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Showing 21 to 40 of 503 Records
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2005 (11) TMI 513
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... ... ..... nd mentioned above. It is alleged that murder of Shri Rajender Yadav has taken place and his younger brother is connected with this case. Therefore in the interest of justice both these cases be transferred to any other court where, in a proper atmosphere, the matter can be dealt with fairly. In the interest of justice, we direct that criminal case No.3/2003 in crime case No.10/03 under Sections 3 & 4 of POTA Act titled as State vs Udai Pratap Singh, Raghu Raj Pratap Singh Raja Bhaiya and Akshya Pratap Singh Gopalji, and case No. 113/2002 & 209/2002 under Section 2/3 of U.P. Ganster & Anti Social Activities(Prevention) Act, 1986 titled as State of U.P. vs. Udai Pratap Singh, Raghu Raj Pratap Singh Raja Bhaiya & Akshya Pratap Singh pending in the Court of Special Judge(Gangster Act), Allahabad, U.P. be transferred to a Special Judge in M.P. Let the Hon. Chief Justice nominate any Special Judge to try these cases. The transfer petitions are accordingly allowed.
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2005 (11) TMI 512
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... ... ..... igh Court by its order dated 30.8.2001 against which the special leave petition, preferred by the Appellants, had already been dismissed. Though the review may have been maintainable but the Appellants could not be allowed to reagitate the points which had already been decided by the Court. The review could be granted only if there was a mistake apparent on the face of the record. We do not find any such apparent mistake on the face of the record. The High Court in its order dated 30.8.2001 had taken the view that the amount deposited in the Court by the Appellants was in lieu of the market fee for the benefit of the Market Committee, and therefore, the Market Committee was entitled to receive the same. Two views are possible on this point but the same cannot be a ground for reviewing the said order as it does not fall within the scope of review jurisdiction. For the reasons stated above, we do not find any merit in this appeal and dismiss the same with no order as to costs.
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2005 (11) TMI 511
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... ... ..... of cheques. The defence is, as such, moonshine and amounts to evade the liability. 12. Learned Counsel for the respondent-company fairly admits that the respondent-company has stopped its production and its factory lying closed since the year 2000. It is clear that the respondent-company is not doing any business for last five years and is unable to pay its dues. 13. Having regard to the facts and circumstances, let the company petition be advertised under Rule 24 of the Companies (Court) Rules, 1959, within a period of six weeks but not before December 12, 2005. Steps may be taken within two weeks. The respondent-company is given an opportunity to pay the entire outstanding on or before December 9, 2005, failing which the petitioner shall proceed to advertise the petition. 14. Having regard to the facts and circumstances, the respondent-company is restrained from selling, disposing of, and encumbrancing its assets, including the plant and machinery in any manner whatsoever.
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2005 (11) TMI 510
Application under Order 7 Rule 11(d) - barred by limitation - Suit for a declaration - acquisition of Schedule 'B' property - seeking injunction - instead of filing the written statement filed an application under Order 7 Rule 11 read with Section 151 of the Civil Procedure Code seeking rejection of the plaint - HELD THAT:- After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) Civil Procedure Code and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Civil Procedure Code.
The interim stay granted by this Court staying the further proceedings of the trial court is vacated. The parties are relegated to contest the suit. The appellant is permitted to file the written statement within thirty days from today. It shall be open to the appellant to raise any plea available to it under the law including the plea of limitation, maintainability of the suit, etc. The plaintiff-respondents would also be at liberty to file the replication to the written statement, if any, within fifteen days of receipt of the copy of the written statement. The trial Court shall decide the points/issues raised in the suit without being influenced by any of the observations made in this order or that of the High Court or the trial Court.
Since the suit is pending for the last four years, the trial Court is directed to dispose of the suit expeditiously, preferably within a period of one year from today. The appeal is disposed of accordingly.
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2005 (11) TMI 509
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... ... ..... r children excepting bare denial that the share certificates have not been issued to the petitioner and her children. The contentions of the petitioner that the impugned transfer of shares is not supported by consideration and that it does not satisfy the mandatory requirements of Section 108, as rightly pointed out by Shri Murari, learned Counsel, do not merit any consideration, in view of the fact that the petitioner and the consenting shareholders have relinquished their interest in the Company by unequivocally acting upon the deed of arrangement and declaration. In view of the above facts and the foregoing conclusions, I am of the considered view that the petitioner failed to satisfy the requirements of Sections 397/398, and, therefore, not entitled for any relief claimed in the company petition. Ordered accordingly. With these directions, the company petition stands disposed of; The interim injunction granted on 25.04.2005 which stood clarified on 15.06.2005 is vacated.
