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Case Laws
Showing 21 to 40 of 135 Records
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1976 (8) TMI 165
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... ... ..... the official liquidator has been appointed as a provisional liquidator." None of these conditions is present. At one stage the winding up petition was pending but never a provisional liquidator was appointed. No winding up order has been made. The company can pursue its legal remedy in the ordinary way in a civil court. I, Therefore, reject this part of the prayer. (15) The other application is under s. 151 of the Code of Civil Procedure. In this application only interim relief was sought. On November 28, 1973, Anand gave an undertaking that he will not remove, alienate or transfer in any manner whatsoever any furniture or fixtures lying in bungalow No. 88, Sunder Nagar, New Delhi. He also undertook that he will not part with the possession of the said bungalow. In view of the undertaking given by Anand no further orders are called for in this application. The undertaking will remain binding. (16) The above applications are disposed of in the manner as indicated above.
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1976 (8) TMI 164
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... ... ..... en terminated treating him as a trespasser and an application under section 41 of the S.C.C. Act. For the purpose of the point at issue the distinction is more illusory than real. Two remedies, previously, were available to the licensor. He could avail the one or the other. The scope of the trial, disposal and further remedies in the two proceedings were different. But it is wholly wrong to say that if a licensor filed an application under section 41 of the S.C.C. Act instead of filing a regular civil suit by implication treated the occupant of the premises against whom the S.C.C. application was filed as a subsisting.licensee. In our opinion the judgment of the High Court is wholly wrong and suffers from serious infirmities of law and facts. We accordingly allow this appeal, set aside the judgment and order of the High Court and restore that of the Small Cause Court. The respondent must pay the costs to the appellants in this Court as also in the High Court. Appeal allowed.
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1976 (8) TMI 163
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... ... ..... e Act was sent within six months by a properly addressed pre-paid registered letter and it was returned with the enforcement 'left' it was held that the endorsement was not sufficient to prove the contrary and the notice was deemed to have been effectively served within six months as required by Section 124 of the Act, read with Section 110 (2) thereof. 5. With respect I am in entire agreement with their Lordships of the madras High Court. The facts in that case, as I have already said, are almost identical with the facts of the present case. That being so, I am of the view that the notice in the instant case was served within the statutory period of six months and the order of confiscation of the seized goods cannot be challenged on that ground. The contention on behalf of the petitioner therefore fails. In the result, this application fails and is dismissed. The Rule is discharged. All interim orders are vacated. There will be no order as to costs, rule discharged.
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1976 (8) TMI 162
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... ... ..... n that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants. Mr. Tarkunde also submitted that since the Calcutta High Court has held in Yogamaya Pakhira v. Santi Subha Bose(1) that a permanent lessee is not an owner within the meaning of section 13 (1)(f) a co-owner would not be in a better position. We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is. We, however, express no opinion about the case of a permanent lessee as this point does not arise in this appeal. As all the submissions of the appellant fail, the appeal is dismissed. We will, however, make no order as to costs. Appeal dismissed.
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1976 (8) TMI 161
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... ... ..... 8.) also lend support to the above view. It may be stated that the reasoning employed in the eases mentioned above was different and not identical, but whatever might be the nature of that reasoning the fact remains that the learned Judges deciding those cases were all at one on the point that such a suit should be brought against the Government, which means in the present case the Union of India. Any contrary view would be against the well-established practice and procedure of law, as evidenced by various decisions of the High Courts, and as such, must be rejected. o p /o p Submission has also been made on behalf of the appellant that the High Court should have allowed the appellant to amend the plaint. We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted. o p /o p The appeal consequently fails and is dismissed but in the circumstances without costs. o p /o p M-R. Appeal dismissed. o p /o p
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1976 (8) TMI 160
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... ... ..... in appeals Nos. 2402 and 2403 of 1972. The High Court, however, was wrong in overlooking an important point affect- ing compensation payable to the erstwhile owners of the potential building area involved in appeals Nos. 2694, 2695 and 2697 to 2700 of 1972. The said claimants having claimed compensation only at the rate of ₹ 4.00 per sq. yd. in the first appeals filed by them in the High Court, they could not have been awarded compensation exceeding that rate. Thus the said appeals filed by the State cannot but be allowed to the extent to which the compensation awarded to the claimants in respect of the potential building area acquired exceeds ₹ 4.00 per sq. yd. In the result, appeals Nos. 2394 to 2403 of 1972 and 2703 and 2704 of 1972 fail and are hereby dismissed with costs (limited to one hearing fee) and appeals Nos. 2694, 2695 and 2697 to 2700 of 1972 are allowed with costs (limit- ed to one hearing fee) to the extent indicated above. Appeals partly allowed.
