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Showing 21 to 40 of 722 Records
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2008 (12) TMI 816 - BOMBAY HIGH COURT
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... ... ..... Court to direct the appointment of a substitute Joint Administrator instead and in place of Mr. A.A. Halbe. The Hon'ble Mr. Justice S.P. Kurdukar, Former Judge of the Supreme Court of India has consented to act as a Joint Administrator and shall accordingly stand appointed as a Joint Administrator instead and in place of Mr. A.A. Halbe. The appointment shall be on the same terms and conditions. The Civil Application is accordingly disposed of. 31. Mr. Seervai applies for a stay of the order removing Mr.A.A. Halbe. The stay cannot be granted. In view of the reasons that have led to the removal of the Joint Administrator, the same Joint Administrator cannot be permitted to continue. Moreover, by this order, the regime of the Joint Administrators has not been disturbed and a former Judge of the Supreme Court has been appointed in place of the earlier Joint Administrator. Parties cannot have any preference in regard to a particular name. In the circumstances, stay is refused.
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2008 (12) TMI 815 - DELHI HIGH COURT
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... ... ..... Rule 6 of the Code is allowed and a decree of specific performance is passed in favour of the plaintiff with the direction to the defendant to execute the Commercial Space Buyers' Agreement in respect of shop No. G-76 (approx. 717.55 sq. Ft) on the ground floor in Ambi Mall, Plot No. 2, Vasant Kunj, Mall Complex, New Delhi on payment of interest @ 18% p.a. on the three belated payments of instalments as mentioned in para 10 in terms of Agreement dated 8th September, 2004 as modified by letter/agreement dated 9th October, 2004. Defendant will calculate the interest amount and communicate the said amount by a registered letter to the plaintiff within six weeks. Application under Order VII, Rule 11 of the Code is dismissed and other applications are rendered infructuous. 30. plaintiff will be also entitled to costs of the suit. 31. plaintiff has not urged and prayed for execution of any document under the Delhi Apartments Ownership Act, 1986. The said question is left open.
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2008 (12) TMI 814 - SUPREME COURT
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... ... ..... onance with law. But we are fully satisfied that in the facts and circumstances of the case, back wages should not have been awarded to the respondent workman. In several cases, this Court has held that payment of back wages is a discretionary power which has to be exercised by a court/tribunal keeping in view the facts in their entirety and neither straitjacket formula can be evolved nor a rule of universal application can be laid down in such cases. 18. We are, therefore, of the opinion that in this case, no back-wages should have been awarded in favour of the respondent. We have been, however, informed by the Bar that a sum of ₹ 60,000/- has already been paid to the respondent. It is, therefore, directed that any amount paid to the respondent, if any, shall not be recovered. 19. For the aforementioned reasons, the impugned judgment of the High Court is modified to the aforementioned extent. The appeal is allowed in part. There shall, however, be no order as to costs.
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2008 (12) TMI 813 - SUPREME COURT
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... ... ..... which for all intent and purport amounts to modification of a valid decree passed by a competent court of law. The decision of the High Court, therefore, was wholly without jurisdiction. Furthermore, the High Court did not hold that Section 74 of the Contract Act will have application. It only remitted the matter to the executing court. 18. We do not find that any legal principle has been adverted to by the executing court in reducing the rate of interest to 14 per cent and the High Court in reducing the same further to 9 per cent. There are a large number of decisions where interest has been directed to be paid even at the rate of 18 per cent or 21 per cent per annum. 19. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The executing court is directed to proceed to execute the decree as it is. The appeals are allowed with costs. Counsel's fee assessed at ₹ 25,000/-. S.B. Sinha and Cyriac Joseph, JJ. 16.12.2008
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2008 (12) TMI 812 - SC ORDER
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... ... ..... v., Ms. Arti Gupta, Adv., Mr. B.V. Balaram Das,Adv. For the Respondent None ORDER Delay condoned. The Special Leave Petition is dismissed on facts. Question of law is kept open.
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2008 (12) TMI 811 - SUPREME COURT
Maintainability of application - an application u/s 482 of the Code of Criminal Procedure, 1973, can be dismissed only on the premise that an alternative remedy of filing a revision application u/s 397 of the Code is available?