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2005 (11) TMI 508
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... ... ..... HONDA and logo as also selling such goods in the packaging identical or deceptively similar to that of the plaintiff. A decree is also passed in favor of the plaintiff and against the defendant for the defendant to hand over the seized goods released by the Local Commissioner on superdari to the defendant so that the same can be destroyed by the plaintiff. A decree of damages is also passed in favor of the plaintiff and against the defendant for a sum of ₹ 5 lakhs. The plaintiff shall also be entitled to costs of the present proceedings. 22. Decree-sheet be drawn up accordingly.23. It is, however, observed on a perusal of the plaint that the suit is deficiently stamped in view of judgment of this Court in CS(OS) No. 1165/2001 titled 'Pfizer Products, Inc. v. B.L. & Co. and Ors.' decided on 03.10.2005. Learned counsel for the plaintiff states that he will file the deficient court fee within a week. Decree-sheet be drawn up only on such court fee being paid.
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2005 (11) TMI 507
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... ... ..... uded from the definition of debt. If the mortgagee obtains a decree for the payment of money in satisfaction of a claim arising under the mortgage, then only he is not entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. The suit of the present form with which we are concerned is not a claim arising under the mortgage and a suit for sale in enforcement of the mortgage within the meaning of Order XXXIV of the Code of Civil Procedure. The suit is the simple suit for recovery of debt and the prayer Clauses (c) and (d) are consequential and incidental for the recovery of the said debt. The mortgage is created as a security for the payment of money and as such these submissions that in the suit for enforcement of mortgage, the period of limitation is 12 years shall stand rejected. 14. In the light of above discussion, I do not find any merit in the appeal and the appeal is, accordingly, dismissed. No costs.
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2005 (11) TMI 506
Enhancement of age of superannuation - Whether amendment made in Rule 56(a) of Uttar Pradesh Fundamental Rules ('the Rules') by Notification dated June 27, 2002 enhancing age of superannuation of government servants from 58 years to 60 years would be applicable to the employees of Uttar Pradesh Jal Nigam ('the Nigam') - HELD THAT:- In the present case, as Regulations have been framed by the Nigam specifically enumerating in Regulation 31 thereof that the Rules governing the service conditions of government servants shall equally apply to the employees of the Nigam, it was not possible for the Nigam to take an administrative decision acting u/s 15(1) of the Act pursuant to direction of the State Government in the matter of policy issued u/s 89 of the Act and directing that the enhanced age of superannuation of 60 years applicable to the government servants shall not apply to the employees of the Nigam.
In our view, the only option for the Nigam was to make suitable amendment in Regulation 31 with the previous approval of the State Government providing thereunder age of superannuation of its employees to be 58 years, in case, it intended that 60 years which was the enhanced age of superannuation of the State Government employees should not be made applicable to employees of the Nigam. It was also not possible for the State Government to give a direction purporting to Act u/s 89 of the Act to the effect that the enhanced age of 60 years would not be applicable to the employees of the Nigam treating the same to be a matter of policy nor it was permissible for the Nigam on the basis of such a direction of the State Government in policy matter of the Nigam to take an administrative decision acting u/s 15(1) of the Act as the same would be inconsistent with Regulation 31 which was framed by the Nigam in the exercise of powers conferred upon it u/s 97(2)(c) of the Act.
Thus, we are of the view that so long Regulation 31 of the Regulations is not amended, 60 years which is the age of superannuation of government servants employed under the State of Uttar Pradesh shall be applicable to the employees of the Nigam. However, it would be open to the Nigam with the previous approval of the State Government to make suitable amendment in Regulation 31 and alter service conditions of employees of the Nigam, including their age of superannuation. It is needless to say that if it is so done, the same shall be prospective.
Hence, the appeals as well as writ petitions are allowed, orders passed by the High Court dismissing the writ petitions as well as those by the Nigam directing that the appellants of the Civil Appeals and petitioners of the Writ Petitions would superannuate upon completion of the age of 58 years are set aside and it is directed that in case the employees have been allowed to continue up to the age of 60 years by virtue of some interim order, no recovery shall be made from them but in case, however, they have not been allowed to continue after completing the age of 58 years by virtue of erroneous decision taken by the Nigam for no fault of theirs, they would be entitled to payment of salary for the remaining period up to the age of 60 years which must be paid to them within a period of three months from the date of receipt of copy of this order by the Nigam.
