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Showing 1 to 20 of 242 Records
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1993 (4) TMI 338
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... ... ..... that the Legislature has not included the word 'profession' along with the, words "industry, trade and business" to specify the "commercial transaction" cannot be ignored .The proviso to Section 34, C.P.C. will, therefore, not govern the cases where the loan is advanced for the 'profession' or for "professional transactions". 21. In our opinion, the words "commercial transaction" do not include the "profession" or "professional transaction." 22. We, therefore, find that the learned trial Judge was right in holding in the absence of any evidence to that effect that the present loan is a professional loan, and cannot be termed as a commercial transaction. Awarding future interest at the rate of 6 p.c. p.a. cannot be said to be in contravention of the provisions of Section 34, C.P.C. 23. In the result, the appeal fails and the same is dismissed. There shall be no order as to costs. 24. Appeal dismissed.
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1993 (4) TMI 337
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... ... ..... ad differed and the case could be heard on that point only by another Judge. It is obvious that hearing by another Judge is confined to the specific points stated and cannot cover the whole case again. But the order of reference in this case states that the papers may be laid before Hon'ble the Chief Justice and he may designate a third Judge to hear the matter. The learned Judges ought to have stated explicitly as to what was to be decided by a third Judge. The expression 'matter' used in the reference has not been clarified as to the points to be decided by the third Judge; especially in the facts and circumstances of this case and in view of the stand taken by Mr. Bansal. In the absence of the clarification it is not possible to answer the reference. 13. In view of my above reasoning, this Bench must return the reference unanswered and without any finding. The papers may be laid before Hon'ble the Chief Justice for appropriate orders. 14. Order accordingly.
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1993 (4) TMI 336
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... ... ..... me Court in 1982 Sc 1297, regarding the judicial recognition of margin of error of 2 years, I would prefer the testimony of the parents of Ishwar Singh, and say that Ishwar Singh was a "child" to whom the Children Act, 1960 applied, at the time of commission of the crime. (39) At the time of commission of the crime, the petitioner being a child, was entitled to be tried in accordance with the provisions of the Children Act 1960, and not according to the provisions of the Criminal Procedure Code. (40) In this view of the matter, the petitioner, in my view, has been denied the personal liberty by a procedure which is not prescribed by law, in the instant case the Children Act, 1960. (41) There being a violation of the Constitution, prohibition contained in Article 21 of the Constitution, the petitioner is entitled to the writ of habeas corpus, and accordingly I would issue a writ of habeas corpus, directing that the petitioner Ishwar Singh be set at liberty forthwith.
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1993 (4) TMI 335
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... ... ..... oceedings pending on the date of the commencement of the Act and the provisions were held applicable to an appeal that was pending in this Court. In view of the said decision it must be held that the defence raised by the contesting respondents that the trans action of sale under the sale deed dated October 9, 1957 executed in favour of the appellants was a benami transaction is prohibited in view of Section 4(2) of the Act. Since the suit of the appellants has been dismissed by the High Court on the view that the said transaction was a benami transaction, the said judgment of the High Court cannot be upheld and must be set aside and the decree of the lower appellate Court decreeing the suit of the appellant must be restored. 7. The appeal is, therefore, allowed, the judgment and order of the High Court dated February 11, 1987 in Second Appeal No. 1135/81 is set aside and that of the lower appellate Court decreeing the suit of the appellants is restored. No order as to costs.
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1993 (4) TMI 334
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... ... ..... IR 1986 SC 1773), V.K. Agrawal vs. Vasantraj (AIR 1988 SC 1106) and K.K. Tiwari vs. S.P. (CBI), (1989 RCC 249). 15. As stated earlier, the petitioner is in Jail for the last 35 months or so. The delay in the trial was not at his fault. If the trial is not completed within 35 months then I have been left with no option but to release the petitioner on bail. 16. Consequently, it is ordered that the accused-petitioner Sita Ram S/o. Hira Lal shall be released on bail, provided he furnishes a personal bond in the sum of ₹ 10.,000/- (Rs. Ten thousand) with two sureties in the sum of ₹ 5,000/- each to the satisfaction of the trial Court, with stipulation to appear in that court or any other court on all the dates of hearing and as when called upon to do so during the pendency of the trial against him in this case. 17. A copy of this order be sent to the Advisor to the Governor dealing with Law & Justice Department, and Director General of Police for follow up action.
