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Showing 41 to 60 of 737 Records
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2008 (4) TMI 793
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... ... ..... before the Company Law Board under Sections 397 and 398 of the Companies Act, 1956 and that the Board of the said Company shall not take any substantive decision on the finances of the said Company without prior permission of the arbitral tribunal before whom the disputes between the parties are pending in terms of agreement dated 31.03.2006. Mr.Bakhru, learned counsel appearing on behalf of respondent Bakshi Group , says that his client shall not oppose the withdrawal of the company petition pending before the Company Law Board. Both the parties have further agreed that they shall approach the arbitral tribunal for any interim relief, if felt necessary from time to time. The functioning of the respondent no.1 company shall be subject to the orders to be passed by the arbitral tribunal from time to time. In view of the above, this appeal is not pressed by the learned Senior Counsel appearing on behalf of the appellant for any further relief. This appeal stands disposed of .
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2008 (4) TMI 792
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... ... ..... hat there is no substantial question of law is involved to admit this appeal. The appeal is therefore dismissed. For the foregoing reasons the application being G.A. No. 233 of 2008 is also dismissed. All parties concerned are to act on a signed copy of the minutes of this order on the usual undertakings. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2008 (4) TMI 791
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... ... ..... secured creditor has communicated reasons for rejection of representation, if any, of the borrower. If all these things are fulfilled by the secured creditor, CMM/DM will not be in a position to refuse assistance under Section 14(1) to the secured creditor. 11. We, therefore, dispose of the writ petitions, by confirming refusal by CJM, Aurangabad, of assistance under Section 14(1), not because the petitioner-creditor was not armed with a decree of a competent court, but because the CJM does not have power to render such assistance. We clarify that it will be open for the petitioner to approach the DM and refusal of assistance under Section 14(1) of the Securitization Act, by CJM, Aurangabad, will not be an impediment in DM providing such assistance to the petitioner/secured creditor upon demonstration by the secured creditor, of fulfilment of requirement as under Section 13(2) and 13(3-A) of the Act. 12. Writ Petitions are disposed of and rule made absolute, in above terms.
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2008 (4) TMI 790
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... ... ..... Ltd. (Transferee Company). 3. The applicant Company has only two shareholders as certified by the Chartered Accountant of the Company. Both the shareholders have given their consent for the scheme and the same is to be found at Annexure “H” series. The applicant company had two secured creditors and several unsecured creditors as certified by the Chartered Accountant at Annexure “J”. Out of the unsecured creditors,90 of the total value of the unsecured creditors and the two secured creditors have given their consent to the Scheme of Amalgamation. Once again, they are to be found at Annexure “H” series. 4. Having regards to the fact that the shareholders, secured creditors and unsecured creditors have given their consent for the Scheme of Amalgamation, meeting of the shareholders, secured creditors and the unsecured creditors are dispensed with. Company application stand disposed of accordingly. Company petition to be filed within 30 days.
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2008 (4) TMI 789
Dishonor of Cheque u/s 138 of the Negotiable Instruments Act - legally enforceable debt or not - Permission to lead further defence evidence and forward the cheque in dispute to the Hand Writing Expert for opinion - grant of opportunity to the petitioner to adduce evidence by way of rebuttal - rebuttal of presumption raised u/s 118 (a) or 139 of NI Act - discharge of burden to prove - fair trial - HELD THAT:- When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of Sub-section (2) of Section 243 of the CrPC.
It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of Sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.
The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide.
Ms. Suri, however, pointed out that the application of the appellant being one under Section 293 of the CrPC was rightly rejected. It is now a well settled principle of law that non-mentioning or wrong mentioning of provision of law would not be of any relevance, if the Court had the requisite jurisdiction to pass an order.
Therefore, the impugned judgment cannot be sustained. It is set aside accordingly with the aforementioned directions.
Appeal is allowed.
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2008 (4) TMI 788
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... ... ..... xtension of time to file a written statement. In that application, it was indicated that the defendants proposed to, inter alia, take the plea of jurisdiction but were not doing so because it may have an impact on the settlement talks. The learned Counsel for the defendants also submitted that they had not given up the plea of jurisdiction in CS(OS) 2026/2006. It is true that the defendant No. 1 could waive the requirement under the jurisdiction clause that the suit be filed by Moser Baer India Ltd. only at the Hague. Waiver being contractual could alter the jurisdiction clause contained in the DPLAs. But, waiver would have to be established. And, that is an issue which may require resolution in CS(OS) 2026/2006. In the present suit, there is no waiver of the jurisdiction clause, the defendants having objected to the territorial jurisdiction of this Court at the very outset. 16. For all the above reasons, this application is liable to be dismissed. It is ordered accordingly.
