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Showing 21 to 40 of 697 Records
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2009 (10) TMI 978
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... ... ..... nswered by the Division Bench of this Court. Therefore, the Registrar Judicial is hereby directed to place this matter before the Hon'ble Chief Justice for referring the same to a Division Bench. Further, the order dt. 3.6.2009 passed in Crl.A. No. 142/2009 is being followed in respect of such appeals, by getting the same converted into Criminal Revision Petitions filed under Section 397 of Cr.P.C. Therefore, it is hereby made clear that if the appellants in such appeals are desirous of getting their appeals converted into revision petitions filed Under Section 397 Cr.P.C, they shall be at liberty to do so and get same disposed of and, such of the appellants in such appeals, as would feel that their appeals shall be disposed of by this Court as 'appeals' in exercise of its appellate jurisdiction only, they shall have to wait till a decision is taken by the Division Bench of this Court on this question of maintainability of such appeals Under Section 378(4) Cr.P.C.
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2009 (10) TMI 977
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... ... ..... applicant/the respondent had categorically stated that the applicant-company had not issued any dividend or bonus shares after 2004 till date. Learned senior counsel Shri Somayaji, submitted that the apex court in V.S. Krishnan (supra) considered in extenso the scope of Sections 397 and 398 and also in a number of judgments, whereby it is held that this Bench has discretionary powers under Section 402 of the Act to set right, remedy or put an end to such oppression. I do concur with the submissions of learned senior counsel. However, the facts in the present case are totally different and distinct. In view of the dispute to the title of shares of the respondent/the petitioner held in the applicant-company which are a subject-matter before the High Court of Madras in C.S. No. 454 of 2008, the company petition is not maintainable. In view of the foregoing reasons, the company application is allowed and the company petition is dismissed as not maintainable. No order as to costs.
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2009 (10) TMI 976
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... ... ..... relevant facts for setting up a dishonest defence by denying any liability. Therefore, it is a fit case for convicting the respondent for the offence punishable under Section 138 of the Act and sentencing her to proper punishment. 12. In view of the submissions made on behalf of the respondent that she was a woman in whose name the actual business might have been carried by other persons, it is deemed proper that the punishment is restricted to fine. Accordingly, the appeal is allowed, the impugned judgment dated 12.01.2009 in Criminal Appeal No. 48 of 2008 of learned Sessions Judge, is set aside and convicting the accused and modifying the punishment, she is sentenced to pay fine of ₹ 4,15,000/- and, in case of default in making payment thereof within one month, she shall undergo simple imprisonment for two years. In case the fine is paid as aforesaid, the amount of ₹ 4,00,000 therefrom shall be paid to the appellant under the provisions of Section 357 of Cr.P.C.
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2009 (10) TMI 975
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... ... ..... sequently, the application under Section 482 is allowed and impugned order is set aside. The learned magistrate concerned is directed to pass fresh order on the charge-sheet in criminal case No. 252 of 2009 (State v. Ankit) arising out of case crime No. 202 of 2008 of P.S. Gagal Hedi, District Saharanpur. 12. If approved by the Hon'ble Administrative Committee, let a circular letter be issued by the Registrar General directing all the judicial officers in Uttar Pradesh that printed proforma should not be used in passing judicial orders. 13. Registrar General is directed to send a copy of this order to Sri Talevar Singh, the then judicial magistrate Saharanpur through the District Judge concerned for his future guidance. 14. Let a copy of this order be sent by the office immediately to the District Judge Saharanpur, who will seize the blank printed proformas available in the Court of judicial magistrate, Court No. 20 Saharanpur or in any other Court and get them destroyed.
