 (11) TMI 151 - SUPREME COURT].
In State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors.[1996 (4) TMI 515 - SUPREME COURT], a three-Judge Bench of this Court held that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use.
It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.
From the material on record, it is manifestly clear that it was the family members of the appellant, one of their employees and a friend who allegedly had all entered into an agreement to eliminate the deceased. However, as noted above, accused A-1, A-2, A-4, A-11 and A-12 already stand discharged from the charges framed against them under Sections 120B and 302 I.P.C vide orders passed by the High Court and the Sessions Judge respectively. While discharging the said accused, both the courts have come to the conclusion that there is no material on record to show that they had hatched a conspiracy to commit murder of Kunal. Thus, the stand of the prosecution to the effect that the parents, sister and friends of the appellants had entered into a criminal conspiracy stands rejected by virtue of the said orders of discharge.
Furthermore, in its order, the High Court has opined that the circumstances, relied upon by the prosecution, even if accepted in its entirety, only create a suspicion of motive, which is not sufficient to bring home an offence of murder. As noted above, State's petition for special leave against the said judgment has already been dismissed.
We are, therefore, of the view that in the light of the subsequent events, namely, the orders of the High Court in Criminal Writ Petitions discharging appellant's mother, sister and two close associates, accused Nos.2, 4, 11 and 12 respectively passed by this Court dismissing the Special Leave Petition preferred by the State and order passed by the Sessions Judge, discharging the father (A-1) of the appellant, stated to be the mastermind behind the entire conspiracy, for offences under Sections 120B and 302 I.P.C., on same set of circumstances and accusations, no sufficient ground survives to proceed against the appellant for the aforementioned offences.
Therefore, we are constrained to allow the appeals. Consequently, the impugned orders are set aside and the appellant is discharged from the charges levelled against him in the charge-sheet.
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2008 (4) TMI 802 - SUPREME COURT
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... ... ..... any, purported to have been issued by the State has not been brought on record. On what basis, the supervision charges were being calculated is not known. The premise for levy or recovery of the amount of supervisory charges is not founded on any factual matrix. Only the source of the power has been stated but the basis for exercise of the power has not been disclosed. 16. We, therefore, are of the opinion that there is no infirmity in the impugned judgment. 17. So far as the question of payment of interest is concerned, it must be referable to the statute. When the statute controls the levy, the interest payable thereupon, as envisaged thereunder must also govern the field. The general principle of restitution may not apply in this case. 18. The High Court having exercised its discretionary jurisdiction in the matter, we do not find any reason to take a different view. The impugned judgment, therefore, needs no interference. The appeal is dismissed with no order as to costs.
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2008 (4) TMI 801 - GUJARAT HIGH COURT
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... ... ..... bility certificate in terms of clause 7(d) of the Incentive Scheme, if permissible under the Incentive Scheme. 23. It is clarified that the above directions are given in the peculiar facts and circumstances of the case where this Court had restrained the State Government from granting any permission under the Wild Life (Protection) Act, 1972 and the Apex Court reversed the decision of this Court and directed the State Government to issue the permission under the Act after considering the events commencing from 1990 onwards, including the observation made by the Apex Court in the judgment dated 19.01.2004 that while rejecting the present petitioner -company’s review application in 2000, this Court did not avail of the opportunity for rectifying the error made by this Court earlier in deciding against petitioner - Essar Oil Ltd. without hearing it. 24. The petition is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent with no order as to costs.
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2008 (4) TMI 800 - SUPREME COURT
Application Under Order VII Rule 11 of the Code of Civil Procedure, 1908 claiming rejection of the plaint - rejection on the ground that the suit filed was barred by res judicata - Allegedly, the eldest son of Kabadi Gopalsa went out of the joint family by executing a registered Deed of Release upon taking his share in the ancestral property on or about 10.03.1918 - partition is said to have taken place between two sons of Chinnusa, i.e., Kabadi Giddusa and Kabadi Gopalsa on or about 1.05.1926 - Kabadi Gopalsa died in 1947 -
HELD THAT:- Suit was filed by Ramusa (son of Gopalsa) against his mother and three brothers in respect of three house properties being Item Nos. 1, 2 and 3 and the Revenue land (Item No. 4). Defendant No. 3 in the said suit was the grand father of the deceased husband of the appellant No. 1 in the present case.
For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision.
The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.