High Court committed a serious error in rejecting the application filed by appellants u/s 482 of the Code without entering into the merit of the matter.
HELD THAT:- Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R.P. Kapur v. State of Punjab [1960 (3) TMI 45 - SUPREME COURT] to Som Mittal v. Govt. of Karnataka 2008 [2008 (2) TMI 866 - SUPREME COURT] has laid down the criterion for entertaining an application u/s 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application u/s 482 of the Code.
Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908 this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available.
Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Sessions is barred u/s 397(2) of the Code, the inherent power of the Court has been held to be available.
The power of the High Court can be exercised not only in terms of Section 482 of the Code but also in terms of Section 483 thereof.
Inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of.
It may be true, as has been noticed by the High Court that thereunder availability of appellate or revisional jurisdiction of the High Court did not fall for its consideration but in our considered opinion it is wholly preposterous to hold that Adalat Prasad [2004 (8) TMI 647 - SUPREME COURT], so far as it related to invoking the inherent jurisdiction of the High Court is concerned, did not lay down good law. The High Court in saying so did not only read the said judgment in its proper perspective; it misdirected itself in saying so as it did not pose unto itself a correct question.
For the reasons aforementioned the impugned judgment cannot be sustained which is set aside accordingly. The High Court is directed to consider the matter afresh on merits. The appeal is allowed.
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2008 (12) TMI 810 - SUPREME COURT
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... ... ..... as the person responsible for the acts of the Company. The liability of the company is, therefore, a civil liability. It is also not a case where although a prima facie case had been made out disclosing commission of an offence, the court is called upon to consider the defence of the accused. The First Information Report itself refers to the documents. They can, therefore, be taken into consideration for the purpose of ascertaining as to whether the allegations made in the complaint petition read as a whole, even if taken to be correct in its entirety, discloses commission of any cognizable offence or not. As admittedly Respondent No. 2 was the supplier of garments which were found out to be defective in nature, we are of the opinion that the dispute between the parties is civil in nature. 13. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. The impugned summons issued to the appellants are quashed.
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2008 (12) TMI 809 - SUPREME COURT
Cheating - Application filed u/s 482 - agreement to manufacture a machine to purify and desalt the dyes of a particular quality and quantity - said machine did not conform to the specifications contained in the order placed with the firm - refusal to take the delivery thereof.
HELD THAT:- For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence u/s 420 of the IPC can be said to have been made out.
There exists a distinction between pure contractual dispute of civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction u/s 482 of the CrPC.
Section 482 of the Code of Criminal Procedure, saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him - We may reiterate that one of the ingredients of cheating as defined in Section 415 of the IPC is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract.
A matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent. The Superior Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts.
We may notice a decision of this Court in from State of Madhya Pradesh v. Awadh Kishore Gupta [2003 (11) TMI 584 - SUPREME COURT] held that it is open to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.
No exception can be taken to the aforementioned principles of law, as therein also it has categorically been held that exercise of inherent power u/s 482 is permissible where allegations set out in the complaint do not constitute the offence for which cognizance has been taken by the Magistrate. It is evidently a case of that nature.
Therefore, the judgment of the High Court cannot be sustained - appeal is allowed.
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2008 (12) TMI 808 - MADRAS HIGH COURT
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... ... ..... so did not take the entire value as reflected in Ex.P-3, for the reason that it was in respect of a small extent of about 78 sq. ft., and that too only an undivided share. Therefore, the Appellate Authority adopted ₹ 70,00,000/- per ground as the market value of land, in the year 2003, for the property in Sowcarpet, which actually adjoints the prime non-residential locality in Chennai, viz., Chennai-1. Hence I am unable to find fault with the Appellate Authority in fixing the value of land at the said rate. 35. Thus, I find no material irregularity or illegality in the order of the Appellate Authority, either in the matter of arriving at the cost of construction or in the matter of fixation of the market value of land. Consequently, I find no justification to interfere with the order of the Appellate Authority even on merits. 36. In view of the above, these Civil Revision Petitions are dismissed. No costs. Consequently connected miscellaneous petition is also dismissed.
