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1967 (1) TMI 93
... ... ... ... ..... ustice; as such disagreeing with the views of the two courts below I hold that the document in suit expressed acknowledgement of liability with an agreement to pay and is not a promissory note as defined in the Negotiable Instruments Act or the Stamp Act. Since I have disagreed with the views of the two courts below on the main point and the lower appellate court has not decided all the points in controversy the case has to the remanded. 19. Accordingly this appeal succeeds, the judgments of the two courts below holding the document in suit to be a promissory note are set aside and the case is sent back to the lower appellate court with a direction to readmit the appeal to its original number and decide the appeal treating the document to be acknowledgement of the liability with an agreement to pay and not a promissory note. The cost of this Court will be easy and the costs of the two courts below will abide the result of the decision to be given by the lower appellate court.
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1967 (1) TMI 92
... ... ... ... ..... 16-1-1943 and cashed on the 18th. On the facts, if limitation had been started on the 16th or the 18th the suit would have been in time; but as the Court held that the 15th was the starting point it was found to be timebarred. For reasons already set out above we would hold that the promise or acknowledgment is referable to the date on the face of the cheque and we would in respectful difference with the Punjab view hold that the latter date is the starting point. On that test the present suit brought on the 13th September 1954 was within time treating any one of the three cheques as acknowledgment under Section 20 of the Limitation Act. 14. In the result, therefore, we would allow the appeal, set aside the trial Court's judgment of dismissal and decree the suit for principal and interest; future interest also payable at 6 p.c. p.a. The defendants shall pay the costs of the plaintiff-appellant in both the Courts along with pleader's fee calculated according to rules.
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1967 (1) TMI 91
... ... ... ... ..... ove considerations I allow the Writ Petitions (other than W. P. Nos. 1093, 1095, 1098 and 1153 of 1964) and quash the orders making demands for the payment of the duty. It will be open to the authorities to call upon the petitioners to show cause against the levy of the duty, and proceed to make the proper levy after hearing their representations contra and in the light of the observations above-mentioned in this judgment. 18. The excepted writ petitions, W. P. Nos. 1093, 1095, 1098 and 1156 of 1964, are directed against the demand of the authorities against the petitioners asking them to take out L-2 licences on the ground that the preparations manufactured by them contain alcohol and therefore, licences are necessary under Section 6(2) of the Act. In view of my above decision that the preparations do contain alcohol the writ petitions filed against the demand for taking out L-2 licences, have to be dismissed and they are hereby dismissed. There will be no order as to costs.
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1967 (1) TMI 90
... ... ... ... ..... t and reported in Seth Brothers v. Commissioner of Income Tax, U. P., and the other decided by Punjab High Court and reported in N. K. Textile Mills v. Commissioner of Income-tax, (1966) 62 I. T. R. 58 (Punj), the constitutionality of section were struck down as illegal on the peculiar facts of each case. 96. For the reasons stated above, we hold that no case has been made out of any failure to comply with the provisions of section 132 or of any disobedience or disregard thereof either in the matter of the issue of authorisations for search or seizure or in the matter of actual searches and seizure of documents. 97. The Writ Petition therefore fails and is dismissed. 98. The respondents may therefore retain the books and papers with them and will deal with them strictly in accordance with the provisions of S. 132 of the Income-tax Act. The Department is relieved of the undertaking given by it in I. A. Nos. III and IV. 99. We make no order as to costs. 100. Petition dismissed.
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1967 (1) TMI 89
... ... ... ... ..... Rayon. But that is no consideration against enforcing the covenant. The evidence is clear that the appellant has torn the agreement to pieces only because he was offered a higher remuneration. Obviously he cannot be heard to say that no injunction should be granted against him to enforce the negative covenant which is not opposed to public policy. The injunction issued against him is restricted as to time, the nature of employment and as to area and cannot therefore be said to be too wide or unreasonable or unnecessary for the protection of the interests of the respondent company. 22. As regards Clause 9 the injunction is to restrain him from divulging any and all information, instruments, documents, reports, etc., which may have come to his knowledge while he was serving the respondent company. No serious objection was taken by Mr. Sen against this injunction and therefore we need say no more about it. 23. The appeal fails and is dismissed with costs. 24. Appeal dismissed.
