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1984 (3) TMI 443
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... ... ..... erhaps result in the dismissal of other petitions too a word of caution would not be out of place. We hope that this will be taken in the right spirit. 21. The counsel for the petitioner makes an oral application under Article 134(1)(c) read with Article 134A of the Constitution for leave to appeal to the Supreme Court of India. We find that there is a substantial question of law of general importance calling for decision by the Supreme Court arising in this case. We need not reiterate the reasons why we have been persuaded to grant the leave as the judgment itself indicates why we consider that the matter requires examination by the Supreme Court and that the contentions raised before us can appropriately be noticed only by the Supreme Court. Hence leave to appeal to the Supreme Court granted. 22. The interim relief granted under order dt. 22.11.1983 will continue for a period of four weeks from today in order to enable the petitioner to obtain relief from the Supreme Court.
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1984 (3) TMI 442
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... ... ..... the Corporation to claim contributions on the payment made to the directors of the company, I find that the Court below is correct. A reading of the definition of the principal employer contained in S. 2(17) shows that it means the owner or occupier of the factory and it includes the managing agent or any other persons responsible for supervision and control of the establishment. The work of a limited company is carried on by the directors and managing directors and, therefore, they would come within the definition of the "principal employer" and cannot be termed as the "employee" within the meaning of S. 2(9). Therefore, the payment made to the directors could not form the basis for assessing the contributions. Both the Courts below were perfectly justified in excluding the contributions regarding the directors' emoluments. 7. For the reasons recorded the appeal and the cross-objections are devoid of merits and are dismissed with no order as to costs.
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1984 (3) TMI 441
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... ... ..... employer for 26 months which he was bound to pay and credit to the said Fund irrespective of the fact that actually the employer did not credit the said amount to the fund because in such a situation it is deemed to have been credited to the account of the employee in the said Fund. The petition is, therefore, allowed with costs. The respondents are directed to pay the amount from the existing Fund to the petitioner for the aforesaid period referred to above within three months from today as in the case of a social and economic legislation of this type which affects thousands of labourers of this type the respondents cannot shirk their responsibility to evade payment on the basis of the stand taken by them as it is for the respondents to remove the difficulty, if any, to meet the situation like this in accordance with the provisions of the said Act. Counsel's fee ₹ 200. The amount of security deposit of ₹ 150 be refunded to the petitioner on due verification.
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1984 (3) TMI 440
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... ... ..... th or without surety, as the case may be, binding the accused not only to appear as and when required before him but also to appear when called upon in the Court of Session. Mr. K.G. Bhagat on behalf of the State of Bihar also agrees that this is a procedure which can be legitimately followed by the Magistrates. We hope and trust that hereafter this procedure will be followed by the Magistrates unless there are any particular reasons for not doing so. 8. It is, thus, patent in the light of the discussion above that the decision in Ram Lai's case (1976 Chand LR (Cri) 388) (Punj & Har) (supra) that the jurisdiction Under Section 438(1), Cr.P.C. can be exercised only till an order is passed by a Magistrate choosing to summon an accused through bailable or non- bailable warrant and not thereafter too deserves to be overruled and we order accordingly. 9. Thus, with the observations made above we dismiss this petition as infructuous. Prem Chand Jain, Actg. C.J. 10. I agree.
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1984 (3) TMI 439
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... ... ..... rea in which any place of business of the firm is situated or proposed to be situated, a statement in the prescribed form and accompanied by the prescribed fee" and containing the particulars mentioned in the said section signed by all the partners or their agents with verification 'of the signatures in the prescribed manner. As per Sections 59, the Registrar shall record an entry of the statement in a register called the register of firms, and shall file the statement on his satisfaction that the provisions of Sections 58 have been duly complied with. A company being a " person " within the meaning of Sections 4 of the Indian Partnership Act, registration cannot be declined for the reason of its being a partner of the firm. I, therefore, quash exhibit P-8 and the endorsement by the respondent on exhibit P-9 and direct the respondent to register the firm as applied for as per exhibit P-4. The original petition is allowed. There will be no order as to costs.