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2008 (12) TMI 807 - KARNATAKA HIGH COURT
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... ... ..... of the Mumbai High Court and therefore the direction issued by it to redo the contract process was not complied. (vi). In this case, if the petitioner enters into such a settlement with the BIAL, it should be precluded from considering its claim while re-doing the matter as directed by this Court. (vii). For the aforementioned reasons, the Writ Petition. Rule made absolute. The short-listing of respondent Nos. 5 to 9 and awarding of contract in favour of 5th respondent is hereby quashed. The 3rd respondent is directed to re-do the matter afresh from the stage of submission of E.O.I by petitioner and others keeping in view the observations made in this order and the principles laid down by the decisions of Apex Court. The entire process shall be completed by BIAL within 45 days from the date of receipt of a copy of this order and further we direct respondent No. 1-Union of India and respondent No. 2-A.A.I to see that the above directions issued to BIAL should be complied with.
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2008 (12) TMI 806 - MADRAS HIGH COURT
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... ... ..... Judgment and decree passed by the first appellate Court are not factually and legally sustainable and the same are liable to be set aside. 28. In view of the foregoing narration of both the factual and legal premise, this Court has found subsisting force in the argument advanced by the learned counsel appearing for the appellant/first defendant and the argument advanced by the learned counsel appearing for the respondent/plaintiff is sans merit and further all the substantial questions of law raised on the side of the appellant/first defendant are decided in his favour and altogether, the present second appeal is liable to be allowed. 29. In fine, this second appeal is allowed without cost at the stage of admission. The Judgment and decree passed in Appeal Suit No.8 of 2008 by the Sub Court, Karur are set aside and the Judgment and decree passed in Original Suit No.640 of 2003 by the Additional District Munsif Court, Karur are restored. Connected MP(MD)No.1 of 2008 is closed.
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2008 (12) TMI 805 - DELHI HIGH COURT
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... ... ..... terms of the settlement. From the facts and circumstances of the case, it is manifestly clear that the settlement did not fully fructify between the parties and petitioner had no legal liability nor had any debt towards the complainant which could be legally enforced as a debt against the petitioner by the respondent under Section 138 of the NI Act. 15. Hence, no offence can be said to have been made out against the petitioner under Section 138 of the NI Act. The trial court erred in summoning the petitioner on the basis of averments contained in the complaint as he failed to appreciate that the impugned cheque was not issued towards payment of any legally enforceable debt but was for purposes of settlement against the marital dispute between the petitioner's son and the respondent. 16. Hence, petition is allowed. The complaint case No. 18112/2007 and summoning order dated 5.11.2007 are hereby quashed. 17. Attested copy of the order be sent to the trial court immediately.
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2008 (12) TMI 804 - MADRAS HIGH COURT
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... ... ..... ooked into at all, as the consideration of fresh materials by this Court would not be appropriate while exercising the power under Article 227 of the Constitution. Further we do not find any reason for grant of injunction in favour of the petitioner on the ground of passing off also. In view of our above findings, which are basically on merits, the challenge to the registration of the trade marks "camel collection" in favour of the respondent to be contrary to Sections 9, 11(a), 11(e) and 18(1) of the Trade Marks and Merchandise Act, 1958 is also liable to be rejected. 35. For all the above reasons, we find no infirmity much less patent error in the order of the appellate Board and therefore, the Civil Revision Petitions Nos. 1047 to 1052 of 2006 are dismissed. The common Order dated 15.03.2006 made in O.A. No. 15-20/2005/TM/CH by the Intellectual Property Appellate Board, Chennai stand confirmed. No costs. Consequently, connected miscellaneous petitions are closed.