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1967 (1) TMI 88
... ... ... ... ..... e Society against him. The information given was that, in fact, a fresh order of removal of Kanraj from service has already been passed and that order is the subject-matter of another industrial dispute before an Industrial Tribunal. In that industrial dispute, the question of the compensation payable to Kanraj is also under consideration. We think, that in view of these subsequent proceedings, it would not now be at all appropriate for this Court to set aside the order of the Tribunal directing reinstatement of Kanraj and thus create complications in respect of these subsequent proceedings. The position might have been different if we had come to the view that the Tribunal was altogether wrong in setting aside the order of removal from service of Kanraj. While we are of the view that that order was justified, we do not think that any interference with the rest of the order of the Tribunal is called for. 17. The appeal fails and is dismissed with costs. 18. Appeal dismissed.
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1967 (1) TMI 87
... ... ... ... ..... into force in 1963. Our attention has also been drawn to the Madhya Pradesh New Pension Rules, 1951. But those rules do not apply to District Judges. Further in any case the provision with respect to retiring at the age of 55 years on three months' notice was introduced in those rules in August,September 1964, and the Government could not therefore take advantage of that rule at the time when the appellant was retired. We therefore allow the appeal, set aside the order of the High Court and quash the order of retirement passed in this case. The appellant will be deemed to have continued in the service of the Government in spite of that order. As however the appellant attained the age of 58 years, in August 1966, it is not possible now to direct that he should be put back in service. But he will be entitled to such benefits as may accrue now to him by virtue of the success% of the writ petition. The appellant will get his costs from the State 1 throughout. Appeal allowed.
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1967 (1) TMI 86
... ... ... ... ..... was not in any manner entrusted with property, or with any dominion over the property in the way of his business as an agent. As neither entrustment nor agency has been proved the appellant cannot be convicted of any offence under Section 409, I.P.C. 105. Having regard to what has been held above I am bound to conclude that Pashupati's case, Cri. App No. 303 of 1960, D/- 7-6-1960 (Cal), was not correctly decided. 106. The question referred to us should, in my opinion, be answered as follows - Question No. 1-No. Question No. 2-Yes Question No. 3-No. 107. In the result, the conviction and sentence should be set aside; the appellant should be released; and if any amount has been realised from the appellant as fine, that should be refunded to him. 108. The Court In view of our unanimous judgment, this appeal is allowed, the conviction and sentence of the accused-appellant set aside and he is acquitted, and his bail bond discharged. The fine. If paid, must be refunded to him.
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1967 (1) TMI 85
... ... ... ... ..... Section 132 (11), dots not confer jurisdiction on this Court to entertain this petition. ( 7. ) Yet one other contention taken by Mr Sharma was that under Section 132A (4) (a), the Central Government is liable to pay interest on the assets retained under sub-section (5) of section 132, and, therefore, the Central Government is a necessary party to the proceeding. According to Mr. Sharma, Section 132 (5) of the Act is ultra vires of the Constitution. He is not claiming any relief under Section 132A. The reliefs claimed by him are dehors that provision. In this petition no interest under section 132 (5) is claimed. Hence the mere existence of S. 132 (5) does not entitle the petitioner to file this application. ( 8. ) For the reasons mentioned above, we are of the opinion that this Court has no jurisdiction to entertain this petition. In that view we have not gone into the merits of the case. This petition is, accordingly, dismissed with costs Advocate's fee ₹ 250.00.
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1967 (1) TMI 84
... ... ... ... ..... in law. To us it appears that the concession was rightly made and there is no substance in this branch of the contention of Mr. Roy. We need notice, in this context, that questions Nos. 3 and 4 referred to this court do not in terms accommodate this argument of Mr. Roy in the form made and we do not, therefore, make much of this argument. The answer to question No. 3 is really dependent upon the answer to question No. 4, because the grant of registration to an invalidly constituted firm was thought to be prejudicial to the interest of revenue. Since we are of the opinion that the firm was not invalidly constituted, our answers to questions Nos. 3 and 4 are Question No. 3--in the negative. Question No. 4--also in the negative. The point taken before us was a debatable point and we do not think that we should be justified in awarding costs in favour of the assessee in the instant case. We, therefore, make no order as to costs. MASUD J.--I agree. Questions answered accordingly.