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2008 (4) TMI 787
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... ... ..... ;Voluntary Consumer Association" registered under the Companies Act, 1956 or under any other law for the time being in force and was not entitled to file a complaint about unfair trade practice to represent other consumers. Having said so, it is not understandable as to how the National Commission even proceeded to deal with the complaint. It also noted that the complainant had not moved any application or obtained any permission under Section 13(6) of the Act and/or no such permission was granted. In the circumstances, it was not permissible for the complainant to represent others. The complainant's case right through was that he was filing a petition in public interest. After having recorded that the complaint in that manner was not entertainable, the National Commission could not have passed the impugned order. 20. Looked at from any angle, the orders of the National Commission are indefensible and are set aside. The appeals are allowed with no order as to costs.
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2008 (4) TMI 786
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... ... ..... gets another extended period of limitation commencing from the date of service of the notice of the appeal enabling him putting in issue for consideration of the appellate court the same grounds which he could have otherwise done by way of filing an appeal. This extended period of limitation commences from the date of service of the notice of appeal and such notice ought to be in a valid or competent appeal. 14. In similar circumstances, in the case of Bhagwna v. Tara Chand and Ors. (2008)150 P.L.R. 73, (CM. No. 11634-C of 2007 in R.S.A. No. 4122 of 2007) decided on 18.01.2008, condonation of delay in refiling the appeal has been dismissed. 15. In view of the above, present application for condonation of delay of 753 days in re-filing the appeal, is dismissed. 16. In view of the dismissal of the application for condonation of delay in re-filing the appeal, the application for condonation of 14 days delay in originally filing the appeal and the main appeal are also dismissed.
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2008 (4) TMI 785
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... ... ..... n otherwise also, the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is not ousted to correct the illegality or irregularity in the order passed by the learned Sessions Judge. The judgments relied upon by the learned counsel for the respondent are also to be treated per incuriam in view of the law laid down by the Hon'ble Supreme Court in the case of Major General A.S. Gauraya and another (supra) holding that the trial Court has no inherent power under the Code of Criminal Procedure and, therefore, in exercise of inherent power, it was not open to the learned trial Court to have allowed the amendment of the complaint as ordered by the learned Sessions Judge. The order passed by the learned trial Court was in consonance with the law which did not call for interference by the learned Sessions Judge. Consequently, this petition is allowed. The order passed by the learned Sessions Judge is set aside and that of the trial Court is restored.
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2008 (4) TMI 784
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... ... ..... that the learned Trial Judge erred in law in passing a decree for eviction on the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. 23. We, thus, set aside the judgment and decree on the ground that the decree of reasonable requirement now cannot be enjoyed by the grandson of the original plaintiff, as indicated above and, at the same time, the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act has not been established. 24. We, further, make it clear that we have not gone into the question of requirement of the grandson of the original plaintiff and dismissal of the appeal will not stand in the way of the said grandson in filing a fresh suit on such ground. In view of the disposal of the appeal itself, we dismiss the application for vacating the stay filed by the respondent. 25. In the facts and circumstances, there will be, however, no order as to costs. R.N. Banerjee, J. 26. I agree.
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2008 (4) TMI 783
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... ... ..... which will not prejudice the contesting respondents, who will have adequate opportunity to meet the case of the petitioners, as amended in order to avoid multiplicity of judicial proceedings as held in Estralla Rubber v. Dass Estate (P) Ltd. (Supra). All the other averment sought to be incorporated by way of replacement of several of the existing paragraphs, through the mechanism of amendment application, being contrary to the principles governing amendment of pleadings, as elucidated in several of the decisions, cited supra, are not permissible. 15. The petitioners, in the light of my aforesaid conclusions are directed to file the amended petition only in regard to the events which took place subsequent to the company petition in terms of this order by 09.05.2008 and the respondents are at liberty to file their additional reply with reference to the amended company petition by 30.05.2008. The matter will be heard on a date IO be notified in due course. Ordered accordingly.
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2008 (4) TMI 782
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... ... ..... vil Appeal is dismissed on the ground of delay of 447 days.
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2008 (4) TMI 781
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... ... ..... nst the appellant. In the instant case the premium paid is established from evidence on record which has raised certain questions which have not been answered by the appellant which leads to unmistaken conclusion that the appellant has rightly been held guilty by the adjudicating officer. I find no force in the argument of the appellant that foreign exchange was in fact received in the country and that there was no loss of foreign exchange and he was entitled to the Immunity Scheme, 1991. 14. However, having considered the fact that there is a single transaction alleged against the appellant, I am of the view that the amount of penalty imposed against the appellant is excessive which is liable to be reduced from ₹ 60,000/- to ₹ 30,000/-. The appeal is, therefore, liable to be partly allowed. An order is passed accordingly. The amount of penalty is reduced from ₹ 60,000/- to ₹ 30,000/-. The pre-deposited amount may be appropriated towards penalty.