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2009 (10) TMI 974
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... ... ..... . Despite the fact that the respondent No. 2 has failed on almost all occasions in roping the petitioner in several complaints, the respondent No. 2 went on filing such complaints. The present case is registered in 1996 and in 2009 also, the same is pending. The marriage between the petitioner and the respondent No. 2 was broken in 1991. Divorce between them is upheld upto the level of High Court and there is no prima facie evidence establishing that the petitioner remarried with other woman at any point of time. Considering this factual background and the endeavour of the Court to render substantial justice between the parties, this Court is of the view that it would be a fruitless exercise to continue this proceeding against the petitioner. The Court, therefore, allows this petition and accordingly, Criminal Case No. 1903 of 1996 pending before the Court of learned Judicial Magistrate First Class, Vijapur and any order/orders passed therein are hereby quashed and set aside.
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2009 (10) TMI 973
Challenged the Order Of HC - transfer of publication and printing rights and machineries as also to create a lease in the buildings owned by the Trust - Interested persons seeking removal of trustees, scheme for management of the Trust, etc - M/s Karnataka Patrika (P) Ltd. (KPP) entered into an agreement with M/s Jaya Karnataka News and Printers (P) Ltd., (“JKNP”) for transfer of all its rights, interest and liabilities - loan transaction between JKNP and the respondent Bank -
(i) Whether the deceased surety and his legal representatives are liable to repay the disputed loan amount?
(ii) Whether the conduct of parties amounts to novation of the contract between the parties?
(iii) Whether the Lokashikshana Trust alone is responsible to repay the disputed loan amount being the beneficiary of the same?
(iv) Whether LST having benefited from the loan transaction disputed herein can be estopped from denying its liability?
HELD THAT:- If we acknowledge the fact that banks might be in a dominant position, there was absolutely no evidence to show that the Bank had in fact exercised its dominant power to force the surety into entering the contract that he ultimately did. If the appellant had been interested in insisting upon this matter then the least he could have done was to have entered the witness box and facilitated a method of clearing the air about it. Nor was there any explanation adduced at a later stage explaining the reason for the surety not entering evidence on his behalf. In the absence of any conclusive evidence to point to the entering of dates at a later stage, we cannot find any difficulty in rejecting the aforesaid contentions of the appellants.
Thus, the appellant guarantor cannot be held liable for the loan. But the learned counsel for the appellants had failed to produce any evidence on behalf of the appellant to satisfy the Court in support of his argument. Instead they contended that the Bank was in possession of such documents and was suppressing it. It is highly unimaginable that when parties are entering into contracts for the purpose of seriously conducting some businesses, that there would not be multiple copies of the executed agreement or at least one copy with either of the appellants. Thus, this contention of the appellants does not inspire any confidence. We, therefore, find no difficulty in rejecting the same.
In the present facts and circumstances, we, therefore, do not find any difficulty in affirming the concurrent findings of the High Court and of the trial court on the point that the agreement executed for the purpose of a continuing liability despite the variation of terms of the contract and in the absence of a specific written document by Basavaraj (since deceased) revoking the guarantee, the guarantee stands and the legal representatives of the deceased are liable to repay the loan.
As rightly held by the High Court at present, there is no need to look into the question as to which of the machineries were specifically hypothecated to the Bank. But the facts in this case are enough to show that a charge was in fact created on the said machinery by JKNP and which had reverted back to the original owner LST in the chain of circumstances. Nevertheless, there is enough evidence on record to show that there was indeed a hypothecation of the said machinery. Hence, we find no difficulty in rejecting the argument of the appellant. Accordingly, we affirm the decision of the High Court as the plea of JKNP regarding the novation of a contract was found to be unsustainable and, therefore, the liability of LST to pay the amount involved in the suit would not stand either except to the extent that LST holds any of the hypothecated machineries.
The learned counsel for the appellant submitted that JKNP was deprived of the possession, management and control of the suit property by an interim order of the court passed in OS and never regained the same. It was further contended that the loan obtained by the appellant was for and on behalf of the Trust and, hence, JKNP cannot be held liable for repayment of the same.
