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Showing 41 to 60 of 722 Records
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2008 (12) TMI 796 - SUPREME COURT
Prayer to Quash the Proceedings - Cognizance of offence punishable under Sections 406 and 420 of the Indian Penal Code, 1860 (`IPC') - hire purchased finance - HELD THAT:- The appellants have introduced a fabricated letter dated 24.6.1995. It is their stand that the entire amount was paid and, therefore, on receiving the full payment, the appellants ought to have returned the cheques which were held only as a collateral security. It is not in dispute that the proceedings u/s 138 are pending. That being so, the question of proceeding for alleged breach of trust does not arise.
It is interesting to note that the respondent does not dispute issuance of cheques. Even a casual reading of the complaint does not show that the ingredients of Section 406 IPC are in any event made out. It is also not understandable as to how Section 294 has any application to the facts of the case much less Section 506 IPC. In addition to this, perusal of the complaint apparently shows the ulterior motive. It is clear that the proceeding initiated by the respondent clearly amounted to abuse of the process of law. In State of Haryana v. Bhajan Lal [1992 (12) TMI 234 - SUPREME COURT] ; ''(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.''
The case at hand falls under category (7). Therefore, in view of what has been stated in Bhajan Lal's case (supra), the proceedings before learned SDJM, stand quashed. The appeal is allowed.
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2008 (12) TMI 795 - CALCUTTA HIGH COURT
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... ... ..... ly stated about the concealment of the particulars of income or furnishing of inaccurate particulars of such income which has to be read “either” - “or” and on the given facts of this case would automatically come within the four corners of Section 271(1)(c) of the Act and we come to the conclusion that the appellant have failed to discharge their strict liability to furnish their true and correct particulars of accounts while filing the return. We are also of the opinion that the penalty under that provision is a civil liability and wilful concealment is not an essential ingredient for attracting civil liability as in the matter of prosecution under section 276C, as has been held by the Hon'ble Supreme Court. We also find that the mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities. We, therefore, accept the contention of Mr. Shome and dismiss the appeal answering the questions in the negative.
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2008 (12) TMI 794 - SUPREME COURT
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... ... ..... mall Cause Court and time was available till 31.3.2003 to equate them with the higher posts in the hierarchy. Such a benefit was conferred in pursuance of the order dated 21.3.2002 with effect from the date of making rules for which the last date stipulate was 31. 3.2003. Therefore Justice Gokhale Committee rightly recommended that the seniority of those appointed between 1.7.1996 and 31.3.2003 should be protected. All that the proviso to Rule 4(1) has done is to provide the protection to which those mentioned in the said proviso were entitled. There is nothing discriminating or illegal in the said proviso. Those in the category of Additional District Judges or Addl. Chief Judges of Small Cause Court have not made any legal right to be placed above those recruited to the higher post of District Judges and City Civil Court Judges between 1.7.1996 and 31.3.2003. 15. We therefore uphold the validity of the Rules. Consequently, the writ petition is dismissed as having no merits.
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2008 (12) TMI 793 - SUPREME COURT
Appointment of a sole Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 - interpretation of Article VI in the said agreement which according to the applicant contains the Arbitration Clause - existence of valid arbitration agreement between the parties or not - existence of live claim between the parties or not.
Whether there exists a valid arbitration agreement between the parties? - HELD THAT:- In the present case the parties did not agree upon any particular procedure for the appointment of the arbitrator. Clause VI provides that disputes arising out of the agreement which could not be settled amicably shall be finally settled in accordance with the provisions of the Act.
Whether the parties have agreed to resolve their disputes by arbitration or through conciliation? - HELD THAT:- What is required to be gathered is the intention of the parties from the surrounding circumstances including the conduct of the parties and the evidence such as exchange of correspondence between the parties. The respondent in none of its letters addressed to the applicant suggested that the dispute between the parties is required to be settled through conciliation and not by arbitration. In response to the applicant's letter invoking the arbitration clause the respondent merely objected to the names inter-alia contending the suggested arbitration would not be cost effective and the demand for arbitration itself was a premature one.
