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1987 (4) TMI 501
... ... ... ... ..... l order, is through the forum prescribed for redressal thereof under that Code itself or under enabling provisions meant for the same under Articles 132 to 136 of the Constitution of India. To conceive of thrashing the issues involved in a judicial order through writ is not tenable on the basis of the jurisprudence followed by settled precedents of the highest Court of the land which my lord has elaborately discussed in the paragraph dealing with the question no. 4. 43. Other questions including that of an order of remand ....... + More
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1987 (4) TMI 500
... ... ... ... ..... the matter has not been duly examined by Mukharji, J. when he made his finding against the appellant. 44. This is how this Court understood how a plea of estoppel based on negligence can be successfully put forward. We have seen that there is no duty for a customer to inform the bank of fraud committed on him, of which he was unaware. Nor can inaction for a reasonably long time in not discovering fraud or irregularity be made a defence to defeat a customer in an action for loss. Thus the contentions put forward by the bank....... + More
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1987 (4) TMI 499
... ... ... ... ..... 7. Having regard to the facts and circumstances of this case we are of the opinion that the learned judge committed serious error in recalling his order dated June 3, 1986 and enlarging the respondent on bail. The occurrence took place, in the broad day light, in a busy market place and there are a number of eye witnesses to support the case against the respondent who was named as an assailant in the First Information Report. Immediately after the occurrence he could not be traced (it was alleged that he had absconded) for....... + More
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1987 (4) TMI 498
... ... ... ... ..... the respondent has submitted that claim for 'process for generation of power from solid carbonised fuels' was refused but this rejection could as well be a bad Civil Court so far as district of Greater Bombay is concerned. Issue answered accordingly. 33. After recording his findings in the affirmative on first two preliminary issues the learned single Judge held that for want of statutory notice under Section 164 of the Co-operative Societies Act, the plaintiff's suit is liable to be dismissed with costs. As in....... + More
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1987 (4) TMI 497
... ... ... ... ..... his Court. If that is so this Court has jurisdiction to entertain these petitions, notwithstanding the Institute and the Panel have their offices at Delhi. (Para 18) This decision does not throw any light on the matter in controversy, because in Karnataka case, the nominations were sent from Bangalore and orders rejecting them were despatched to Bangalore, but in the present case, it appears that the petitioner applied for the post from Indore and received the impugned order of appointment at Indore. The decision, therefor....... + More
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1987 (4) TMI 496
... ... ... ... ..... d has no right to participate in that examination. But his examination in the subsequent trial is for the evidence in the case. Necessarily and naturally the accused has a right to cross-examine him at that stage because without cross-examining and challenging his veracity the evidence cannot be used against the accused. The reference is therefore answered as below (1) In spite of the fact that the approver was examined at that time of tendering the pardon during investigation he will have to be examined again before the M....... + More
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1987 (4) TMI 495
... ... ... ... ..... by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the Court below on its consid....... + More
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1987 (4) TMI 494
... ... ... ... ..... a recommendation or to grant a certificate as the net effect of the aforesaid Government Order dated 30th September, 1982 is that the Sales Tax Officer had no option but to act in accordance with the recommendation of the Joint Director. He could not review the same or examine the whole thing afresh. The result, therefore, is that the impugned order passed by the Sales Tax Officer is clearly without jurisdiction and must be set aside. 6. In the result the petition succeeds and is allowed. The impugned order dated 5th Septe....... + More
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1987 (4) TMI 493
... ... ... ... ..... udgments under appeal. We also approve of the decisions of the High Courts of Madras and Delhi cited above wherein the view has been taken that the benefit of Section 428 of the CrPC cannot be claimed by persons tried and sentenced by the Court-Martial. 15. The decision in Subramanian v. Officer Commanding Armoured Static Workshop (supra) rendered by a learned Single Judge of the High Court of Kerala does not contain any discussion of the relevant provisions of the two concerned statutes and what little reasoning is found ....... + More
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1987 (4) TMI 492
... ... ... ... ..... property. The petitioners also filed an execution application against the respondent for execution of the said decree by committing the respondent to civil prison. The respondent No. 1 filed a revision application being Civil Revision Application No. 1472 of 1979 against the order of the Court of District Munsiff, Gajapatinagaram dated 17.2.1979 passed in Execution Application No. 45 of 1978 filed by the petitioners. 6. From this it is evident that the decree-holder had proceeded against the mortgaged property and also aga....... + More