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1984 (3) TMI 438
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... ... ..... on whose statements the Government wants to rely, should be given to him. The request made by the petitioner was refused, and the respondent No. 2 straightway passed the impugned order. This being the position in our view the present case is whole covered by the division bench decision of this Court in Madhukar Babaraoji Dhote's case. 4. So for as the grievance made by the petitioner about his compulsory retirement under Rule 161 is concerned, the said challenge has become infructuous and therefore was not rightly pressed before us. 5. In the result therefore, the Rule is made partly absolute. The order passed by the Chief Executive Officer, Zilla Parishad, Ahmednagar dated 7-11-1979 is set aside and the Respondents are directed to treat the suspension period of the petitioner as being the period spent on duty and pay him full pay and allowances for such period as if he had not been suspended. However, in the circumstances of the case there will be no orders as to costs.
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1984 (3) TMI 437
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... ... ..... f India, 1958 1SCR781 which was a case in which two motor trucks which were hired to the Defence Department for imparting tuition to the military personnel were not returned to the owners. The owners had claimed the price of the trucks as well as the rental charges at the rate of ₹ 17/- per day. The case of Dhian Singh was one of conversion by bailee which is not the case here. It is nobody's contention that the cylinders in which the gas was supplied were not returned to the supplier. The second distinguishing feature is that the claim was decreed at the agreed rate of ₹ 17/- per day by way of hire charges and not at any higher rate as is being claimed by the plaintiff in the facts of the above case. 9. In these premises, the Appeal succeeds and setting aside the order of the learned II Joint Civil Judge, S.D. Poona, I order that the suit is dismissed, but in the circumstances of the case the parties should bear their own respective costs. 10. Appeal allowed.
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1984 (3) TMI 436
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... ... ..... prevent the Central Bank from honouring its obligation to pay by an order of injunction merely because an allegation of fraud has been made. If such practice is allowed to develop, the opening of irrevocable letter of credit will become meaningless and trust in international commerce and banking would be irreparably damaged. 52. In our opinion, in the facts of this case there is not the slightest ground for withholding the payment to the United Commercial Bank. The interim injunction passed by the Court below must be vacated. 53. The appeal is allowed. The order under appeal dated 9th July, 1983 is set aside. 54. The appeal and the application are disposed of on the above terms. The Respondent No. 1, in the facts of this case, must pay the appellant the costs of this appeal. 55. The undertaking given by the Advocate-on-Record for the appellant to file the Paper Book is discharged. 56. The prayer for stay of operation of this order is refused. Satish Chandra, C.J. 57. I agree.
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1984 (3) TMI 435
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... ... ..... hey were entitled to be taken in as partners in place of the deceased partners as partners in the firm. Therefore, the question to be answered is whether on the death of two of the proper or formal parties impleaded in their capacity as partners by the plaintiff along with the firm, in absence of substitution of heirs and legal representatives the appeal abates? The answer is in the negative. Therefore, the question of substituting heirs and legal representatives of the two proper formal parties does not arise and the death has no impact on the proceeding. The appeal cannot abate. Therefore, the High Court was in error in disposing of the appeal as having abated. 11. Accordingly, this appeal succeeds and is allowed. The order of the High Court disposing of the appeal as having abated is quashed and set aside and the matter is remitted to the High Court for disposal of the second appeal on merits according to law. The respondent shall pay the cost of hearing to the appellant.
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1984 (3) TMI 434
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... ... ..... ed Counsel for the opponents has raised objections about the maintainability of the revision application on the grounds that (1) there is no case decided and that (2) the trial Court has neither admitted nor rejected any evidence at this stage and admissibility or otherwise of a document even if decided would not be a case decided or even a part of the case decided because no rights and liabilities of the parties are decided It was also pointed out that there was no error of jurisdiction and no material irregularity and no failure of justice or irreparable injuries caused to the petitioners by the impunged order and hence the High Court ought not to entertain and interfere in the revision application. In view of my conclusion that no interference is called for in the present case, it is not necessary to deal with the objections. 21. In the result the revision application fails and is dismissed with costs want of publication in Gujarati in a newspaper. 22. Revision dismissed.