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1993 (4) TMI 333
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... ... ..... second contention raised by learned counsel for the petitioners is found in section 325 of the Criminal Procedure Code. In terms of sub-section (1) of section 325 of the Criminal Procedure Code, whenever a Magistrate is of the opinion that the accused is guilty and that he ought to receive a punishment more severe than such as a Magistrate is empowered to give, he may record his opinion and forward the accused to the Chief Metropolitan Magistrate to whom he is subordinate. In view of this, I find no merit in this contention also. 7. As regards the third contention, learned counsel for the petitioners could not point out any prejudice to be caused to the petitioners by the filing of one complaint in respect of the dishonouring of 11 cheques. The petitioners will, however, be at liberty to raise this point before the learned trial court during the course of trial. 8. In view of the above discussion, I do not find any merit in this petition and accordingly the same is dismissed.
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1993 (4) TMI 332
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... ... ..... to be understood according to English Calendar according to which the official business is transacted and according to which the words "month" and "year" are defined in the Bombay General Clauses Act, 1904. The word "Day" as per the English Calendar begins at midnight and covers a period of 24 hours thereafter. Since the day 16-12-92 begins from the midnight between 15th and 16th, the resignation of the petitioner would become effective after the midnight hour between 15th and 16th of December, 1992 because the petitioner wanted his resignation to be effective from 16th December 1992. The subsequent letter of withdrawal of resignation submitted by the petitioner on 16-12-1992 whether at 1 05 p.m. Or 3 00 p.m. would not be of any avail to the petitioner, because after his resignation had become effective, it would not have been withdrawn by him. 26. In this view of the matter, the instant writ petition fails and is dismissed. No order as to costs.
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1993 (4) TMI 331
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... ... ..... adopt is to show cause in response to the notice issued to it and the writ petition filed in these circumstances is premature. The S.L.P. is accordingly dismissed. However, time for filing reply to the show cause notice issued to the petitioner is extended by a further period of four weeks from today.
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1993 (4) TMI 330
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... ... ..... efect therein. This being so, the question of going into the merits of the charges, which are yet to be investigated in the departmental proceedings, did not arise for consideration or adjudication by the Tribunal at this stage. This being so, the Tribunal's order quashing the charge-sheet as well, on reaching the conclusion that the suspension order had to be set aside, is unwarranted. The respondent had been under suspension for nearly two years on the date of the Tribunal's order and another year has elapsed since then. Setting aside the suspension order in this situation, particularly when no substantial progress in the disciplinary proceedings has been made as yet, does not, therefore, call for any interference. 4. Consequently, the appeal is partly allowed to the extent that the Tribunal's order quashing the charge-sheet issued to the respondent is set aside while the challenge to the quashing of the suspension order dated May 10, 1990 is rejected. No costs.
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1993 (4) TMI 329
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... ... ..... e Tariff and entitled to full exemption under Serial No. 21 of Notification No. 234/82-C.E., dated 1st Nov. 1982, a position which the appellants accept. 4. The question of the refund of the amount paid, would depend on whether the amounts were passed on to the purchasers or not. The consequential relief, if any, shall therefore, be subject to the provisions of Section 11B of the Central Excise and Salt Act, 1944 as amended by Act 40 of 1991. 5. In terms of the compromise, we affirm the judgment of the Bombay High Court dated 27-4-1988, subject to the modifications indicated above. 6. The appeal is disposed of accordingly. No. costs.
