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Case Laws
Showing 61 to 80 of 293 Records
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1988 (3) TMI 399
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... entures, will be to issue a new class of shares with preferential rights over the existing ones. The preference shares are really part of the company s share capital they are not loans . Relying upon the last sentence in the above extract, Mr. V. Rajagopal Reddy contends that preference shares are really part of the company s share capital, and that they are not, and do not become loans, in any case. Mr. Rajagopal Reddy also relies upon an unreported decision of Ramanujulu Naidu J. in Company Petition No. 28 of 1986, disposed of on February 11, 1987. On perusing the said decision, however, I do not find that the question now arising before me was either considered or pronounced upon in the said judgment. It is, therefore, unnecessary for me to refer to the said judgment in any detail. Having regard to the opinion expressed hereinabove, the petition must be held to be not maintainable in law. The company petition is, accordingly, dismissed. There shall be no order as to costs.
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1988 (3) TMI 391
Winding up - Dissolution of company ... ... ... ... ..... to effectively determine as to whether and to what extent the land, now in the tenancy of the State, has been trespassed upon by the defendant and even if it has been trespassed upon, whether such trespass has already been adverse to or has amounted to an ouster of the plaintiff-landlords or has otherwise adversely affected them to entitle them to sue the defendant for the recovery of the land, which now stands tenanted to the State, during the subsistence of that tenancy. The suit, therefore, could not proceed without the State as a party defendant and must, therefore, fail in any view of the matter and the courts below were right in dismissing the same. We would, accordingly, dismiss this appeal and affirm the decisions of the courts below but we would do so without any order as to costs. There was a cross-objection preferred by the respondent, but since that was not pressed at any stage during the hearing, the same also stands dismissed. Ajit Kumar Nayak, J. mdash I agree.
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1988 (3) TMI 390
Circumstances in which a company may be wound up, Winding up - Company when deemed unable to pay its debts
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1988 (3) TMI 389
Company – Membership of, Oppression and Mismanagement – Right to apply under section 397 and 398
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1988 (3) TMI 371
Company when deemed unable to pay its debts ... ... ... ... ..... . I am also unable to accept that merely because the petitioners did not club this claim in their summary suit filed in Bombay, it can have any impact on the present petition or for that matter on the motion for attachment which was lost. It requires no reiteration that matters relating to attachment before judgment stand on different footing. Since Mr. Usgaonkar insisted that the respondent company wants to file a suit for recovering their claim against the petitioners, all that I can do is to stay the advertisement of this petition for 3 months in order to enable the respondent company to establish their bona fides. The respondent company is to deposit a sum of Rs. 10 lakhs on or before June 30, 1988, in this court and adopt in the meantime any proceedings they want against the petitioners. In the event Rs. 10 lakhs are not deposited before June 30, 1988, this petition be advertised. Petition accordingly to be on board immediately after June 30, 1988. Rule accordingly made.
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1988 (3) TMI 370
Whether there exist sufficient grounds for proceeding with the case?
Held that:- Once the order of the High Court is vacated, the order of the learned Magistrate would revive and the prosecution as directed by the learned Magistrate has now to continue. We accordingly direct the case to be closed against respondent No. 2 without further delay. Ordinarily, in a criminal case of this type, there would have been no order for costs. But, keeping in view the background of the case, the manner in which respondent No. 2 has behaved and the fact that he is squarely responsible for delaying the proceedings by reiterating the same contention twice over, we are of the definite opinion that respondent No. 2 should be made to suffer exemplary costs. We accordingly direct that he shall be called upon to pay a sum of Rs. 10,000 by way of costs and the said amount is to be deposited in the trial court within one month hence, failing which the trial court shall have a direction to recover the same as fine and pay the amount to the complainant. Compliance shall be reported to the registry of this court.