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1976 (8) TMI 159
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... ... ..... uld have been differently argued. It was held in the case of S. Anthony v. Francis Anthony, (AIR 1962 Mad 304) that review cannot be granted on the mere ground that the particular counsel who appeared for a party failed to raise a particular point, in spite of instructions. In the present case, there is not even an allegation that the counsel was instructed to argue something and he did not argue it. 3. Learned counsel has relied on the decision in Jamna Kuer v. Lal Bahadur, (AIR 1950 FC 131) in support of his contention that a review lies where the counsel commits a mistake. But that was a case in which a mistake had crept in the judgment of the High Court owing to an oversight. The present case is not such a case. The writ petition was argued by a fully qualified counsel and was decided after full consideration of his arguments. It is not open to an Advocate, subsequently engaged, to judge the wisdom of the Advocate who had argued the case. 4. The application is dismissed.
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1976 (8) TMI 158
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... ... ..... y the resolution of 24 February, 1952. No levy was actually imposed pursuant to the resolution of 10 August, 1964. Further the bills served on the appellant were pursuant to the levies imposed under the resolution of 24 February 1952. In 1964 a tax on factory buildings was not raised. The tax on houses was raised. Even if the resolution of 10 August, 1964 be invalid the demands made by the respondent under the 1952 resolution are valid and legal for two reasons. First, the resolution of 1952 has never been superseded; and second, section 186(8) of the 1959 Act indicates that any tax imposed shall in so far as they are not inconsistent be deemed to have been made under the 1959 Act shall continue in force until they are superseded or modified. There is nothing to show that the tax is inconsistent with the 1959 Act, nor was it argued to be so. For these reasons the contentions of the appellant fail. The appeal is dismissed. There will be no order as to costs. Appeal dismissed.
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1976 (8) TMI 157
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... ... ..... roved beyond doubt against those appellants and they have been rightly convicted. Both the Courts below have applied their mind to the question of giving death sentences and have pointed out that this being the case of a most dastardly, cruel, gruesome and unprovoked murder of two innocent and helpless persons, while they were asleep, death sentence was the only sentence that could be given to them, particularly to Dalbir Singh and Puran Singh. The Trial Court rightly gave life imprisonment to Dalbir Kaur Mst. Bhiro as she was a woman and appears to have played in the hands of her husband. The result is that the appeal of Ajit Singh is allowed and the conviction and sentence imposed on him are hereby set aside. He is acquitted of the charges framed against him and is directed to. be set at liberty immediately. The appeals of Dalbir Singh, Puran Singh and Dalbir Kaur Mst. Bhiro are hereby dismissed and the convictions and sentences imposed on them are affirmed. Appeals partly
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1976 (8) TMI 156
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... ... ..... nt. In view, however, of the fact that neither the Union of India nor the Controller of Mining Leases is a party to the case before us and the aforesaid order dated August 8, 1958 appears to have been passed by tile Controller of Mining Leases with the agree- ment of the parties here.to, we do not consider ourselves called upon to resolve the conflicting contentions advanced before us by counsel for the parties. For the purpose of this appeal, it would suffice to observe that in view of Exhibit 'L' (reproduced at pages 280 to 282 of the Paper Book), the burden of payment of the royalty for the second period also is to be borne by the appellant and the question of his being re-imbursed by the respondent cannot be counte- nanced. The second contention raised by Mr. Patel also, therefore, fails. In the result the appeal fails and is dismissed. In the peculiar circumstances of the case, the parties are left to pay and bear their own costs of the appeal. Appeal dismissed.