There is no doubt that LST being the beneficiary of the loan is liable to repay the loan amount u/s 70 of the Act; but the question here is whether it is alone responsible to pay the same. The courts below held that LST was liable for payment of the suit claim, but the learned counsel for the respondent claimed that once takeover of the Trust property was declared invalid, any liabilities incurred in the intervening period of time including actions by the State would also be unenforceable against it. However, the High Court failed to consider that LST was liable to repay the loan on the principle of Section 70 of the Contract Act inasmuch as it was LST who had been benefited from the loan, which JKNP had secured.
We, therefore, agree with the views expressed by the trial court and disapprove the finding of the High Court on this count. The Board of Trustees was competent to take any loan, which would be considered to be loan taken by the Trust. In such a case, any loan taken by the Administrator appointed by the State shall also be deemed as loan taken by the Trust and, hence, the Trust would be liable to repay the loan.
Bank has granted the loan for proper functioning of the Trust and on hypothecation of the properties of the Trust itself. From the very beginning, all the transactions which had been entered into had clearly been for the sake of the running of the publications of Samyukta Karnataka and other periodicals like Kasturi. In fact, first KPP and then JKNP, both private limited companies were formed for the sole purpose of the management of the running of the business of LST. These companies had been formed because LST was running losses and was unable to properly manage its affairs. Even the appointment of Receivers and the subsequent transactions entered into by the Administrators appointed under the LST Act had been for the purpose of furthering the business concerns of LST itself.
Thus, the appeal is allowed and the judgment of the High Court is set aside and that of the trial court is restored. There will be no order as to costs.
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2009 (10) TMI 972
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... ... ..... elayed payments of the petitioner's outstandings from the respondents. The only question that remains is the quantum of punishment to be awarded to the respondent for his conduct in the matter. Whilst this Court is inclined to be lenient, it cannot lose sight of the necessity to send a message to all litigants that undertakings given to the court from time to time are sacrosanct and cannot be treated lightly or ignored with impunity. 24. The respondent contemnor is well educated. He is a graduate and he has also completed his intermediate level in Chartered Accountancy. He is also stated to be the financial Director of the respondent company. He obviously holds a responsible position. 25. Under the circumstances and for all the aforesaid reasons, I hold the respondent guilty of contempt. He shall pay a fine of ₹ 22,000/-. The said amount shall be deposited in the common pool fund of the official liquidator within two weeks from today. 26. The matter is disposed off.
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2009 (10) TMI 971
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... ... ..... int a substitute arbitrator in the event of the originally appointed arbitrator refusing to act. 26. At the cost of repetition, we consider it necessary to observe that the agreements entered into between the appellant and respondent No. 1 do not contain a provision for appointment of a substitute arbitrator in case arbitrator appointed by either party was to decline to accept appointment or refuse to arbitrate in the matter. Therefore, respondent No. 1 cannot draw support from the ratio of the judgment in Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. (supra). 27. In the result the appeals are allowed and the orders of the learned designated Judge of the High Court appointing Shri Justice M.N. Chandurkar as the third arbitrator are set aside. Respondent No. 2 shall now proceed with the matter as the Sole Arbitrator and pass appropriate award in accordance with law within a period of three months from the date of receipt/production of copy of this order.
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2009 (10) TMI 970
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... ... ..... al. Hence, we are of the view that the concurrent findings of fact arrived at by the High Court and the trial court on the question of readiness and willingness to perform their part of obligation, so far as the appellants are concerned, cannot at all be interfered with. Accordingly, we are of the view that the High Court has rightly confirmed the concurrent findings of fact arrived at by the courts below on the question of readiness and willingness on the part of the appellants to complete the agreement for sale. 19. For the reasons aforesaid, we affirm the judgment of the High Court so far as the suit for specific performance of the contract for sale is concerned. Since no appeal has been filed by the respondent against the order regarding the forfeiture of the amount in question, we need not go into the question whether such forfeiture was proper or not. 22. For the reasons aforesaid, the appeal is allowed to the extent indicated above. There will be no order as to costs.