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2008 (12) TMI 803 - SUPREME COURT OF INDIA
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... ... ..... with the other side is not invalid. In The Vulcan Insurance Co. Ltd. v. Maharaj Singh and Anr. reported in 1976 2SCR62 , the arbitration clause read as under 18. If any difference arises as to the amount of any loss or damage such difference shall independently of all other questions be referred to the decision of an Arbitrator, to be appointed in writing by the parties in difference, or, if they cannot agree upon a single Arbitrator to the decision of two disinterested persons as Arbitrators.... And it is hereby expressly stipulated and declared that it shall be a condition precedent to any right of action or suit upon this policy that the award by such arbitrator, arbitrators or Umpire of the amount of the loss or damage if disputed shall be first obtained. 19. In no case whatever shall the company be liable for any loss or damage after the expiration of twelve months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration.
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2008 (12) TMI 802 - SUPREME COURT
Principles of natural justice - Application filed under Order 8 Rule 10 of the Code of Civil Procedure rejected - orders passed by the trial Court as also the Revisional Court without assigning any reason therefor.
HELD THAT:- Provisions of Order 8 Rule 1 of the Code of Civil Procedure having been held to be directory in nature by this Court in Kailash v. Nanhku and Ors.[2005 (4) TMI 542 - SUPREME COURT], this Court may not exercise its discretionary jurisdiction under Article 136 of the Constitution of India.
The matter was yet again considered by a three-judge Bench of this Court in R.N. Jadi & Brothers and Ors. v. Subhashchandra [2007 (7) TMI 662 - SUPREME COURT] held that; ''It is necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional case, will the breach thereof will be condoned.''
In view of the authoritative pronouncements of this Court, we are of the opinion that the High Court should not have allowed the writ petition filed by the respondent, particularly, when both the learned trial judge as also the Revisional Court had assigned sufficient and cogent reasons in support of their orders.
The High Court allowed the writ petition and thereby set aside the orders passed by the trial Court as also the Revisional Court without assigning any reason therefor. The jurisdiction of the High Court under Article 226 and 227 of the Constitution of India is limited. It could have set aside the orders passed by the ld trial Court and the Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety.
The High Court did not arrive at a finding that there had been a substantial failure of justice or the orders passed by the trial Court as also by the Revisional Court contained error apparent on the face of the record warranting interference by a superior Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
Therefore, the impugned judgment of the High Court cannot be sustained. It is set aside accordingly. The appeal is allowed.
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2008 (12) TMI 801 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... e from the gifted equity shares was, thus, liable to be taken as the value of the gift. This view is also supported by provisions of Section 6(2) of the Act. It has been held by the Hon'ble Supreme Court in Escorts Farms (Ramgarh) Ltd.'s case (supra) that bonus shares are income from the equity shares. The said judgment has been distinguished by the Tribunal on the ground that the same related to computation of capital gains. The fact remains that the principle laid down therein that bonus shares were income from the original shares and have the effect of reducing the value of original shares, remained undisputed. To the extent of value of bonus shares, gift tax was clearly attracted. The Tribunal was not, thus, justified in holding that value of bonus shares in the hands of the donee after the gift was revoked could not be taxed under the Act. 5. In view of above, we allow this appeal and set aside the order of the Tribunal and restore that of the Assessing Officer.
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2008 (12) TMI 800 - SUPREME COURT
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... ... ..... t made a simpliciter reappraisal of the evidence to arrive at conclusions different from those of the courts below, but has corrected an error as to the onus of proof on the existence or otherwise of a joint Hindu family property." 18. The instant case does not come within the purview of the aforementioned dicta. The High Court did not deal with the substantial questions of law formulated at the time of admission at all. We, therefore, are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly and the matter is remitted to the High Court for consideration of the matter afresh. In the event, the High Court opines that any substantial question of law should be framed suo motu or at the instance of the appellant before it, viz., respondent herein, it shall give an opportunity of hearing to appellant. 19. Appeal is allowed on the aforementioned terms. In the facts and circumstance of the case, however, there shall be no order as to costs.
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2008 (12) TMI 799 - SUPREME COURT
Decree for specific performance u/s 16(c) - forged signature in the agreement of sale - Whether an agreement of sale (Ext. 2) executed only by the vendor, and not by the purchaser, is valid?