Is there any material available on record suggesting that the parties intended to resolve their disputes through conciliation on failure to settle the disputes amicably among themselves? - HELD THAT:- The arbitration clause states that the disputes arising out of the agreement which cannot be settled amicably to be finally settled in accordance with the Arbitration and Conciliation Act, 1996. Therefore, the provisions of the said Act will govern the appointment of Arbitrator, the reference of disputes and the entire process and procedure of arbitration from the stage of appointment of arbitration till the award is made and executed/given effect to. The provisions of the said Act would meet the requirement of checklist of the matters enumerated in the treatise. Once the parties agree for resolution of dispute in accordance with the Arbitration and Conciliation Act, 1996 the said Act will take care of the entire processes and procedure. Be that as it may when the specific intention of the parties is clearly evident from the arbitration clause the same cannot be treated as vague on the ground that it does not satisfy the suggested checklist of all matters to be considered while drafting an arbitration agreement.
Whether invocation of Article VI providing for arbitration is premature? - HELD THAT:- The exchange of letters between the parties undoubtedly discloses that attempts were made for an amicable settlement but without any result leaving no option but to invoke arbitration clause.
Whether there is any live issue between the parties? - HELD THAT:- It is amply clear from the facts as pleaded and as well as from the exchange of correspondence between the parties that there has not been any satisfaction recorded by the parties with respect to their claims. There has been no mutual satisfaction arrived at between the parties as regards the dispute in hand. The claims are obviously not barred by any limitation. It is thus clear that there is a live issue subsisting between the parties requiring its resolution.
Thus, a clear case is made out for appointment of an arbitrator to decide the disputes between the parties - application allowed.
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2008 (12) TMI 792 - MADRAS HIGH COURT
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... ... ..... rpose of Order 21 Rule 106 (3) CPC. But in the present case on hand, the petitioner is respondent in execution proceedings and he pleads that no summons was served on him and hence, the decree holders cannot take recourse to this decision. 31. In the light of the decisions of the Supreme Court and the various High Courts, it is held that the Court is not expected to record its reasons as to the satisfaction gained for the purpose mentioned in Rule 20 which is not mandatory and so, the order of substituted service passed by the executing Court is valid in the eye of law and it does not suffer from any illegality. The ex parte order passed against the petitioner need not be set aside under any circumstances and the proceedings are held to be in accordance with law. In such view of this matter, the order challenged is confirmed. The civil revision petition suffers dismissal. 32. In fine, the civil revision petition is dismissed. Consequently, connected M.P. is closed. No costs.
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2008 (12) TMI 791 - SUPREME COURT
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... ... ..... the parties having arrived at a settlement before the Lok Adalat, could not refuse to file a compromise petition in court, is also erroneous. If there was a final settlement before the Lok Adalat, there would have been an award and there was no need for the matter to come before the court for further hearing. If parties state that before the Lok Adalat that they will enter into an agreement and file it before the court, it only means that there was only a tentative settlement before the Lok Adalat. 16. In view of the above, the appeals are allowed. The impugned orders of the High Court are set aside. The second appeal is restored to the file of the High Court for being disposed of on merits in accordance with law. We request the Hon. Chief Justice to assign the appeal to some other learned Judge of the High Court. Whatever is stated above is not intended to be a reflection on the judicial integrity of the learned Judge, nor intended to impute any personal prejudice or bias.
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2008 (12) TMI 790 - SUPREME COURT
Appointment of arbitrator - Services Agreement as well as disputes between the parties, exist - Section 11(6) of the Arbitration and Conciliation Act, 1996.
HELD THAT:- The Services Agreement dated July 15, 2006 has not ceased to exist and the applicant is entitled to invoke the arbitration clause contained in that agreement. The application filed by the applicant is within the time prescribed by law. There is no manner of doubt that disputes are existing between the parties relating to the execution of the Services Agreement dated July 15, 2006, which are arbitrable. Under the circumstances, the instant application will have to be accepted.
Mr. Justice Arvind Sawant (Retd.), former Chief Justice, High Court of Kerala, is appointed as the sole arbitrator - application allowed.
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2008 (12) TMI 789 - DELHI HIGH COURT
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... ... ..... sue on the process of reasoning adopted by the Copyright Board for the reason we are satisfied that on the principle of comity the Copyright Board ought to have given due respect and weightage to a prior order passed by the Statutory Authority namely the Registrar of Trademarks. 13. Before concluding we may note that there is a factual error in the order passed by the Copyright Board. The error being a statement of fact recorded, which is erroneous, that the appellant has not obtained any registration of its wrapper under the Copyright Act. This is incorrect. 14. The petition filed by the appellant under Section 50 of the Copyright Act requires to be allowed. 15. The appeal is allowed. 16. Impugned order dated 29.6.1993 passed by the Copyright Board is set aside. Petition filed by the appellant under Section 50 is allowed with a direction to the Registrar of Copyright to expunge the copyright granted vide entry No.A-30585/80 in the name of the first respondent. 17. No costs.