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1988 (3) TMI 369
Winding up - Powers of liquidator ... ... ... ... ..... an make such direction for the purpose of getting an adequate price for the properties belonging to the company in liquidation. Correctly in this case, the court after appreciating the glaring discrepancy that occurred while the appellant offered the price at the first instance and also taking into consideration the subsequent offers, thought it fit to pass the order now questioned by the appellant. Such an order, in our view, is within the powers conferred upon the company court both under the Companies Act and also under the Companies (Court) Rules. 1959. We are in complete agreement with the reasoning and direction given by the learned judge of this court and accordingly this O. J. appeal is dismissed. Mr. Shah prayed for stay of this order. We do not think that this is a fit case in which we can grant a stay. It is always open to the appellant to bid at the auction and compete with the other bidders. Hence, the stay prayed for is refused. No orders on C. A. No. 5 of 1988.
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1988 (3) TMI 352
... ...
... ... ..... d could have been called to be defective and seconds and defectives and seconds do not qualify to be classified as scrap. On the issue of classification, we confirm the findings of the lower authorities. We very respectfully, follow the judgment of Hon rsquo ble Delhi High Court in the case of Super Traders and another v. Union of India and others reported in 1983 (12) E.L.T. 258 (Del.). Keeping in view the totality of the circumstances we confirm the findings of the lower authorities. To meet the ends of justice, we further reduce the fines in lieu of confiscations against Bill of Entry No. 1603/100 of22-12-1979 and 1821/57 of 20-2-1980 from Rs. 47,000/- and Rs. 16,000/- to Rs. 35,000/- (Rupees thirtyfive thousand only) and Rs. 10,000/- (Rupees ten thousand only) respectively. In the result the appellant is entitled to a relief of Rs. 12,000/- Rs. 6.000/- totaling Rs. 18,000/- (Rupees eighteen thousand only). Except for this modification in the order, the appeal is rejected.
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1988 (3) TMI 351
Import - Misdeclaration of description of goods ... ... ... ... ..... ue of the exhaust system was not specifically excluded from the assessable value. We are unable to give any relief on this account as the appellants have not stated actual value of this part. However, we note that while arriving at the differential value the customs took the value of the entire plant which would be less than the total of the values of various components parts thereof put together. Therefore the appellants could not have been put to loss on this account. The Collector rsquo s and Board rsquo s observations with regard to valuation have not been dis-approved before us. We therefore reject the submissions made in this regard also. 9. As a result we hold that the confiscation of the goods and upward revision of the value was correctly done. However having regard to our observations regarding the licence we order a reduction in the fine from Rs. 20,000 to Rs. 10,000 only. We further order that the penalty be reduced to Rs. 10,000. The appeal is otherwise rejected.
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1988 (3) TMI 350
Gold (Control)- Confiscations ... ... ... ... ..... ific finding as to the ownership of the seized gold, since he had accepted the declaration of the wife made before the Gold Control authorities at Calcutta, the inference to be drawn is that the Collector had accepted the wife rsquo s claim viz. that the gold belonged to her and that it was her streedhana property. Therefore, even if the appellant was considered as the person in possession of or control over the seized gold and even if the appellant had not made any declaration relation to the seized gold, the Collector cannot order confiscation since the ownership of the seized gold did not belong to the appellant. At best he could have imposed some other punishment contemplated under the Act. The Collector, however, did not choose to impose any other punishment. 14. In view of my above findings, I allow this appeal, set aside the order of confiscation, consequently the fine levied in lieu of confiscation and direct that the fine, if paid, shall be refunded to the appellant.
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1988 (3) TMI 349
Confiscation, redemption fine and penalty ... ... ... ... ..... ding to the Department Kiran Kumar was merely carrying gold ornaments and the vouchers handed over to him by his father and he cannot be called even an abettor to the commission of any offence in the facts and circumstances of this case. No charge of contravention under any of the provisions of the Act has been clearly set out as against him even in the show cause notice. We, therefore, give him the benefit of doubt and exonerate him and allow his appeal G/357/87. 13. The appeal of appellant Hirachand in G/358/87 has been made by him only as a claimant in regard to the primary gold and ornaments seized from his residential premises. We have already held that the primary gold and ornaments seized from the residential premises of Hirachand, who is the Power of Attorney of Ratan Jewellers, belonged to the stock in trade of appellant Ratan Jewellers. We, therefore, negative the claim of appellant Hirachand and dismiss his appeal. 14. The appeals have been accordingly disposed of.