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2009 (10) TMI 969
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... ... ..... sing Finance is 47.68% and coupled with the control they exercise over the GIC Housing Finance is sufficient to bring them within the ambit of the definition of “Public Authority” as defined in Section 2(h) of the Right to Information Act, 2005. 40. In view of the above observations and findings, we decide that all the three respondents, LIC Housing Finance Limited, LIC Mutual Fund Asset Management Co. Limited and GIC Housing Finance Limited as “Public Authorities” under the RTI Act. All of them are, therefore, obliged to take all necessary steps to carry out their duties and responsibilities assigned by the Act. Insofar as these appeals/complaints are concerned, the Commission directs the respondents to provide the requested information to the concerned applicants within a period of three weeks from the date of receipt of this Decision Notice Announced on this the 28th day of October, 2009. Notice of this decision be given free of cost to the parties.
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2009 (10) TMI 968
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... ... ..... r law. However, petitioner has failed to show as to how its rights to recover alleged dues from respondent No. 2 have been affected. The above judgment is of no help to petitioner. None of the contentions raised by the petitioner have any force especially when petitioner has failed to show as to how its rights have been adversely affected by the impugned order dated 03.03.2008. 14. It may be noted that there is also a delay in filing the present petition. The impugned order is dated 03.03.2008 whereas the present petition was filed in November, 2008. Petitioner has not explained the said delay. Further petitioner has also concealed the fact of filing of O.A. against respondent No. 2 for recovery of its alleged dues before Debts Recovery Tribunal, Calcutta, which is a material fact. However, we are not dismissing the petition on the grounds of delay and concealment alone. 15. In view of above discussion, we find no merits in the present petition and the same stands dismissed.
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2009 (10) TMI 967
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... ... ..... ari Shankar K., Adv., Mr. Vikas singh Jangra, Adv., Mr. E.R. Kumar, Adv. Mr. Arjun Garg, Adv., Mr. Nitin Thukral, Adv. for M/S Parekh & Co., Advs. For the Respondent Mr. Gulam M. Vahanvati, AG, Mr. Vitthal B. Devkhile, Adv., Mr. Ravindra Keshavrao Adsure,Adv., Mr. Shekhar Naphade, Sr.Adv., Mr. RF. Nariman, Sr.Adv., O R D E R Leave granted. No stay. Liberty to mention after four weeks.
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2009 (10) TMI 966
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... ... ..... is applicable on all fours to the facts of this appeal and following the reason assigned in the said judgement, we hold that finding of the Tribunal confirming the finding of the Appellate Authority that the amount of ₹ 50,00,000/- received in consideration of non-competition agreement has to be treated as capital receipt is contrary to law and cannot be sustained. Therefore, the order of the Tribunal confirming the order passed by the Commissioner of Income Tax is to be set aside and order passed by the Assessing Officer has to be restored. Accordingly we answer the substantial question of law in favour of the revenue and against the assessee and pass the following order. Appeal is allowed. Order passed by the Income Tax Appellate Tribunal, Panaji Bench, Panaji in ITA No. 109/PUNJ/2004 confirming the order passed by the Appellate Authority dated 27.02.2004 in ITA N. 57/BGM/2002-03 is set aside and the order passed by the Assessing Officer dated 22.04.2002 is restored.