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2008 (12) TMI 788 - GUJARAT HIGH COURT
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... ... ..... applied their mind before passing the impugned order. The Commissioner has therefore committed an error in setting aside the order of termination. 18. In any case the absenteeism is from the year 1990, prior to the Act came into force. The provisions of the Act will apply only during service. Therefore the contention of the petitioner cannot be accepted. 19. It is also required to be noted that the respondent was teacher and she remained absent unreasonably long period as a result of which the post was vacant and the petitioner was not able to appoint anybody. The ultimate sufferers were the students. In such situation, I am of the view that the competent authority was justified in dismissing the respondent after following the proper procedure. 20. In the premises aforesaid, the impugned order dated 13th August 2006 passed by the Commissioner of disabled persons in case No. 253 of 2007 is hereby quashed and set aside. Rule is made absolute accordingly. No order as to costs.
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2008 (12) TMI 787 - GUJARAT HIGH COURT
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... ... ..... Crores and ₹ 50 Lacs, deserve to be quashed and set aside. 23. For the reasons stated above, all the Special Civil Application Nos. 1 1469, 11471 and 16309 of 2006 are allowed with costs. The impugned orders dtd. 19/4/2006 passed below application Ex.28 in Special Civil Suit No. 69 of 2002, order dtd. 19/4/ 2006 passed below application Ex.22 in Special Civil Suit No. 38 of 2003 and order dtd. 12/6/2003 passed below application Ex.14 in Special Civil Suit No. 12 of 2003, by the learned 4th Additional Senior Civil Judge, Surat are hereby quashed and set aside and the respective petitioners -original defendants in the aforesaid suits are granted unconditional leave to defend the aforesaid suits. Rule is made absolute accordingly in each of the Special Civil Applications. In view of allowing the aforesaid Special Civil-Application Nos. 1 1469, 11471 and 16309 of 2006, Civil Revision Application Nos. 66 and 67 of 2007 deserve to be dismissed and are accordingly dismissed.
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2008 (12) TMI 786 - BOMBAY HIGH COURT
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... ... ..... s leave to withdraw the above Appeal. The Appeal is allowed to be withdrawn and dismissed as such. Permissible Court Fees be refunded to the Appellant, as per rules.
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2008 (12) TMI 785 - SECURITIES APPELLATE TRIBUNAL
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... ... ..... an, large number of entities were involved in executing circular trades and that each entity had a separate and distinct role to play. The instances cited by the learned counsel for the appellant pertains to the case of brokers who obviously play a different role from that of the investor. He also cited the case of one Jhugal Kishore Barasia who was an investor. He has been given lesser punishment because he has not been found to be a front entity of the promoter of Cyberspace and CCL which the appellant and the noticee company were. When the promoters of a company through their own front entities start manipulating their own scrip, the charge is more serious and those who act in concert with them are equally responsible. In the facts and circumstances of the case, we are of the view that the penalty imposed on the appellant is reasonable and does not call for any reduction. For the reasons recorded above, the appeal fails and the same is dismissed with no order as to costs.
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2008 (12) TMI 784 - KARNATAKA HIGH COURT
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... ... ..... ure and therefore the said sale could not have been confirmed by the learned Company Judge by passing the impugned order. 21. For the reasons aforesaid, we allow the appeal and set aside the impugned order dated 29.01.2007 passed by the learned Company Judge in CA No.18/2007 in CA. 178/06, Co.P.No.13/88. Further, we permit the KSFC to sell, in association with the Official Liquidator and KSIIDC, only the leasehold rights of the 1st respondent it liquidated company in respect of the Plot NO.6 In Sy.No.85 (that was allotted to It by the 2nd respondent KSIIÐC) in & accordance with law and also to sell all other movable properties of the 1st respondent Company including the plant and machinery, possession whereof was taken. The sale shall be in strict compliance with the provisions of Rule 273 of Companies (Court) Rules, 1959, by inviting tenders followed by public auction, and also further negotiations if necessary, so as to get.the best price for the assets Under sale.