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2008 (4) TMI 780
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... ... ..... ation and in the absence of specific denial of the averments made in the affidavit that these documents have been relied upon, in our considered view, the failure to supply the above documents, in spite of the request made on behalf of the detenu, has deprived the valuable right of the detenu to make a further representation to the Advisory Board and on this ground alone, the detention order is liable to be quashed. For all the above reasons, the impugned order of detention dated 16.7.2007 made in G.O.SR.I/530-5/07 Public (SC) Department is quashed and H.C.P.No.1208 of 2007 is allowed. The detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case. In view of the above, the impugned order of detention dated 16.7.2007 made in G.O.SR.I/530-6/07 Public (SC) Department is also quashed and H.C.P.No.1209 of 2007 is allowed. The detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case.
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2008 (4) TMI 779
Fake encounter - charged with serious and heinous offences - Cancellation of bail granted by the High Court - Whether the exercise of jurisdiction by the High Court Under Section 439(2) of the Code justified? - expression ’ban’ on the grant of bail in serious offences - FIR registered with ATS Police Station for the offences punishable under Sections 302, 364, 365, 368, 193, 197, 201, 120B, 420, 342 read with Section 34 of the Indian Penal Code, 1860 (IPC) and under Sections 25 (1)(b)(a) and 27 of the Arms Act, 1950 (Arms Act).
HELD THAT:- As is evident from the rival stands one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. Though it was urged by learned counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope of filing an appeal against the order of grant of bail. Under the scheme of the Code the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Sessions, or the High Court.
The High Court also erroneously held that there was a ban in granting bail in heinous crime.
Though the High Court appears to have used the expression ’ban’ on the grant of bail in serious offences, actually it is referable to the decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr.[2004 (3) TMI 763 - SUPREME COURT]. It was also noted that the conditions laid down under Section 437 (1)(i) are sine qua non for granting bail even under Section 439 of the Code.
Even though the re-appreciation of the evidence as done by the Court granting bail is to be avoided the Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail.
The perversity as highlighted in Puran’s case [2001 (5) TMI 971 - SUPREME COURT OF INDIA] can also flow from the fact that as noted irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature.
In the instant case, the trial Court seems to have been swayed by the fact that Sohrabuddin, husband of Kausarbi had shady reputation and criminal antecedents. That was not certainly a factor which was to be considered while granting bail. It was nature of the acts which ought to have been considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was hardened criminal. That certainly is not a factor which can be taken into account. Another significant factor which was highlighted by the State before the High Court was that an FIR allegedly was filed to divert attention from the fake encounter. The same was not lodged by the Gujarat Police.
Once it is found that bail was granted on untenable grounds, same can be cancelled. The stand that there was no supervening circumstance has no relevance in such a case.
We have only highlighted the aspects to show that irrelevant materials have been taken into account and/or relevant materials have been kept out of consideration. That being so, the order of granting bail to the appellant was certainly vulnerable. The order of the High Court does not suffer from any infirmity to warrant interference.
The appeal is dismissed. However, it is made clear that whatever observations have been made are only to decide the question of grant of bail and shall not be treated to be expressing any opinion on merits. The case relating to acceptability or otherwise of the evidence is the subject matter for the trial Court.
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2008 (4) TMI 778
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... ... ..... Reddy, JJ. ORDER Appeal dismissed.
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2008 (4) TMI 777
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... ... ..... d counsel for the petitioner says that within a period of six months, 72 mono-chrome monitor tubes were re-exported and the balance were re-exported thereafter. 6. From the record available with us, it appears that the petitioner did not ask for extension of time within the 6 months period. Later a letter dated 14th February, 2008 which is well beyond the period of six months postulated by the bank guarantee was sent by the petitioner for extension of time. 7. The law with regard to invocation of bank guarantees is quite clear and very strict. There is no allegation that any kind of fraud has been committed nor is there any allegation that the invocation is not in terms of the bank guarantee itself. The petitioner did not take steps to have the re-export period extended within the 6 months period allowed to it. 8. Under the circumstances and taking into consideration all the above facts, we are not inclined to interfere. 9. The writ petition is dismissed.
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2008 (4) TMI 776
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... ... ..... e the ratio of 14 1. If the Government intends to change the ratio, it may do so. It may also provide for separate rules providing for maintenance of two different cadres at all levels. But what is impermissible is laying down a condition subsequent to adoption of a policy decision which defeats the object and purport thereof. 32. A statutory rule, it is a trite law, must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. The Legislature, it is presumed, would be a reasonable one. Indisputably, the subordinate legislation may reflect the experience of the Rule maker, but the same must be capable of being taken to a logical conclusion. 33. Applying the said principle, we are of the opinion that the impugned Government Orders cannot be sustained. They are set aside accordingly. Appeals are allowed with costs. Costs assessed at ₹ 25,000/- (Rupees twenty five thousand only.)