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1967 (1) TMI 83
... ... ... ... ..... t-to our notice some decisions which have taken the same view. The Calcutta High Court in Saifar v. State of West Bengal (A.I.R. 1962 Cal. 133), following the Full Bench decision of the Judicial Commissioners, Sind, in Mehrab v. Emperor (A.I.R. 1924 Sind 71), held that when a Magistrate takes 'Cognizance under s. 190(1)b) on a police report he takes cognizance of the offence and not merely of the particular persons named in the charge sheet, and therefore, the Magistrate is entitled ,to summon additional accused against whom he considers that there was good evidence, after perusal of the statements recorded by the police under s. 161 and the other documents referred to in s. 173 even without examination of witnesses in court. The Punjab High Court in Fatta v. The State (A.I.R. 1964 Pun. 351) and the -Allahabad High Court in Ali Ullah v. The State ( 1963 1 Cr. L.J. 66) also expressed a similar view. In the result the appeal fails and is dismissed. V.P.S. Appeal dismissed.
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1967 (1) TMI 82
... ... ... ... ..... ny citizen the State had merely. entered upon a trading venture. By entering into competition with the citizens, it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is. issued. We are therefore of the view that the order made by the State in exercise of the authority conferred by s. 3(1)(b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under- Art. 358 of the Constitution, since the Order was not supported by any valid legislation. The appeal therefore fails and is dismissed. Appeal dismissed.
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1967 (1) TMI 81
... ... ... ... ..... State Police Service Officers who were officiating on senior posts due to shortage of officers were primarily those who had been considered for absorption into the I.P.S. under the Promotion Quota or under the Emergency Recruitment but had not been found fit for such absorption." This statement is denied by the appellant. We agree with him that such a stop-gap arrangement cannot last for eight years and it has not been shown that the appellant was appointed temporarily in place of some persons as subsequently he has never been reverted. Further the fact that he was appointed to the post at the time when vacancies fell negatives that it was merely a temporary arrangement. In the result we accept the appeal, quash the impugned order dated August 25, 1955, and direct the Central Government to fix the year of allotment and seniority of the appellant in accordance ,with this judgment and the law. The respondent will pay costs of the appellant in this appeal. Appeal allowed.
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1967 (1) TMI 80
... ... ... ... ..... if read together, go to show that reliance was not placed by the department on the said certificate and opportunities were given to the assessee-company and Messrs. Surajmull Nagarmull for giving satisfactory explanation as to the source of the said sum of ₹ 1,40,000. It appears from these facts that the assessee's onus to prove the source remains undischarged. Further, these statements in the Appellate Assistant Commissioner's order also repel a faint suggestion of Dr. Pal that there was denial of natural justice to his client. For all these reasons stated above, it is impossible to say that there is no evidence which would support the Tribunal's conclusion. Nor can we hold that the conclusions arrived at by the Tribunal are perverse. Accordingly, we answer the question in the affirmative and against the assesseecompany. The assessee-company shall pay the costs of this reference to the respondent. BANERJEE J.--I agree. Question answered in the affirmative.
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1967 (1) TMI 79
... ... ... ... ..... ch, on the ground of bribery, was pending; and, as his seat was not claimed, a new writ was issued. Being again returned, a petition was presented against his second election, claiming the seat for another candidate. The petition against the first election came on for trial, and the committee reported that the sitting Members, Lord Bury and Mr. Schneider, had been guilty, by their agents, of bribery at that election. By virtue of that report, Lord Bury, under the Corrupt Practices Prevention Act, became incapable of sitting or voting in Parliament, or, in other words, ceased to be a Member of the House; but as a petition against his second return, claiming the seat, was then pending, a new writ was not issued Parl. Deb. (1859) 155, c. 865 ." For these reasons we hold that the High Court was right in holding that no case was made out for the issue of a writ of mandamus to the Election Commission and this appeal must be accordingly dismissed with costs - Appeal dismissed.
