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2009 (4) TMI 1063
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... ... ..... the basis of admitted facts. The admitted facts disclose that the petitioner and respondent No. 3 were acceptors of the bills of exchange and admittedly were not members of respondent No. 1 bank. In the circumstances, the petitioner cannot be prevented from raising the dispute of jurisdiction for the first time in this Court. 13. Learned Counsel for respondent No. 1 stated that Section 84 of the Act only applies in respect of reference of a dispute and once the dispute is referred, the arbitrator gets the jurisdiction to decide. The submission is misconceived. The Central Registrar did not have the jurisdiction to refer the dispute between the respondent No. 1 and the nonmembers to the arbitration. The arbitrator lacked the jurisdiction and could not have passed the award against the respondent No. 3 or the petitioner. 14. For these reasons, the petition succeeds. The impugned award is set aside. In the facts and circumstances, the parties shall bear and pay their own costs.
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2009 (4) TMI 1062
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... ... ..... e involved. 39. The judgments referred to by Mr. Tankha regarding the tendency to convert civil disputes into criminal cases to pressurize the accused, are unimpeachable, but the same will not apply to the facts of this case where a conspiracy to cheat the Bank is alleged. 40. We are, therefore, inclined to accept Mr. Srivastava's submissions that the High Court had in revision erroneously quashed the charges framed against the respondents. Consequently, the orders dated 17th March, 2007, passed by the High Court in Crl. Revision No. 1303 of 2006 and Crl. Revision No. 36 of 2007, impugned in these two appeals are set aside and the charges framed by the Trial Court against the respondents are restored. The appeals are, accordingly, disposed of with a direction to the Trial Court to proceed with the trial. We make it clear that the views expressed in this judgment are prima facie in nature for the disposal of these appeals only and should not influence the trial in any way.
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2009 (4) TMI 1061
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... ... ..... demand duty. The show cause will be given within two weeks from today. Reply thereto will be filed within four weeks by the assessee. It is made clear that the Commissioner will decide the matter on merits. The assessee will not raise the plea of limitation. Parties to maintain the status quo as of date till the Commissioner decides the matter in accordance with law. Commissioner is directed to dispose of the matter within three months. Special Leave Petition is disposed of accordingly.
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2009 (4) TMI 1060
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... ... ..... es paid by the Coal Companies to the Board. According to the writ petitioners, if the said amount has been shown in the accounts the rate of fuel surcharge would have been different. The High Court noticed that this aspect of the matter has been dealt with by the Board in its rejoinder affidavit wherein it has been stated that as against the total claim of Rs. 356.20 crores on account of loss due to grade slippage, short supply of coal, supply of stones etc. the Coal Companies have agreed to pay Rs. 100 crores in full and final settlement of the claim. But though such decision was taken on 30.8.1998 actual payment has not been made till date. High Court observed that payment of the amount would be relevant consideration while calculating the rate of fuel surcharge for the year 1998-99 and not 1997-98. 46. We direct that the actuals be worked out within three months from today. The adjustment of Rs. 100 crores be worked out accordingly. The appeals are accordingly disposed of.
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2009 (4) TMI 1059
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... ... ..... of the assessee and the date of hearing was also announced in the open court. In spite off this, the assessee has failed to appear on the date of hearing. Hence we proceed to decide this petition ex-parte, qua the assessee. 3. We heard the Ld DR and also perused the record. On a careful perusal of the order dated 17-10-2008 referred supra, we do not find any mistake apparent from record. In view of the above, we dismiss the miscellaneous petition filed by the assessee. Pronounced accordingly in the open court on 17-04-2009.
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2009 (4) TMI 1058
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... ... ..... e following Delay condoned. This Special Leave Petition is against an interim order. Hence, we see no reason to interfere. However, we are requesting the High Court to take up the matter for final hearing on 21st April, 2009, which is already a fixed date, subject to over-night part-heard, as the matter is of an important nature. The views expressed by the High Court in the impugned order are to be treated as tentative. Dismissed.
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2009 (4) TMI 1057
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... ... ..... rity in its order declined to award interest to the first respondent for his failure to vacate the residential accommodation and such order has not been challenged by him, this Court is unable to order that the amount of gratuity should be released in favour of the first respondent with interest from the date of his retirement. However, the Controlling Authority is directed to release the amount of gratuity that has been deposited with it at the time of preferring appeal in favour of the first respondent as early as possible but not later than four weeks from date of receipt of a copy of this judgment. 51. Since the first respondent has not appeared in this proceedings, office is directed to forward a copy of this judgment to the Controlling Authority at the earliest for compliance. 52. There shall be no order as to costs. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefore.
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2009 (4) TMI 1056
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... ... ..... concerned, there cannot be any doubt whatsoever that the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is limited. It is ordinarily for the learned Magistrate to consider as to whether a case for grant of bail has been made out or not, the High Court, therefore, may not be correct in observing, "I am quite convinced that valid grounds exist for granting bail to the petitioners." Similarly, the High Court should not have, for all intent and purport, issued the direction for grant of exemption from personal appearance. Such a matter undoubtedly shall be left for the consideration before the learned Magistrate. We are sure that the Magistrate would exercise his jurisdiction in a fair and judicious manner. The impugned directions are set aside and the maters are remitted to the High court for consideration of the application filed before it by the parties afresh on merit. 32. The appeals are disposed of to the aforementioned extent.