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2008 (12) TMI 783 - HIGH COURT OF GUJARAT
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... ... ..... advance loan with interest and attracting provisions of the Act. Now, so far as the contention on behalf of the petitioners that condition under Section 35 of the Act has not been complied with has also no substance. In Para 14 of the complaint there are specific averments which are required under Section 35 of the Act. ( 10. ) In view of above facts and circumstances of the case and observations, it cannot be said that the petitioners have not advanced loan as contemplated under the provisions of the Act which requires licence under the Act. Admittedly, in the present case licence is not obtained and the petitioners are doing business of money -lending attracting provisions of Money -Lenders Act. Therefore, when the impugned complaint/criminal case has been filed same is not required to be quashed and set aside in exercise of powers under Section 482 of the Cr.P.C. For the reasons stated above, the application fails, deserves to be dismissed and accordingly it is dismissed.
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2008 (12) TMI 782 - SUPREME COURT
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... ... ..... in exercise of its jurisdiction to punish for contempt. Against such order, appeal would be maintainable." 27. As indicated hereinbefore, the matter is pending before a Three Judge Bench. In a case of this nature, this Court is also not precluded from taking into consideration the subsequent events. Having regard to the subsequent events, and in particular as, the decision as to the Committee's power to fix fees is justiciable or not is pending consideration, it would not be fair to allow the interim order passed by the learned Single Judge to continue; assuming that the Division Bench had no jurisdiction to entertain the appeal and consequently pass the interim order staying the operation of the order of the learned Single Judge. While, therefore, quashing both the orders, we would request the learned Single Judge to consider the merit of contempt matter only after disposal of the Writ Petition No.2117 (M/S) of 2006. 27. Appeal is disposed of accordingly. No costs.
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2008 (12) TMI 781 - BOMBAY HIGH COURT
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... ... ..... see’s own expenditure and it was a part and parcel of the profit-making activity of the assessee. The expenditure had a direct nexus with the assessee’s own business of asset management. There was no valid basis to treat the expenses in question as capital in character, as incurring of such expenditure did not result in any creation of any capital asset. No benefit of long and enduring nature had been derived by incurring the said expenditure. The Schemes under reference, and the business of the assessee is independent activities of each other. The expenses incurred by the assessee was an independent entity for conducting its own business of asset management could not be disallowed as capital expenses by linking them with the raising of funds for the Schemes of Mutual Funds, which are again independent entities." 3. In view of the above findings and fact, wise do not find any substantial question of law involved in the appeal, which is accordingly dismissed.
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2008 (12) TMI 780 - GUJARAT HIGH COURT
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... ... ..... ober, 2008. He has submitted that two consignments received then were allowed to be cleared on deposit of sum of ₹ 7,50,000/ . A similar order be made on this application. He has submitted that for the consignment in question, duty in the sum of ₹ 1,67,814/ is payable. On deposit of such amount in the registry of this Court, the opponents-authority be directed to issue necessary Concession Certificate. Learned advocate Ms. Shah appearing for the opponents has no objection if order to that extent is made on this Application. Application is allowed to the extent that on applicant's depositing the aforesaid sum of ₹ 1,67,814/ in the registry of this Court, the Opponent no. 4-Deputy Commissioner of Central Excise Division-III, Silvassa will issue necessary Concession Certificate to the applicant in respect of the goods imported under the Bill of Entry No. 766981 dated 23rd October, 2008 Annexure-A to the application . Registry will issue the writ forthwith.
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2008 (12) TMI 779 - SC ORDER
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... ... ..... nsel for the respondent had deposited in this Court ₹ 20,16,952/- as the demanded amount and for the balance amount he had furnished security. However, the said amount of ₹ 20,16,952/- remained lying with the Registry in non-interest bearing account as the appellant had not taken any steps to withdraw the said amount. In view of above, Registry is directed to release the aforesaid deposit of ₹ 20,16,952/- to the respondent along with the original title deeds of property furnished as security. Interlocutory application is accordingly disposed of.