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1987 (4) TMI 491
... ... ... ... ..... element of arbitrariness is certainly introduced. This must necessarily be avoided if Arts. 14 and 16 have to be given any meaning. We, therefore, consider that insistence of recruitment through employment exchanges advances rather than restricts the rights guaran- teed by Arts. 14 and 16 of the Constitution. The submission that employment exchanges do not reach every-where applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily Press, for example, is also equally ineffective as i....... + More
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1987 (4) TMI 490
... ... ... ... ..... fact the petitioners have applied under section 25-O of the Industrial Disputes Act and that application stood rejected not once but twice and it is only thereafter that they have filed this winding-up petition. In view of the fact that no permission under section 25-O has been obtained by the petitioners and the provisions of the Industrial Disputes Act to prevail over the Companies Act, the company cannot be allowed to be wound up. For this reason also, the petition will have to be dismissed. 54. One further point which ....... + More
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1987 (4) TMI 489
... ... ... ... ..... er such immediate suspension was necessary by reason of the gross misconduct of the Petitioner as required by sub-section (5) of Section 8. We refrain from expressing any opinion as to the seriousness or otherwise of the charge as that is a matter to be enquired into by a departmental proceeding. The fact however remains that there was no response from the Director within the period of 15 days as envisaged by the second proviso to Section 8(4). As a result of this, the impugned order of suspension has lapsed and it is so d....... + More
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1987 (4) TMI 488
... ... ... ... ..... ng within the purview of I, proviso to sub-s. (1) of S. 34 of C.P.C. 18. The cases cited at the Bar have no bearing on the issue with which we are concerned in the present case, since the provisions of the Interest Act in the present form did not come up for consideration. So there is no need to refer to those cases. 19. Further, in view of our conclusion that the defendant is liable to pay interest Linder the Interest Act, 1978, we are of the opinion that it is unnecessary to determine his liability under the Trusts Act. ....... + More
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1987 (4) TMI 487
... ... ... ... ..... g what one must regard ......... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House. of Lords in Suissee Atlantigue Societed Armement Maritime S.A.v.N.V. Rotterdamsche Kolen Centrale, 1967 1 A.C. 361 at 393,412- 413,427-428, 430. Accord....... + More
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1987 (4) TMI 486
... ... ... ... ..... igh Court failed to apreciate that the power to grant a licence for the holding of a hat or fair under s. 117 of the Act necessarily carries with it the power to specify a day on which such hat or fair shall be held. Such power to specify a day must be held to be a power incidental to or consequential upon the principal power of issuing a licence under s. 117 of the Act for holding of a hat or fair. The rules or the absence of it do not detract from the substantive power conferred by a statute. The essence and content of t....... + More
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1987 (4) TMI 485
... ... ... ... ..... High Court and dismiss the writ petition. However, it was represented by learned counsel for the respondent that it is difficult to find a duly qualified person to come and serve as Manager of a mine in rural areas and we should call upon the appellant to find a suitable person for appointment as Manager. Learned counsel for the appellant was however gracious enough to suggest that the Department will find a qualified person and depute him 26 work as Manager, and the respondents shall be liable to pay his salary and allowa....... + More
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1987 (4) TMI 484
... ... ... ... ..... to s. 30 of the Advocates Act, 1961 and s. 14 of the Indian Bar Councils Act. It was said that the State Legislature was not competent to make a law repugnant to laws made by Parliament pursuant to Entries 77 and 78 of List 1 of the 7th Schedule of the Constitution. The submission of the learned counsel is fully supported by the judgment of a Full Bench of High Court of Punjab and Haryana in Jaswant Kaur v. State of Haryana, AIR 1977 Punjab Haryana 22 1. We adopt the reasoning of the High Court of Punjab Haryana and direct....... + More
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1987 (4) TMI 483
... ... ... ... ..... he debt itself arises or becomes due and payable by the debtor only on the respective dates fixed for the instalments the stipulation that on default being made in the payment of any instalment the whole of the balance should become due and payable would be in the nature of a penalty. We agree with the law so laid down by the full Bench. The result is that the appeal has to be allowed. Accordingly, we set aside the Judgment of the High Court and allow this appeal but in the circumstances of the case, without costs. Special....... + More
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1987 (4) TMI 482
... ... ... ... ..... sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit a....... + More