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1976 (8) TMI 155
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... ... ..... appellant and 50 on because these facts are not disputed by the appellant at all. On a consideration of the evidence and the circumstances we are satisfied that the appellant has been able to prove that the explanation given by him was both probable.and reason.able judged by the standard of the preponderance of probabilities This being the position, it was for the prosecution to prove affirmatively m what manner the amount was misappropriated after it had been transferred from the custody of the appellant to the custody of the Nazir. Such proof is wholly lacking in this case. As the accused has given a reasonable explanation, the High Court was in error in drawing an adverse inference against him to the effect that he had misappropriated the money. For these reasons, the appeal is allowed, the judgments of the Courts below are set aside, the convictions and sentences imposed on the appellant are quashed and he is acquitted of the charges framed against him. . Appeal allowed.
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1976 (8) TMI 154
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... ... ..... e question of sentence and a consequent opportunity to the prosecution to rebut those materials. The Law Commission was fully aware of this anomaly and it accordingly suggested thus "We are aware that a provision for an opportunity to give evidence in this respect may necessitate an adjournment; and to avoid delay adjournment, for the purpose should, ordinarily be for not more than 14 days. It may be so provided in the relevant clause." It may not be practicable to keep up to the time-limit suggested by the Law Commission with mathematical accuracy but the Courts must be vigilant to exercise proper control over the proceedings so that the trial is not unavoidably or unnecessarily delayed. I, therefore, agree with the order of my learned Bhagwati, J, that the appeal should be allowed on the question of the sentence and the, matter should be sent back to the Trial Court for giving an opportunity to the accused to make a representation regarding the sentence proposed.
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1976 (8) TMI 153
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... ... ..... known in the trade.’’ It is clear from the above report of the Chemical Examiner that ribs and webs are provided on one side of the separator and when they come of the plant, they are rectangular pieces of required length and thickness. They are also microporus. It is understood that the above microporus material issued in lead acid cell as insulation between the plates of batteries. Therefore, the subject PVC Microporous battery separators are manufactured and cleared in cut to exact size and designed for use in the batteries. The above separators which are manufactured and cleared in cut the exact size and which are designed for use in the batteries should, therefore, be treated as articles made of plastic under Item 15A(2) of the Central Excise Tariff. Consequently they will be eligible for exemption from duty under Notification No. 68/71, dated 2-5-1971. In view of the above observations I set aside the order of the Assistant Collector and accept the appeal.
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1976 (8) TMI 152
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... ... ..... he T.V. sets but this is not the position in respect of outer cover or the packing case. Since the appellants have not produced any evidence to show that the expenses of cloth cover and of the packing case can be identified separately, the cost of the entire packing should be included in the assessable value, and I order accordingly. Servicing charges are evidently post manufacturing expenses. The arguments of the Assistant Collector that since the service charges are paid at the time of the purchase of the new set they should be included in the assessable value is not reasonable because whatever charges have to be claimed by the appellants from the wholesale customers, he will claim them only when be sells the T.V. sets to them and not later. Under the circumstances deduction of servicing charges from the wholesale cash price to arrive at the assessable value is allowed. The order of the Assistant Collector is modified as above and the appeal is accepted to the same extent.
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1976 (8) TMI 151
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... ... ..... of Gate Pass No. 104 was made prior to the entry of Gate Pass No. 103. The Supdt, has held that the above action of the appellants amounted to removal of goods before making entry in the P.L.A. and thus they have contravened the provisions of Rule 226 punishable under rules 173 and 226 of the Central Excise Rules. They had adequate balance in their P.L.A and therefore there was no loss of revenue. I observe that the above lapse seems unintentional and therefore does not merit imposition of any fine. I, therefore, set aside the order of the Supdt and accept the appeal.