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2009 (10) TMI 965
Dishonor of Cheque - complaint filed u/s 138/142 of NI Act - cheques issued for the discharge of a liability of a debt arising out of the agreement - whether the petitioner issued the cheque in question towards the discharge of legally enforceable liability or debt which is an essential ingredient for invoking section 138 of the Negotiable Instrument Act, 1881? - time barred debt or not - HELD THAT:- The facts as detailed in the complaint show that the agreement between the parties was dated 14.6.2000. Pursuant to this agreement, the complainant had paid ₹ 30 lakhs to the accused which the accused had agreed to repay as the agreement had terminated. On 26.1.2005 i.e. four and half years after the termination of this agreement, the accused and his brother acknowledged to pay the balance amount in a short time. In this case this acknowledgment to pay the balance amount was in terms of the settlement dated 26.1.2005 i.e. much after the statutory period of three years; it also does not speak of the acknowledgement being in writing. It was thus not a valid acknowledgment. Cheques issued on 25.3.2005 and 30.4.2005 were clearly outside the period of limitation.
In Vijay Polymers Pvt. Ltd. & Anr.[2009 (4) TMI 1035 - DELHI HIGH COURT], relying upon the judgment of Hon’ble Supreme Court in Sasseriyil Joseph [2000 (9) TMI 1081 - KERALA HIGH COURT] a coordinate bench of this court had held that cheques issued on a time barred debt would not fall within the definition of ‘legally enforceable debt’ which is the essential requirement for a complaint u/s 138 of NI Act; the extended meaning of debt or liability has been explained in the Explanation to the Section which means a legally enforceable debt or liability. The existence of a legally recoverable debt is also not a matter of presumption as has been held by the Supreme Court in Krishna Janardhan Bhat [2008 (1) TMI 827 - SUPREME COURT].
The two cheques which are the subject matter of this complaint were for the discharge of a liability of a debt arising out of the agreement dated 14.6.2000 which debt had become time barred. This debt was not a legally enforceable debt within the meaning of Section 138 Explanation of the NI Act. Complaint and all proceedings emanating therefrom are accordingly quashed.
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2009 (10) TMI 964
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... ... ..... tled to compensation. This Court only stayed the operation of the direction of the High Court to the extent that the units of the members of the appellant Association would be closed on 31st July, 2007. The said interim order has been extended from time to time. None of the other directions have been interfered with. A period of more than two and a half year has been passed. Many steps have been taken but the Association has to ensure the compliance of the orders passed by the High Court fully and in order to do, it is desirable that the Association be giving three months time to ensure compliance of directions to make the CETPs functional and pay the balance amount for cleaning the dam and river and meet the compensation to the adversely affected persons within a period of three months from today. The Pollution Control Board is directed to ensure that no pollution is caused, giving strict adherence, to the statutory provisions. 28. The appeals stand disposed of accordingly.
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2009 (10) TMI 963
Application seeking amendment under Order VI Rule 17 - consequent to the subsequent Urban Land (Ceiling & Regulation) Repeal Act, 1999 - respondents are to be treated as trespassers and unauthorized occupants of the building - Suit Originally framed, only for refund of sale consideration and alternatively for possession - recommendation of Justice Malimath Committee - respondents aggrieved by the order of the trial court for allowing application preferred a writ petition - appellant had originally sought possession of the entire property from the respondents, by giving up such a claim, now the appellant is trying to introduce a new case which would certainly affect the rights of the respondents when the appellant had earlier requested the court to pass a decree for possession of the entire property -
High Court held that any such amendment which changes the entire character of the plaint cannot be permitted and that too after a lapse of four years after the institution of the suit. The High Court has set aside the order of the trial court which allowed the amendment under Order VI Rule 17 CPC.
HELD THAT:- In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases.
It may be pertinent to mention that with a view to avoid delay and to ensure expeditious disposal of suits, Rule 17 was deleted on the recommendation of Justice Malimath Committee by the Code of Civil Procedure (Amendment) Act, 1999 but because of public uproar, it was revived. Justice C.K. Thakker, an eminent former Judge of this Court in his book on Code of Civil Procedure (2005 Edition) incorporated this information while dealing with the object of amendment.
The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases.
Dismissing the appeal and confirming the order of the High Court, this Court observed that the discretionary power of amendment was not exercised by the High Court on wrong principles. There was merely a defect in the pleading which was removed by the amendment. The quality and quantity of the reliefs sought remained the same. Since the amendment did not introduce a new case, the defendant was not taken by surprise.