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1984 (3) TMI 433
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... ... ..... nature of the breach, public danger to be avoided, and other similar circumstances which warrant an immediate action where it is not feasible or possible or even advisable to give an opportunity to the holders of the licences before passing interim orders of suspension. 44. Hence we answer the reference holding that the licencing authority has got ancillary and incidental powers of suspending a licence or permit pending enquiry in a given case if the circumstances clearly warrant and taking into account the urgency in the case. In the result, all these writ petitions where the interim order of suspension is challenged are liable to be dismissed and accordingly they are dismissed without costs. Advocate's fee ₹ 250/- in each. (Order of The Full Bench Delivered By The Hon'ble The Chief Justice) In view of the Majority opinion, the writ petitions and the writ appeal stand dismissed, but, in the circumstances without costs. Advocates' fee ₹ 250/- in each.
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1984 (3) TMI 432
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... ... ..... machines, if such a process is not permissible or authorised by law he cannot be estopped from challenging the same. 39. For the reasons given above, we allow the appeal, set aside the election of the respondent with respect to the 50 polling stations where the voting machines were used and we direct a repoll to be held in these 50 polling stations. We, however, do not touch or disturb the results of the votes secured in the other 34 polling stations which was done in accordance with law, viz., the use of ballot papers. After the repoll, the result of the election would be announced afresh after taking into account the votes already secured by the candidates, including the Respondent. We make no order as to costs. 40. In course of argument, Mr. Sen for the Commission informed us that at eleven elections held under the Act, the mechanical device was used and in nine, no challenge has been raised. It follows that our judgment will not affect those nine elections in any manner.
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1984 (3) TMI 431
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... ... ..... e High Court of Kerala in Nani Anima Nannini Amma v. State of Kerala. A.I.R. 1969 Ker 114 Therein the learned Judge has expressed the view that Section 80 is not a provision of public policy and there is nothing in the Section expressly affecting the jurisdiction of the Court to try a suit instituted before the expiry of the period prescribed therein. The reasons stated by the learned Judge in justification of his taking the said view despite the clear pronouncement of the Judicial Committee of the Privy Council in Bhagchand's case do not appeal to us as correct or sound. In the light of the conclusion expressed by us in the fore going paragraphs about the true scope and effect of Section 80 C.P.C., the afforested decision of the learned Single Judge of the Kerala High Court cannot be accepted as laying down good law. 10. In the result, we confirm the judgment and decree of the High Court and dismiss this appeal. The parties will bear the respective costs in this appeal.
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1984 (3) TMI 430
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... ... ..... rned Trial Judge was justified in refusing interim relief. The learned appellate Judge has dismissed the appeal of the plaintiff on erroneous ground. However, if there is no failure of justice, there is no reason to interfere in view of proviso (b) of Section 115(1) of the C.P.C. 7. In the result, the order passed by the learned District Judge in appeal directing the trial Court to deal with the suit as per the proviso to Sub-section 2 of Section 80 is quashed and set aside. However, the order dismissing the appeal is confirmed although on different ground. Thus, the revision partly succeeds and the rule is made absolute regarding the direction to deal with the suit as per proviso to Sub-section (2) of Section 80 and the rule is discharged as regards the injunction application Ex. 8 which shall stand dismissed. 8. The interim relief granted by this Court in this revision application will continue till 31-5-1984 and the impugned order of transfer will take effect from 1-6-84.
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1984 (3) TMI 429
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... ... ..... than that of the defendant-Sabha and, therefore, I am unable to agree with the learned appellants' counsel that simply because the appellants are in possession of the suit property they are entitled to a decree for injunction against the defendant. The observation of the Supreme Court in the case of Mohan Lal 1971 PLJ 338 (Supra) relied upon by the learned appellants' counsel cannot be read contrary to the observations of the same Court in the later judgment in the case of M. K. Setty (Air 1972 SC 2299) (Supra) and it is not possible to hold that the intention of the Supreme Court in making the aforesaid observations in the case of Mohan Lal 1971 PLF. 338 (Supra) was to approve the granting of relief of injunction in favour of a plaintiff on the strength of his possession even against those persons who have better title than he to the suit property. 10. For all the aforesaid reasons I find no merit in this appeal and dismiss the same with costs. 11. Appeal dismissed.