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1988 (3) TMI 344
Consultant like an Advocate empowered to plead guilty on behalf of client ... ... ... ... ..... . Apart from all other things, the scope of the Reference Application is only with reference to a question of law arising out of the impugned order of the Tribunal and in the present case when a person has pleaded guilty to the charge and the same has been recorded in the open court and order was passed, no question of law would arise particularly on the ground that the plea of guilty urged by the learned Consultant is not legally tenable and would give rise to a question of law. The learned Counsel submitted that it is open to an Advocate to put forth a plea of guilty and the same would be valid. We are not able to see how a Consultant could be differentiated from an Advocate more so when both are entitled to hold a brief and put forth pleas before a quasi-judicial statutory Tribunal. We, therefore, do not find any question of law arising at all in the circumstances much less one out of the impugned order of the Tribunal and we, therefore, dismiss the Reference Applications.
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1988 (3) TMI 341
Value of clearances ... ... ... ... ..... enced operations they utilised the same machinery, it being claimed that they had moved the said machinery to the portion leased to them. 6. emsp Taking into consideration the fact that till M/s. Bhavana Apparells commenced manufacture, the factory was one and even after the lease the alteration of the licensed premises was not approved and the further fact that the same machinery had been used by both, we are satisfied that the factory was one throughout the year, though the manufacturing activity may have been carried on by the two appellants during separate periods (as had been accepted by the lower authorities also). 7. emsp In the circumstances the lower authorities were correct in concluding that in view of proviso (ii) to the notification the benefit of exemption was available for a total sum of Rs. 5 lakhs only, and not to Rs. 5 lakhs individually to each of the appellants. 8. In this view the orders of the lower authorities are upheld and these appeals are dismissed.
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1988 (3) TMI 340
... ...
... ... ..... , would be entitled to prefer an appeal to this Tribunal. That would indicate that in respect of matters pending before the Executive Collector under Section 35A (as it then stood) the Collector would be entitled to continue the proceeding and pass an order even after the appointed day (11-10-1982). Therefore, the jurisdiction of Collector to pass an order under Section 35A (by way of revision) would continue even after 11-10-1982, provided the proceeding had been initiated before that day. In the circumstances we feel that even though under Section 35A as it now stands the Executive Collector has no powers of revision he would, in the present instance, exercise the said power since the proceedings in revision had commenced before him before the appointed date. 6. ensp Accordingly this appeal is allowed, the order dated 14-10-1980 of the Collector of Central Excise, Shillong is set aside and the matter is remitted to him for readjudication and disposal in accordance with law.
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1988 (3) TMI 335
... ...
... ... ..... tantiate it. Merely because the imports are purported to relate to the same order placed on the suppliers is no conclusive evidence of the identity of the goods actually imported, when the description in the Bill of Entry itself is a different. In fact, it is not explained why the same supplier should describe differently identical goods sent in separate consignments. What is more, the importers here should have been fully aware of what the goods were and if in respect of other lots of imports, the benefit of the relevant Notification was extended to them, they should have been aware and made a similar claim of benefit before the goods were cleared by them in this case. In view of the fact that the claim was made after the goods had passed out of Customs control, there were no means left with the Department to undertake any further verification. 5. We, therefore, see no reason to interfere with the orders of the lower authorities, which are upheld and the appeal is dismissed.