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2005 (11) TMI 505
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... ... ..... Nos.1 and 2 in the proceedings. This order has gone against the petitioner and, therefore, the respondent Nos.1 and 2 are keen on encashing the bank guarantee. 3. The bank guarantee is valid upto December 22, 2005. The petitioner has remedy to file an appeal against the impugned order before Customs, Excise and Service Tax Appellate Tribunal. They may file the same in the meanwhile, so preferably by the end of this month and apply for appropriate order on that stay application. They ought to move that application and apply for that order by December 15, 2005. In the event, they do not get the necessary order, it will be open for the respondent Nos.1 and 2 to encash the bank guarantee. 4. Needless to mention that the bank guarantee will not be encashed in the meanwhile. Both parties will inform respondent No.3 about this order. 5. Petition stands disposed of in terms of this order with no order as to costs. 6. Authenticated copy of this order be made available to the parties.
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2005 (11) TMI 504
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... ... ..... er the termination invalid. The mere fact that there was misconduct on the part of probationer which was not enquired into ipso facto would not lead to the conclusion that the order of the termination is colourable and in fact is punitive. 26. In Union of India and Ors. v. A.P.Bajpai and Ors. (2003)ILLJ847SC) , the Supreme Court held that the allegations stated in the counter-affidavit against an employee would not change the nature and character of the order of termination. 27. In Pavendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr.(2002)ILLJ690SC) , the Supreme Court held that mere holding of an inquiry prior to the termination order would not make the termination order punitive in nature. 28. The same view was taken by the Supreme Court in State of Punjab and Ors. v. Sukhwinder Singh 2005 (106) FLR 613. 29. Following the aforesaid decision, we see no reason to interfere in the judgment of the learned Single Judge. This appeal is consequently dismissed.
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2005 (11) TMI 503
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... ... ..... y cannot function properly and the use of such capital goods is essential for smooth running of plant with greater efficiency. In other words, the goods in question are essential supplement to the plant and machinery for use in manufacturing goods, for its greater efficiency and better results and thus, it is an integral part of the process with which the primary machines are engaged. If we look from these aspects, the combined effect of the liberal view of the provision and the user of the machine as a supplementary or incidental to the main machines and except for the direct user, there is no impediment for the goods in question qualifying as capital goods eligible for modvat benefit. We have no hesitation in coming to the conclusion that the Tribunal was justified in holding the goods in question namely welding machine, drilling machine and lubricants as a capital goods eligible for modvat credit. The appeal, therefore, fails and is hereby dismissed. No order as to costs.
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2005 (11) TMI 502
Application u/s 482 CrPC for recall of the order - not served with the notice of the revision - ex parte against him - Challenged the summon order for facing prosecution u/s 13(2) of Prevention of Corruption Act, 1988 - HELD THAT:- The contention raised by learned counsel for the respondent that a Court takes cognizance of an offence and not of an offender holds good when a Magistrate takes cognizance of an offence u/s 190, Cr.P.C. The observations made by this Court in Raghubans Dubey vs. State of Bihar [1967 (1) TMI 83 - SUPREME COURT] were also made in that context. The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions.
Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319, CrPC. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power u/s 319, Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person.
Thus, we are of the opinion that the impugned order of the High Court directing summoning of the appellant- Dilawar Singh is wholly illegal and cannot be sustained. The appeals are accordingly allowed. The impugned order of the High Court is set aside and the order of the Special Judge, Barnala, is restored.
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2005 (11) TMI 501
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... ... ..... nt, the statement of the importer and their employees as also the market inquiries and in particular, the manner in which the goods were found to have been packed with size, order reference, machine ID, date, box number and the weight of the nails manufactured by the supplier available in print on the boxes, correctly came to the conclusion that the consignment did not contain heavy melting scrap but good quality factory fresh nails. The description of the goods covered by the bills of entry as ‘heavy melting scrap’ was, therefore, clearly wrong, rendering the consignment liable to confiscation. Inasmuch as the authorities below have directed the confiscation, and imposed redemption fine to be calculated afresh in terms of the impugned remand order, they have committed no mistake to warrant interference from this Court. The appeal does not, in any event, raise a substantial question of law for our determination. The same, therefore, fails and is hereby dismissed.
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2005 (11) TMI 500
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... ... ..... pplied by Assessing Officer under Section 195 A of the Income Tax Act, 1961?” 3. An identical question of law was considered by a Division Bench of this Court in the judgment in Commissioner of Income Tax, Meerut and another Vs. ONGC as agent of Cooper Engineering Services International Incorporated and connected cases, which was reported in (2003) 264 ITR 340. In the above judgment, this Court held that the Tribunal was right in holding that Multiple Stage Grossing Up of income was not applicable to notional income under section 44BB read with section 195A of the Income Tax Act, 1961. 4. Following the above-mentioned judgment of a Division Bench of this Court, we dismiss this appeal.