It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
We may proceed on the assumption that the shares of the parties were defined. There was a partition amongst the parties in the sense that they could transfer their undivided share. What would, however, be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds is a question which, in our opinion, cannot be gone into in a proceeding under Order VII, Rule 11(d) of the Code.
The plaintiff - appellant might not have prayed for any decree for setting aside the deeds of sale but they have raised a legal plea that by reason thereof the rights of the co-parceners have not been taken away. Their status might not be of the coparceners, after the preliminary decree for partition was passed but as we have indicated hereinbefore the same cannot be a subject matter of consideration in terms of Order VII, Rule 11(d) of the Code.
In Tara Pada Ray v. Shyama Pada Ray and Ors. : AIR1952Cal579 wherein the averments made in the deed of sale had been taken into consideration. Therein, however, the Calcutta High Court noticed that the final decree proceedings need not be resorted to where the directions contained in a preliminary decree had been acted upon by the parties. Even such a question is required to be gone into.
In Kalloomal Tapeswari Prasad (HUF), Kanpur v. Commissioner of Income Tax, Kanpur [1982]133ITR690(SC) to contend that even partial partition is permissible. No exception thereto can be taken but the effect thereof vis-`-vis another suit, it is trite, cannot be determined under Order VII, Rule 11 of the Code.
Therefore, the impugned order cannot be sustained. The appeal is allowed. We, however, must make it clear that the parties would be at liberty to raise all contentions before the learned Trial Judge at appropriate stage (s).
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2008 (4) TMI 799 - BOMBAY HIGH COURT
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... ... ..... r filing the appeal. However, the appeal was filed on 31/8/2007. The reasons given for the delay in filing the appeal is that it was beyond the control of the appellant’s office and non availability of Court fees stamp. The reasons given are totally unsatisfactory. No case is made out for condoning the delay. Notice of Motion is dismissed with no order as to costs. 2. Notice of Motion is disposed of accordingly with no order as to costs.
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2008 (4) TMI 798 - DELHI HIGH COURT
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... ... ..... view of our order dated 23rd April, 2008 passed in ITA No.603/2007 (Commissioner of Income Tax v. NHK Japan Broadcasting Corporation), the appeal filed by the Revenue is required to be dismissed. It is ordered accordingly.
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2008 (4) TMI 797 - SUPREME COURT
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... ... ..... not be tried by the court where no part of offence was committed. 4. The facts stated in the complaint disclose that the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The Court at Rajasthan does not have the jurisdiction to deal with the matter. On the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable conclusion is that no part of cause of action arose in Rajasthan and, therefore, the Magistrate concerned has no jurisdiction to deal with the matter. As a consequence thereof, the proceedings before the Additional Chief Judicial Magistrate, Sri Ganganagar are quashed. The complaint be returned to the complainant and if she so wishes she may file the same in the appropriate court to be dealt with in accordance with law. 5. The appeal is accordingly allowed.
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2008 (4) TMI 796 - SUPREME COURT
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... ... ..... duty on import in relation to the unlifted portion of the designated quantum of rectified spirit as provided for in the Rules. Respondents did not disclaim their liability. They, in fact contended that the entire liability for the period between 1.4.1993 and 31.3.1994 should be taken into consideration but then for determining the actual liability the appellants were bound to give credit to each and every pie which was realized during the said period. The contention of the State, to our mind, is wholly unjust and unfair. If there was a default on the part of the respondents as a licencee, interest would be charged only for the period during which licence amount was not paid. Interest cannot be charged although no amount was due. Some amount might be due but not the entire amount on which interest is being claimed. 19. For the reasons aforementioned, there is no merit in the appeal. The appeal is dismissed with costs quantified at ₹ 10,000/- (Rupees ten thousand only).
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2008 (4) TMI 795 - SC ORDER
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... ... ..... a, Adv., Ms. Roopali Singh, Adv., Mr. R. Jawahar Lal, Adv., Mr. Karan Talwar, Adv. for M/s. Dua Associates, Advs. For the Respondent- Mr. T.L.V. Iyer, Sr. Adv. Mr. P.V. Dinesh,Adv. ORDER Leave granted. The Appeal is disposed of in terms of the signed order.
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2008 (4) TMI 794 - SC ORDER
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... ... ..... shall be stay of operation and effect of the impugned final order of the Customs, Excise and Service Tax Appellate Tribunal.
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