The Court further observed that since there was no addition to the averments or relief, it was not possible to uphold the contention of the plaintiff that by conversion of written statement into a plaint in a cross-suit, a fresh claim was made or a new relief was sought. To the facts of the present case, therefore, the decisions holding that amendments could not ordinarily be allowed beyond the period of limitation and the limited exceptions to that rule have no application.
WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY:- The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.
NO PREJUDICE OR INJUSTICE TO OTHER PARTY:- The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.
The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.
COSTS:- The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs.
We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.
When we apply these parameters to the present case, then the application for amendment deserves to be dismissed with costs of ₹ 1,00,000/- (Rupees One Lakh) because the respondents were compelled to oppose the amendment application before different Courts. This appeal being devoid of any merit is accordingly dismissed with costs.
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2009 (10) TMI 962
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... ... ..... he definition. Therefore, the present grievance raised by the appellant is bereft of bona fides. Yet another grievance raised by the appellant is that they were statutorily required to maintain greenery on 33 of the factory premises, but this aspect was not considered. The above aspect turned out to be irrelevant in a situation where the subject service did not pass the test of the main part of the definition of the ‘input service’. The third aspect stated in the present application pertains to expenses incurred by them towards garden maintenance. This aspect was also irrelevant, given the findings recorded in para 3 of the final-order. Certain issues were remanded to the original authority and, therefore, it was not necessary for the Tribunal to examine the penalty-related issue. Such issues are open to be considered by the said authority. 4. Having found no error, let alone apparent error, in the final order, I dismiss this application. (Dictated in Court)
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2009 (10) TMI 961
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... ... ..... s being in possession of the appellants. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh. 7. This is apart from the fact that despite service of notice, the complainant neither appeared before this Court nor engaged any counsel to represent her. Under the circumstances we are of the opinion that the judgment of the High Court deserves to be set aside. It is, accordingly, set aside and the order of the learned Magistrate taking cognizance is quashed. The complaint is quashed under Section 482 Cr.P.C. 8. The appeal is allowed accordingly.
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2009 (10) TMI 960
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... ... ..... mark 'PRINCE' and pending disposal of the suit shall file the same every three months. It shall also publish public notices in 'Hindustan Times', 'The Hindu' and 'The Pioneer' within six weeks informing prospective buyers of the relevant goods that the goods marketed by it under the trademark 'PRINCE' have no connection with the goods marketed by the plaintiff under the same trademark. Needless to state that in the event of its failure to comply with this order, the necessary consequences will follow. The interim orders dated 02.06.2006 are vacated with the aforesaid directions. IA Nos. 6889/2006 and 7705/2006 stand disposed of. CS(OS) 1261/2006 List the case for framing of issues before the Roster Bench on 16th November, 2009 and for fixing dates for recording of evidence before the learned Joint Registrar on 23rd November, 2009. Parties shall file their list of witnesses before the said date and take steps for summoning of witnesses.
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2009 (10) TMI 959
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... ... ..... for legal costs of advocates or are immediately payable within a period of four weeks from today, in terms of the commitments already made with respect to these proceedings under Section 34 of the Act. In terms of such affidavit filed by the respondent company, and duly supported by the certificate of the advocates of receipt of fees such costs will be the costs of these proceedings provided the needful is done in four weeks from today. In awarding of costs I have taken into account the benefit on account of reduction in the rate of interest having been given to the objector. I have also for the purposes of costs taken into account the value of the claims involved and the financial capacity of the parties. I may note that on the issue of costs, I am supported by a decision of a learned Single Judge of this court (Madan Lokur, J) in the case reported as Austin Nichols & Co. v. Arvind Behl 2006 (32) PTC 133. 26. With these observations, the objection petition is dismissed.
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