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2005 (11) TMI 499
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... ... ..... an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where such liability is created by distinct substantive provisions charging sections . Any such omission or defect may render the order made irregular - depending upon the nature of the provision not complied with - but certainly not void or illegal." (pp. 743-747) 5. That apart the contention that the order of reassessment is bad on account of non-service of a notice or violation of principles of natural justice may be open to a party who has suffered on account of any such irregularity. That contention may not be open to the appellant before us who had admittedly received a notice and appeared before the Assessing Officer and participated in the reassessment proceedings. 6. In the light of what has been stated above, no substantial question of law arises for our consideration. The appeal fails and is, accordingly, dismissed.
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2005 (11) TMI 498
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... ... ..... R.V. Raveendran, JJ. ORDER Appeal admitted.
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2005 (11) TMI 497
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... ... ..... he interest of mineral development it is necessary to do so obviously has an objective angle involved and, therefore, there is necessity to record reasons. So far as Sub-rule (6-a) is concerned, there is no requirement indicated to record reasons. The fact that priority is given to a person who has already set up an industry is itself the reason for giving priority. Therefore, the enumeration of the order of priority is itself the reason inbuilt in the process of consideration of the applications. That itself is the foundation and forms the rational for the priority given. It is not the case of the appellant that the order of priority is irrational. That being so, stand of learned counsel for the appellants that reasons were not recorded and, therefore, the action is vitiated is really of no consequence. Looked at from any angle, the appellants have not made out any case for interference with the judgment of the High Court. The appeal fails and is dismissed. Costs made easy.
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2005 (11) TMI 496
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... ... ..... le and the said additions ought to be deleted. 3.Without prejudice to your respondents contention that the amount of ₹ 80,258 received from M/s. Digital Equipment Corporation, USA is a capital receipt. Your respondents submit that the amount in question is not revenue receipt and ought to be taxed as capital gains and not as business income. 27. The first ground is allowed as this issue is already decided by us in departmental appeal in favour of assessee. Thus, this ground is allowed. 28. Regarding ground No. 2, a detailed discussion has been made in departmental appeal and the issue is decided in favour of revenue. Thus, this ground of assessee is, therefore, rejected. 29. Ground No. 3 is about receipt of a sum of ₹ 80,258 from DEL. This amount is treated as capital receipt and decided in favour of assessee in departmental appeal (above). This ground of assessee is, therefore, allowed. 30. In the result, the cross objection appeal of assessee is partly allowed.
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2005 (11) TMI 495
Challenged the judgment passed by High Court - Non- application of mind - directed appellant-Corporation to pay to the respondent no. 1 a sum of ₹ 8.5 lakhs within a period of three months from the date of order with default stipulation that in case of non-payment the amount shall carry interest @ 12% p.a. after three months - HELD THAT:- A bare perusal of the High Court's judgment shows that there was clear non- application of mind. On one hand the High Court observed that the disputed questions cannot be gone into a writ petition. It was also noticed that essence of dispute was breach of contract. After coming to the conclusions the High Court should have dismissed the writ petition. Surprisingly, the High Court proceeded to examine the case solely on the writ petitioner's assertion and on a very curious reasoning that though the appellant-Corporation claimed that the value of articles lifted was nearly rupees 14.90 lakhs no details were specifically given.
From the counter- affidavit filed before the High Court it is crystal clear that relevant details disputing claim of the writ petitioner were given. Value of articles lifted by the writ petitioner is a disputed factual question. Where a complicated question of fact is involved and the matter requires thorough proof on factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition. As noted above, the writ petition was primarily founded on allegation of breach of contract. Question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on facts and would require material evidence to be scrutinized and in such a case writ jurisdiction should not be exercised.
Above being the position the High Court's judgment is clearly unsustainable and is set aside. However, our interference in the matter shall not stand in the way of the writ petitioner seeking any other remedy as is available in law.
The appeal is allowed.
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2005 (11) TMI 494
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... ... ..... law. 3 As can be seen from the record, both the Commissioner (Appeals) and the Tribunal have found as a matter of fact that the agreement with Neumetic Marketing Co.Pvt.Ltd. was to commence from 1.4.1993 i.e. after the end of the accounting period. That in fact, no money was received by the assessee in the year under consideration and in light of the agreement being effective after the end of the accounting period no payment had accrued to the assessee. 4 Once it is found by the appellate authority that on facts the agreement had never come into operation in the accounting year it cannot be stated that the authorities have erred, in any manner whatsoever, in holding that there was no accrual of any income nor did any right arise in favour of the assessee. The authorities have rightly concluded that making of an entry cannot be decisive factor to determine whether income has accrued or not. In the result, in absence of any substantial question of law the appeal is dismissed.
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