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1976 (8) TMI 150
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... ... ..... e trade mark is the property of Nestle’s and not of the petitioner. The petitioner could not sell to Nestle’s what was the property of Nestle’s and what was not theirs. It was for Nestle’s to include it in the price at which they sell the products to dealers. The value of the brand name could go into neither manufacturing cost nor manufacturing profit. It was clear post-manufacturing or seller’s profit. Its inclusion in ‘wholesale cash price’ for the purpose of Section 4(a) could be opposed to the basic principles underlying the imposition of excise duty as explained by the Supreme Court. 7. In the result the orders of the Central Excise authorities and the Government of India are quashed in each case and Central Excise authorities are directed to re-assess the values of the excisable articles on the basis of the prices charged by the petitioner to Nestle’s. Excise duty paid will be refunded. There is no order as to costs.
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1976 (8) TMI 149
Does the City of Bangalore Improvement Act, 1945 applying the provisions of the Land Acquisition Act, 1894 to acquisitions of land in Bangalore require the determination of market value, for purposes of awarding compensation, on a date corresponding to the date of notification under Section 4 of the Acquisition Act or to the date corresponding to that of the notification under Section 6 of the Acquisition Act?
Held that:- The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the C.P.C. which require that an Appellate Courts should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27, Order 41, of the C.P.C. we are of opinion that, the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence. The result is that we allow these appeals and set aside the judgment and order of the Karnataka High Court and direct it to decide the cases afresh on evidence on record, so as to determine the market value of the land acquired on the date of the notification under section 16 of the Bangalore Act. It will also decide the question, after affording parties opportunities to lead necessary evidence, whether the judgment, sought to be offered as additional evidence, could be admitted. Appeal allowed.
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1976 (8) TMI 148
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... ... ..... ty Commissioner should have given a personal hearing to the appellant before disposing of the revision. It is argued by the learned Government Pleader that by remitting the matter to the Deputy Commissioner to give a personal hearing to the appellant, the revision may get barred by limitation under sub-section (3) of section 20 of the Act. But, it is not for us to decide that question, for, it does not arise in this case. If that consequence were to follow, the sales tax authorities are themselves to be blamed for it. In the result, I would set aside the order of the learned single judge in Writ Petition No. 7452 of 1973 and quash the order of the Deputy Commissioner of Commercial Taxes, Guntur, made in G.I. No. 4012/67-68 dated 14th September, 1972, and direct him to give a personal hearing to the appellant, if he still chooses to proceed with the revision proceedings. VIMADALAL, J.-I agree. P.C.-Order accordingly. The appeal is allowed. No order as to costs. Appeal allowed.
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1976 (8) TMI 147
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... ... ..... sales tax authorities proceeded on the assumption that biscuit comes under the category of cooked food . In Commissioner of Sales Tax v. Jassu Ram Bakery Dealer 1976 38 S.T.C. 461. (S.T.R. No. 437 of 1973 decided on 2nd August, 1976), we have held that biscuit does not come under the category of cooked food . In the light of the aforesaid ruling, it becomes immaterial for the purpose of the rate of sales tax whether the packets in which biscuits are sold are or are not sealed containers because the benefit of the lower rate of sales tax will not be available to biscuit since it does not come in the category of cooked food . Hence it becomes unnecessary to decide whether the special paper packing, in which the biscuits manufactured by the assessee are sold, can be regarded as sealed containers. In the circumstances, we decline to answer the question referred to us. In the circumstances of the case, there will be no order as to costs in this reference. Reference not answered.
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1976 (8) TMI 146
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... ... ..... the partners of the two firms are identical, which is also the case under consideration, it would really be a case of one person transferring goods to himself. There cannot, therefore, be a sale between them and, in the present case, between the appellants. In view of the above, the appeal is bound to succeed and as such we allow the same and order accordingly after setting aside the judgment impeached and further directing the rule to be made absolute with a direction to issue necessary and appropriate writ or writs to set aside the impugned orders in annexures C, D and E of the petition, with a still further direction on the respondents not to act on the basis of those annexures or to enforce them. There will, however, be no order for costs. We, however, make it clear that this order will not preclude the respondents from proceeding afresh in the matter and in accordance with law and to make a fresh assessment, if they are so advised. SEN, J.-I agree. Ordered accordingly.
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