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1984 (3) TMI 428
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... ... ..... ad deducted a sum of ₹ 90/- from the amount of ₹ 1500/- which was to be advanced to the defendant. Further, on the plaintiff's own statement made in the cross-examination, it was his practice not to charge any interest to the debtor at all. If that was so, then until the date of the suit he was not entitled to any interest on the sum of ₹ 1410/- advanced by him to the defendant. 13. The position would, however, be different from the date of the suit. From the date of the suit, the defendant would be duty bound to pay interest to the plaintiff at a reasonable rate. To my mind, in the instant case only 9 percent would be quite reasonable. From the date of the suit onwards, the defendant shall have to pay interest on ₹ 1410/- at the rate of 9 per annum till the date of payment. 14. The Rule is made absolute. The defendant shall pay to the plaintiff the costs of the suit. There shall be no order as to costs so far as the present petition is concerned.
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1984 (3) TMI 427
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... ... ..... basis of price fixation is to be accepted in the generality of cases as valid. Some of the appellants have endeavored to persuade us to go into the minutest details of the mechanism of the tariff fixation effected by the Board in an endeavour to demonstrate in relation thereto that a factor here or a factor there which ought to have been taken into account has been ignored. We have declined to go into those factors which are really in the nature of matters of price fixation policy and the Court will be exceeding its jurisdiction if it to embark upon a scrutiny of matters of this kind which are essentially in the domain of the executive to determine, subject, of course, to the Constitutional limitations. The conclusion that emerges from the foregoing discussion is that the High Court was perfectly right in upholding the validity of the impugned tariff notifications of 1979 and 1981, and these appeals and the S.L.P. have only to be dismissed. Petitions & Appeals Dismissed
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1984 (3) TMI 426
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... ... ..... ovisions of the Forest Act and not with a Magistrate in exercise of his powers under the provisions of the Criminal P. C. That apart, the vehicle in question in the present case has not been produced before any Magistrate, and, therefore, in terms, (sic) Section 452 of the Code deals with the power of the Magistrate to dispose of the property at the conclusion of trial and, therefore, that stage has also not reached in this case. The only other provision is the general provision provided in Section 457. That also in terms will have no application when the property in question has not been seized by a police officer in this case but by a forest officer. Consequently, there is no provision in the Code which could give jurisdiction to a Magistrate to exercise his powers for disposal of the seized property, 9. In the result, therefore, the order of the Sub-Divisional Judicial Magistrate, Khurda, dated 24-8-1983 is unassailable and this criminal revision is accordingly dismissed.
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1984 (3) TMI 425
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... ... ..... uphold the award and not to reject it. We consider it unnecessary to dilate upon it. The discussion leads to the inescapable conclusion that a specific question of law touching the jurisdiction of the arbitrator was specifically referred to the arbitrator and therefore the arbitrator decision is binding on the parties and the award cannot be set aside on the sole ground that there was an error of law apparent on the face of the award. It is also established that the claim for compensation made by the arbitrator which led to the dispute was covered by the arbitration clause. The quantum of compensation awarded by the arbitrator was never disputed nor questioned. Therefore, the High Court was clearly in error reversing the decision of the trial court. Accordingly this appeal succeeds and is allowed and the Judgment of the High Court is set aside and the Judgment and order of the Subordinate Judge, Ernakulam dated March 30, 1979 is restored with costs throughout Appeal allowed.
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1984 (3) TMI 424
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... ... ..... f the learned Subordinate Judge. The appeal must, therefore, be allowed. We however record that in view of the fact that such a long time has elapsed and further in view of the fact that principal amount together with interest amounting to about ₹ 85,000/- have already been paid to the wife of the deceased and his children, the Life insurance Corporation in this case does not insist on the full repayment of the sum paid and counsel on behalf of the Life Insurance Corporation has stated that they would accept if half of what has been received by the respondents, namely principal together with interest is paid back to the Corporation. We order accordingly that the respondents will therefore pay back half of the actual amount received both of the principal together with interest within three months from this date. In the facts and circumstances of the case there will be no order as to costs in this Court. With the above observations, the appeal is allowed. Appeal allowed.
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