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2008 (12) TMI 778 - SUPREME COURT
Maintainability of suit for enforcement of a contract on the part of the joint promisee - vendees and developers of the neighbouring plot fell apart, disputes and differences having arisen amongst the vendees inter se. - compromise between the vendors and his co-vendee - principle of novation of contract - High Court reversed the judgment and decree of the Additional Subordinate Judge -
HELD THAT:- Admittedly, the agreement was entered into on 23.4.1984. The contract was to be performed within a period of eight months. A joint tentative layout plan for both the lands was granted on 26.4.1984. Nothing has been placed on record to show as to when the disputes and differences between the vendees inter se began or when the disputes and differences between the developers of two plots started. It may be true that in terms of the agreement, draft layout was to be obtained in respect of Plot No. 36 but the very fact that the parties proceeded on the basis that all the lands would be developed together and steps having been taken in this behalf; it was too late for G. Srinivas Reddy to raise a fresh demand.
The ld trial judge applied the principle of novation of contract having regard to the subsequent conduct of the parties. The said principle, in our opinion, is applicable as against the said G. Srinivas Reddy. The agreement in question is not an agreement for sale simplicitor. The parties thereto were aware that only for the purpose of development of the said plot the agreement had been entered into. If that be so, the vendors were right in enforcing the terms of the said agreement/contract keeping in view the aforementioned purpose in mind. The joint promisee might not have rescinded the contract prior to the filing of the suit for damages against the defendants 1 to 3 but then when he filed the suit claiming refund of the amount of advance which he had paid by way of his share as also the damages, the contract stood rescinded so far as he was concerned. His claim might have been based on the purported breach of the terms of the contract on part of defendants No. 1 to 3, but they had arrived at a compromise. True it is that G. Srinivas Reddy filed a written statement in the suit filed by the Mohammed Kasim Ali. He expressed his intention to pay the amount of consideration for the entire land but evidently the suit did not go to trial. He did not insist therefor. When an application for settlement arrived at between Mohammed Kasim Ali and the defendant Nos.1 to 3 was filed, he did not object thereto. As he had appeared even before the High Court through counsel, it was obligatory on his part to oppose the said compromise between the vendors and his co-vendee.
It may, however, immediately be noticed that the court therein proceeded on the basis that the original contract was required to be enforced just as it was made even though one of their co-vendees refused to join them then and only on that basis the said principle was evolved.
Keeping in view the consent decree passed by a competent court of law in terms of consent entered into by and between Mohd. Kasim Ali and defendants 1 and 3, the agreement of sale in the same form could not have been enforced. The matter might have been different had the compromise not been recorded. A part of the contract stood rescinded; it has been worked out. We, however, must place on record that the terms of the compromise are not placed before us.
We are not concerned with the maintainability thereof. We would assume that the said suit was maintainable. But the fact that he did not choose to file a suit for specific performance of contract at the first instance speaks volumes about his conduct. The civil courts, in the matter of enforcement of an agreement to sell, exercise a discretionary jurisdiction. Discretionary jurisdiction albeit must be exercised judiciously and not arbitrarily or capriciously. A plaintiff is expected to approach the court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a court of law.
In Sanjana M. Wig (Ms.) v. Hindustan Petroleum Corpn. Ltd.[2005 (9) TMI 589 - SUPREME COURT] in regard to exercise of the discretionary jurisdiction, this Court held that the same depends upon the facts and circumstances of each case wherefor no hard and fast rule can be laid down.
We may notice that B.P. Jeevan Reddy, J. in K.S. Vidyanadam & ors. v. Vairavan [1997 (2) TMI 573 - SUPREME COURT] held that a new look is required to be given and the rigour of the rule is required to be relaxed by courts as regards the principle that time is not of the essence of the contract in case of immovable properties as when the said principle was evolved the prices and values were stable and inflation was unknown.
We think, it is not a case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. We refuse to interfere with the discretionary jurisdiction exercised by the High Court particularly when the ld trial court had not adverted to this aspect of the matter at all.
The appeals are dismissed with costs.
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2008 (12) TMI 777 - SUPREME COURT
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... ... ..... s against the order of the Delhi High Court dismissing CM No. 6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition the application for interim relief has become infructuous and the appeal against the order dismissing CM No. 6120 of 1993 must, therefore, be dismissed as infructuous." 7. Though the aforesaid case related to experience, the other essential characteristic of a joint venture has also been highlighted. 8. In that view of the matter the inevitable conclusion is that the view taken by the High Court that the appellant did not fulfil the eligibility criteria was not correct. The High Court was not justified in dismissing the writ petition. We direct the Evaluation Committee to consider the bid of the appellant alongwith two persons who had been selected and take a final decision. 9. The appeal is allowed to the aforesaid extent.
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