HELD THAT:- Since the trial Court analyzed and compared the opinion of two experts with materials placed before them and preferred to accept the opinion of expert examined by the side of the plaintiff, there is no reason to dispute the said conclusion. In the light of the controversy the Division Bench of the High Court also compared the signature found in other documents such as vakalatnama, written statement with that of the signature found in Ext.2 and concluded that the signature found in the agreement of sale was that of the defendant Ms. Kanika Bose. We are of the view that there is no valid reason to disturb the factual finding based on acceptable materials. The learned Single Judge of the High Court committed an error in taking a contrary view.
As evident from the fact that the document is signed by the vendor and duly witnessed by four witnesses and was delivered to the purchaser. Apart from a separate endorsement made on the date of the agreement itself by the vendor acknowledging the receipt as advance, it also contains a second endorsement (which is also duly witnessed) by the vendor, acknowledging the receipt of a further sum and confirming that the total earnest money received. This shows that the purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a complete instrument and that she then obtained an endorsement thereon by the vendor, in regard to second payment.
If the agreement was not complete, the vendor would not have received a further amount and endorsed an acknowledgement thereon. the evidence of the witnesses also shows that there was a concluded contract. Therefore, even though the draftsman who prepared the agreement might have used a format intended for execution by both vendor and purchaser, the manner in which the parties had proceeded, clearly demonstrated that it was intended to be executed only by the vendor alone. Thus we hold that the agreement of sale (Ext. 2) signed only by the vendor was valid and enforceable by the purchaser.
The trial Court and the Division Bench also concluded that the plaintiff had fulfilled the conditions as stated in Section 16(c) of the Specific Relief Act and in that event the plaintiff is entitled decree for specific performance which was rightly granted by the trial Court. Though ld Counsel for the appellants pointed out that the claim of the plaintiff that she was put in possession of a portion of the suit property in part performance was not accepted by the trial Court, in the light of the categorical findings about the validity of Ext. 2 and satisfactory proof of other conditions for granting the decree for specific performance, we are unable to accept the said contention. On the other hand, we agree with the conclusion arrived at by the Division Bench and hold that the agreement of sale was enforceable and the trial Court has rightly granted decree which was affirmed by the Division Bench of the High Court.
Looked at from any angle, the judgment of the Division Bench of the High Court setting aside the order of the Single Judge and affirming the judgment and decree of the trial Court, does not warrant any interference by this Court. Consequently, the appeal fails and the same is dismissed.
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2008 (12) TMI 798 - ALLAHABAD HIGH COURT
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... ... ..... aw in reversing the same solely on the ground that the land is not identifiable. In view of the discussion I hold that in the present set of facts and circumstances there was only one additional new issue which was framed by the lower appellate Court. The decision on the said issue required no further evidence as the land in dispute was clearly identifiable on the spot by the plot number given by the Nagar Panchyat. Accordingly, the appellate Court was not justified even in reversing the finding of ownership and possession of the plaintiff-appellant as recorded by the Court of first instance. The appeal therefore, succeeds and is allowed. The judgment, order and decree of the lower appellate Court passed in Civil Appeal No. 40 of 2004 ( Zarif Ahmad and another Vs. Mohd. Farooq) is hereby set aside and that of the Court of first instance passed in Original Suit No. 77 of 1999 (Mohd. Farooq Vs. Zarif Ahmad and another) is restored and affirmed. Parties to bear their own costs.
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2008 (12) TMI 797 - DELHI HIGH COURT
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... ... ..... the cheques were dishonoured for "insufficient funds", a finding which is not disputed. 6. Firstly, the appellants' case before the learned Single Judge was that some time may be given to file written statement as a vakalatnama had been filed. The proviso to Order XXXVII Rule 2 Sub-rule (3) of the CPC clearly stipulates that unless an appearance is entered, as prescribed under Order XXXVII of the CPC, a decree shall follow. The learned Single Judge relied upon that provision and granted the decree in favour of plaintiff/Respondent. De hors the above plea in order to ascertain the bona fides of the appellants, we asked him that the Court would consider grant of limited leave to defend to the extent of ₹ 30,62,949/- subject to deposit of ₹ 25,00,000/-. The defendants/appellants have expressed inability to do so. Therefore, we find no reason to interfere with the impugned judgment of the learned Single Judge. 7. The appeals stand dismissed accordingly.
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