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1993 (4) TMI 328
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... ... ..... grantor ceases to have any interest in the property affected by the license; The license was granted by the contractual tenant in 1972. But his tenancy had been determined by the landlord in 1966. He thus had become statutory tenant. He did not, in law had any assignable interest on the date he created the licence. The grantor therefore from a cause preceding the grant had ceased to have any interest, and was incapable or creating any valid licence unless he could be deemed to be at par with the contractual tenant by any provision in the Statute. In absence of any such provision in the Bombay Rent Act the licence was invalid and stood revoked. The occupation of the respondent thus was not as licensee within the meaning of Section 15A of the Act. 6. In the result this appeal succeeds and is allowed. The order passed by the High Court in the Writ Petition is set aside and it shall stand dismissed. In the circumstances of the case, however, there shall be no order as to costs.
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1993 (4) TMI 327
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... ... ..... (L & S) 632 (1991) 16 ATC was decided the non-statutory non-recognised cases were directed for disposal. It would appear when W.P. No. 575 of 1987 etc. were posted, instead of bringing to the notice of the Court of Khan case', Madhavan case2 was referred as having being covered. Accordingly, it was ordered thus "There will be an order as in Madhavan v. Union of India2." Thus this Court was led to believe that the law holding the field is Madhavan's ratio (a two-Judge Bench) instead of Khan's ratio (three Judge-Bench) a binding precedent. Therefore what is prevailing law is the one laid down by this Court in M.M.R. Khan v. Union of India1 and the direction given by this Court in the above writ petition referred to on September 22, 1992 would also fall in line with Khan's ratio. Accordingly, the petitioners are not entitled to the parity of treatment. The question of review does not arise. The civil miscellaneous petition is dismissed accordingly.
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1993 (4) TMI 326
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... ... ..... complaint in respect of the offence under Section 498A which prescribes imprisonment for a term up to three years, was barred by time. Nothing has been said by the High Court in respect of the offence under Section 494 of the Penal Code, to which Section 468 of the Code is not applicable the punishment being for a term extending up to seven years. Even in respect of allegation regarding an offence under Section 489A of the Penal code, it appears that the attention of the High Court was not drawn to Section 473 of the Code. In view of the allegation that the complainant was being subjected to cruelty by the respondent, the High Court should have held that it was in the interest of justice to take cognizance even of the offence under Section 498A ignoring the bar of Section 468. 10. In the result the appeal is allowed. The order passed by the High Court is set aside. The learned Magistrate is directed to proceed with the case in accordance with law as expeditiously as possible.
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1993 (4) TMI 325
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... ... ..... filed the application before the Motor Accident Claims Tribunal in December 1977. 4. Although the story put forward by the appellants, for not filing the application for compensation within the period of limitation, does not sound Arising out of SLP (C) No. 11369 of 1982 convincing but keeping in view the facts and circumstances of this case, especially the extreme shock under which the appellants were labouring, we are of the view that the Motor Accident Claims Tribunal should have condoned the delay and decided the claim on merits. 5. We allow the appeal, set aside the judgment of the Tribunal and of the High Court, condone the delay in filing the application for compensation before the Motor Accident Claims Tribunal, Jaunpur and remand the case to the Tribunal for decision on merits after hearing the parties in accordance with law. The Tribunal shall decide the application expeditiously and preferably within six months from the date of the receipt of this order. No costs.
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1993 (4) TMI 324
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... ... ..... as on today; and (ii) When the government failed to act within a reasonable period from the date of the order (December 30, 1986) of the High Court in writ petition 1346/84 (which was disposed of recording the statement of the Advocate General) the petitioners ought to have moved in the matter. They did not do so. They waited for more than twenty months and approached the High Court only on September 14, 1988. This delay, in our opinion, disentitles the petitioners from any relief in the facts and circumstances of the case. 11. For the above reasons, the appeals fail and are dismissed. No Costs. Writ Petition(C) No. 81 of 1993 The petitioner in this writ petition was included in the waiting list prepared by the public service commission. Since the appeals preferred by the candidates at serial No. 14 onwards in the main list have themselves failed, there is no question of giving any relief to this petitioner. 12. The writ petition accordingly fails and is dismissed. No Costs.