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1967 (1) TMI 78
... ... ... ... ..... commercial transaction, as this was, is reviewed, the fact that there are two ways of carrying it out-one by paying the maximum amount of tax, the other by paying no, or much less, taxit would be quite wrong as a necessary consequence, to draw the inference that, in adopting the latter course, one of the main objects is, for the purposes of the section, avoidance of tax. No commercial man in his senses is going to carry out a commercial transaction except upon the footing of paying the smallest amount of tax that he can. The question whether in fact one of the main objects was to avoid tax is one for the Special Commissioners to decide upon a consideration of all the relevant evidence before them and the proper inferences to be drawn from that evidence. For these reasons I would dismiss this appeal. Appeal dismissed. Solicitors Solicitor of Inland Revenue; William A. Crump & Son for Morton, Smart, MacDonald & Milligan, Edinburgh, and L. Mackinnon & Son, Aberdeen.
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1967 (1) TMI 77
... ... ... ... ..... ation, under s. 4, was issued by the Assistant Secretary, Land and Revenue Department Government of West Bengal. We are in entire agreement with the reasons given by the Division Bench of the Calcutta High Court for upholding the validity of the notification, dated, February 4, 1955, issued under 4 of the Act. Before we conclude, we should also make it clear that' in this case, no contention was advanced that matters connected with the issue of a notification, under s. 4 of the Act cannot be delegated by the Minister-in-charge and that they have to be dealt with by the Minister himself. We had, therefore, no occasion to consider this aspect of the matter. As' pointed out above, the entire arguments have proceeded on the basis that there has been no such delegation, by the Minister, under the Standing Orders made by him. The result is, that the appeals fail and are dismissed with costs of the respondents, one' set in Civil Appeal No. 216 of 1964. Appeals dismissed
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1967 (1) TMI 76
... ... ... ... ..... ely laid out for the purpose of the business and the Tribunal was in error in not allowing the deduction of such expenditure under section 10(2)(xv). Dr. Pal, in his fairness, did not contend that the sum of ₹ 8,550, paid as passage money to Mrs. Baptist and the children, the sum of ₹ 25 spent on the wreath sent to the deceased and ₹ 250 incurred as expenditure for repairs to the grave of the deceased should also be allowed as expenditure under section 10(2)(xv). We, therefore, answer question No. 1 partly in the affirmative, that is to say, instead of ₹ 14,855, ₹ 6,000 should have been allowed as expenditure laid out or expended wholly and exclusively for the purposes of the assessee's business and as such was allowable under section 10(2)(xv) of the Indian Income-tax Act. We answer questions Nos. 2 and 3 in the affirmative. The respondent, Commissioner of Income-tax, is to pay the costs of this reference to the assessee. MASUD J.--I agree.
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1967 (1) TMI 75
... ... ... ... ..... such facts available to the department. The Malegaon Electricity Co.'s case therefore, is distinguishable upon its own facts. 79. In the view which we take, it is unnecessary to go into the further point urged by Mr. Palkhivala on behalf of the petitioner as to vires of rule 15 What Mr. Palkhivala urged was that, if rule 15 were to justify the assessment of estate duty on the "assets basis" without providing for it in the tax law, it is ultra vires of sections 36 and 37 of the Act. We have already shown that, in our opinion, rule 15 does not apply to the facts and circumstances of the present case. Therefore, it is unnecessary to consider whether it is also ultra vires the provisions of the Act. 80. In the result, we allow the petition and quash the notice dated 23rd January, 1963, and prohibit the respondent from making any order of reassessment upon that notice. The respondent to pay the petitioner's costs quantified at ₹ 2,000. 81. Petition allowed
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1967 (1) TMI 74
... ... ... ... ..... e did not become part of the Act (see s. 77 of the Mysore Forest Act). Again Art. 304(b) exempts from the operation of Art. 301 reasonable restrictions on the freedom of trade, commerce and intercourse with or within the State as may be required in the public interest. There is no evidence of an enquiry made by the State before the provisos were framed, and no case is made out that they are reasonable restrictions on the freedom of trade, commerce and intercourse imposed in the public interest. Article 301 in terms prohibits the imposition of any restriction on trade, commerce and intercourse throughout the territory of India, and by the enactment of the two provisos clearly a restriction is imposed upon the freedom of trade. The provisos to the rule enacted by the State Government must therefore be deemed to be invalid as infringing the guarantee under Art. 301 on the freedom of trade, commerce and intercourse. The appeal fails and is dismissed with costs. Appeal dismissed.
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