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1988 (3) TMI 334
Detention order ... ... ... ... ..... satisfaction of the detaining authority has been brought about in a rather casual manner. The detaining authority has only referred to the statement of the detenu recorded under Section 108 of the Customs Act without verifying the correctness thereof in any manner even when documents were easily available. Indeed, in the instant case, the plea regarding travelling under the false passport was required to be confirmed by reference to the passport seized by the D.R.I. authorities. The fact of previous involvement is also found to have not been properly checked. If all this had been properly checked, the order made by the detaining authority would not have laid open to criticism, namely, that it has been passed in a casual and careless manner and without proper application of mind. However, once we come to the above conclusion, Rule is required to be made absolute. Order accordingly. The detenu to be set at liberty forthwith unless required in connection with some other matter.
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1988 (3) TMI 333
Appeal - Condonation of delay - ... ... ... ... ..... ll to be decided only under Section 5 without reference to Section 14. The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that would be treated as sufficient cause and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not. 5. Keeping in view the observation of the Hon rsquo ble Supreme Court and earlier judgment of the Tribunal, we do not find any justification in condoning the delay. We hold that the applicant was not prevented by sufficient cause in the late filing of the appeal. The delay is of 37 days. Applicant rsquo s request for Condonation of delay is, therefore, rejected. 6. Since we have rejected the applicant rsquo s request for condonation of delay, the appeal filed by the appellants is also dismissed being hit by limitation without going into the merits of the same.
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1988 (3) TMI 326
Less charge demand - limitation ... ... ... ... ..... o into the date of actual service. 5. Regarding the date of service the respondents had produced before the Collector (Appeals) the entry in their Inward Register and have filed before us a photostat copy of the demand containing therein their seal with the date and, evidently, the number assigned in the Inward Register. It was open to the Appellant-Collector to have produced proof of the actual date of service, either by producing the postal acknowledgement, if available, or a certificate from the postal authorities regarding the date of service. In the absence of either we see no reason not to accept this evidence for the respondents that they had received the notice on 4-1-1982 only. That would mean that even if the date of payment of duty was 1-7-1981 (as claimed for the department) and not 29-6-1981 (as claimed by the respondents) the demand was served beyond the six months period mentioned under Section 28 of the Customs Act. 6. In the above view we dismiss this appeal.
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1988 (3) TMI 325
Samples - Cotton yarn ... ... ... ... ..... would show that they had evidently done so with reference to the rule which provided for such a right. It is difficult to accept the argument that a concern like M/s. Mettur Beardsell Ltd., were unaware of the provisions of the rule. 6. It is for this reason that we are of opinion that it is unnecessary to go into the question whether the request for retest could be made even after the expiry of 90 days and, for proper reasons, granted, though made after the expiry of 90 days. On the facts of this case we hold that even if such a plea is to be accepted it would be of no avail to the appellants for the reason stated earlier. 7. We accordingly reject the contention of the appellants that the orders of the lower authorities are to be set aside merely on the ground that the request for retest was not granted. As earlier mentioned, Shri Saini stated that he was not urging any other ground. 8. The orders of the lower authorities are accordingly upheld and this appeal is dismissed.
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1988 (3) TMI 324
Writ petition ... ... ... ... ..... ary 1988 at Exhibit lsquo C rsquo , the said order shall stand stayed. The said stay will operate throughout the pendency of the appeal and for a period of sixty days after service of the Tribunal rsquo s order upon the petitioners. (b) If the subsisting gold dealer rsquo s licence in favour of the petitioners expires during the pendency of the appeal, the same shall be renewed from time to time by the concerned authority till the hearing and final disposal of the aforesaid appeal by the Tribunal and for a period of sixty days after the disposal thereof. This renewal to be on all usual terms and conditions. (c) Challenge to the validity and constitutionality of Section 50(1A) of the Gold Control Act is left open. (d) In the event of the Tribunal rsquo s order in appeal going against and/or adversely affecting the petitioners, they will, of course, be at liberty to proceed against the same in accordance with law. 7. Order accordingly on this petition which is thus disposed of.
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