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1993 (4) TMI 323
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... ... ..... contention of the assessee appears to be correct and justified. A perusal of the details of foreign travelling expenses reveal that a major part of the expenditure relates to expenses for ticket and the expenses incurred during such tour to various countries. Copies of tour reports give datawise details of the places visited and the persons contracted in relation to business purposes. It has not been pointed out by the Assessing Officer or by the CIT(A) that such expenses incurred in relation to foreign tour are in excess of the limits prescribed under r. 6D or are in excess of the foreign exchange released by the Reserve Bank of India for this purpose. We are, therefore, of the considered opinion that there was no justification in making any such ad hoc disallowances of ₹ 20,000 without pointing out specific items of expenses of a personal nature, if any. We, therefore, direct the ITO to delete the entire disallowance. 10. In the result, the appeal is partly allowed.
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1993 (4) TMI 322
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... ... ..... 2 is also disposed of. (xii) Regarding payment of litigation costs, we have considered the points agitated by Shri Cooper and we find that RDIL will be unjustifiably burdened it required to pay the legal costs for defending these proceedings by the directors and, therefore, no director will be entitled to get any reimbursement of the legal or any other cost in connection of this petition and if any payment has already been made by the company, it should be recovered from these directors. (xiii) The committee of administrators may approach the Company Law Board to seek clarification if there is any difficulty is respect of implementation of these orders. 81. A copy of this order be sent to the chairman and the member of the committee of administrators so as to enable them to take further steps as per our orders. RDIL and its officers will render all necessary assistance to the committee of administrators and its chairman to fulfil the task assigned to them under these orders.
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1993 (4) TMI 321
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... ... ..... an interest free deposit of ₹ 7 lakes, the petitioner is entitled to maintain a petition for winding up of the company simply because a notice of demand under Section 434 of the Companies Act was served on the company and on its failure to pay in response thereto. The requirement of law is not satisfied in a case where the compensation is still to be determined although outer limit of the compensation is provided for in the agreement particularly when the terms of that agreement did undergo a change by means of the Memorandum of Understanding and the subsequent correspondence exchanged. The pleas raised by the respondent to indicate that there does exist a bona fide dispute about the amount due to the petitioner. (13) For these reasons I hold that present petition is not maintainable and the same is dismissed leaving the parties to bear their own costs. This order shall not in any manner prejudice the petitioner's right to pursue his claim/remedy in a civil court.
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1993 (4) TMI 320
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... ... ..... e but to remit the matter to the Trial Court with a direction to follow the course that may be found appropriate in the fact-situation arising out of the pleadings in this case and the nature of the questions required to be determined for grant or refusal of relief claimed in the suit. We would like to make it clear that the hypothetical situations may or may not apply to the fact situation that may emanate of the pleadings in this case and it would be for the Trial Court to determine the course of action to be adopted in the light of the guidelines indicated hereinabove. In view of the foregoing discussion, we allow this appeal, set aside the order of the High Court which in either case lacked jurisdiction to decide the question regarding tenancy on merits and remit the matter to the Trial Court for further orders in the light of the observation hereinabove made. Having regard to the peculiar facts and circumstance, of the case, we make no order as to costs. Appeal allowed.
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1993 (4) TMI 319
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... ... ..... y was within the knowledge of the detaining authority and having full knowledge of the facts, the detaining authority considered it necessary to detain the petitioner. The subjective satisfaction was arrived at having full knowledge of the facts." (emphasis supplied) 10.The learned Additional Solicitor-General placed before us the relevant file but he could not bring to our notice any material indicating that the release of the petitioner was likely or that there was a real possibility of his being released and/or that the authority was satisfied about the said aspect. 11.In the circumstances, we must hold that the principle enunciated by this Court in Kamarunnissa v. Union of India1 squarely applies and the order is liable to be quashed. It is accordingly quashed. The detenu if in custody shall be released forthwith if he is not required in any other case or if he is not being detained under an order of competent court. 12. The writ petition is disposed of accordingly.
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