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2008 (4) TMI 775
Exclusion of creamy layer - Validity of 93rd Amendment to the Constitution of India - whether Article 15(5) would be unconstitutional on the ground that it violates the basic structure of the Constitution by imposing reservation in respect of private unaided educational institutions - members belonging to other backward classes who get selected in the open competition field on the basis of their own merit should be counted against the 27% quota reserved for other backward classes under an enactment enabled by Article 15(5) of the Constitution, for consideration in an appropriate case - HELD THAT:- This Court has held that clause (4) of Article 15 is neither an exception nor a proviso to clause (1) of Article 15. Clause (4) has been considered to be an instance of classification inherent in clause (1) and an emphatic restatement of the principle implicit in clause (1) of Article 15 (see : State of Kerala v. N.M. Thomas [1975 (9) TMI 176 - SUPREME COURT]. Clauses (1) and (2) of Article 15 bar discrimination.
Clause (5) was added by Constitution (Ninety-third Amendment) Act, 2005. Each of these three enabling provisions operate independent of each other. The opening words ’Nothing in this article’ occurring in each of these clauses (3), (4) and (5) obviously refer to clauses (1) and (2) of Art. 15 and not to the other enabling clauses. Clauses (3), (4) and (5) of Article 15 are not to be read as being in conflict with each other, or prevailing over each other, but are to be read harmoniously.
The need for exclusion of creamy layer - Section 3 of Act 5 of 2007 mandates reservation of seats in central educational institutions for other backward classes to an extent of 27%. It is contended that the term ’backward classes’ in Article 16(4) is much wider than ’socially and educationally backward classes of citizens’ occurring in clauses (4) and (5) of Article 15.
Article 15(4) provides that nothing in that Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward class of citizens or for Scheduled Castes and Scheduled Tribes.
It is submitted that as clause (5) of Article 15 does not override or exclude Article 29(2), any law made in exercise of power under Article 15(5) will be subject to Article 29(2), and consequently there cannot be any affirmative action by way of reservation on the ground of caste alone.
The decision of nine Judges in Indra Sawhney v. Union of India [1992 (11) TMI 277 - SUPREME COURT]. This Court held that the use of the word ’class’ in Article 16(4) refers to social class, and that reservation under Article 16(4) is in favour of a backward class and not a caste. It held that ’ backward class of citizens’ contemplated in Article 16(4) is not the same as ’socially and educationally backward classes’ referred to in Article 15(4), but much wider. It held that there was no reason to qualify or restrict the meaning of the expression ’backward class of citizens’ by saying that it means only those other backward classes who are situated similarly to Scheduled Castes and/or Scheduled Tribes.
The need for exclusion of creamy layer is reiterated in the subsequent decisions of this Court in Indra Sawhney v. Union of India (II) [1996 (11) TMI 487 - SUPREME COURT], M. Nagaraj v. Union of India [2006 (10) TMI 420 - SUPREME COURT]. When Indra Sawhney has held that creamy layer should be excluded for purposes of Article 16(4), dealing with ’backward class’ which is much wider than ’socially and educationally backward class’ occurring in Article 15(4) and (5), it goes without saying that without the removal of creamy layer there cannot be a socially and educationally backward class. Therefore when a caste is identified as a socially and educationally backward caste, it becomes a ’socially and educationally backward class’ only when it sheds its creamy layer.
Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative action Constitution seeks to remove the difference in status on the basis of caste. When the differences in status among castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society.
Agree that the petitions shall stand disposed of in the manner stated by the learned Chief Justice.
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2008 (4) TMI 774
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... ... ..... so noted that the difference between the tare weight and gross weight represents only 1 of the total quantity of cement cleared during the period in dispute by the appellants and that such variations may arise on account of variation between two weighbridges, variation in the method of weighment etc. No satisfactory or acceptable arguments have been raised to dislodge the above findings. We, therefore, see no reason to interfere with the order of the Commissioner (Appeals). We accordingly uphold the same and reject the appeal.” It may be noticed from the above reproduced portion, that in that case there was a weight difference of 1 , still the Tribunal held in favour of the assessee. 7. Respectfully following the decision of the division bench of the Tribunal in Sagar Cements and in the facts and circumstances of the case, I find that the impugned order does not suffer from any infirmity and is upheld. 8. The appeal filed by the revenue is rejected. (Dictated in Court)
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