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2009 (4) TMI 1055
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... ... ..... Amey Nargolkar, Adv., Mr. B.V. Balaram Das, Adv. For the Respondent Mr. Ajay Vohra, Adv., Ms. Kavita Jha, Adv., Mr. Sandeep S. Karhail, Adv. ORDER Delay condoned. Dismissed.
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2009 (4) TMI 1054
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... ... ..... ber 2000 at Exh.P-5 is not signed by accused no. 1 who according to the applicant is the proprietor or partner of Shah Enterprises. The letter has been sent by accused No.2 in his capacity as constituted attorney of Shah Agencies. Therefore, the letter cannot be termed as a document under which the liability of Shah Agencies was specifically agreed to be taken over by the Shah Enterprises or by the accused nos.1 and 2. 11. If this is the case made out by the applicant, it is very difficult to find fault with the order of acquittal passed by the learned Magistrate. Hence, no case is made out for grant of leave. 12. It is made clear that the observations made in this order are for limited purposes of considering the prayer for grant of leave. None of these observations shall be construed as any finding recorded by this court on the rights and liabilities of the parties. It is also made clear that the observations made in this order will not affect any other pending proceedings.
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2009 (4) TMI 1053
Forged and fabricated Promissory note (pro-note) - reference can be made to any expert for ascertaining the age of the ink used on the disputed document/cheque, or not - Section 45 of the Indian Evidence Act r/w Section 139 of the Negotiable Instruments Act - HELD THAT:- There is no legal embargo for getting opinion from the handwriting expert, which would effectively assist the Court in reaching a just decision. By no stretch of imagination, it could be stated that the opinion of the expert, is not relevant factor for adjudication of the dispute and in order to unearth the truth, the Court can very well refer the matter for comparison and necessary chemical examination.
Following the principles laid down in Apex Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [1963 (9) TMI 51 - SUPREME COURT], it is observed that it is necessary to get the opinion of the handwriting expert as per the prayer contained in the affidavit. Hence, the order passed by the Court below calls for intervention and the same is liable to be set aside, which is accordingly set aside and the Civil Revision petition deserves to be allowed. The trial Court shall follow the relevant procedure for referring the suit pro-note to the handwriting expert and to get the opinion and proceed with the case further.
Thus, it is observed that it is necessary to get the opinion of the handwriting expert as per the prayer contained in the affidavit - In fine, the Civil Revision Petition is allowed.
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2009 (4) TMI 1052
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... ... ..... D.L. Chidanand, Adv., Mr. Ajay Sharma, Adv., Mr. B.V. Balaram Das,Adv. For the Respondent None ORDER Delay condoned. Dismissed.
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2009 (4) TMI 1051
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... ... ..... SC 3366 (2006)6 SCC 39 2006 AIR SCW 4652, Hon'ble Supreme Court has observed at paragraph No. 57 of its judgment as under The appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act. 12. In view of all the facts and circumstances of the case as discussed supra and following the above decision of Hon'ble Supreme Court, I am of the considered opinion that no offence under Section 138 of the N.I. Act could be made out against the accused. Therefore, I do not find any reasons to interfere with the impugned judgment and order of acquittal. 13. Hence, the present appeal is dismissed as being devoid of merits. No order as to costs.
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2009 (4) TMI 1050
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... ... ..... al ignores the material available in the failure report of the Conciliation Officer or is not supported by any reason. 14. This case is squarely covered by the decisions in Ram Avtar Sharma and Telco Convoy Drivers Mazdoor Sangh. The state government has examined the merits of the dispute and has refused to make the reference on the ground that the workers were not the employees of IOC, when the very dispute that required reference was whether the workers should be considered as the employees of IOC. 15. In view of the above we allow this appeal and direct the Central Government to reconsider the matter in the light of the observations above and take an appropriate decision on the request for reference of the dispute to the Industrial adjudicator. As and when the state government makes the reference, it is for the Industrial Tribunal to consider the dispute on merits, on the basis of materials placed before it, uninfluenced by the observations of the High Court or this Court.
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2009 (4) TMI 1049
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... ... ..... curity of service. (iii) Whether retrenchment is contemplated and if so of how many? (c) Even if the petitioner R.R. Kabel’s proposal is not found acceptable, then the amount invested by them not only in purchasing 85% if the secured debts but also the amount invested by them in the sick company has to be returned to the petitioner at the option of the petitioner with reasonable interest by the party chosen by the BIFR for reviving the company. 39. It is further clarified that the order of stay of proceedings before AAIFR and BIFR passed on 13th February, 2007 stands vacated however, status quo with regard to the assets and the properties of the Sick Industrial Unit shall be maintained till the time the scheme is approved by the BIFR or till the time the BIFR modifies the interim order, whichever is earlier. With this observation all the pending CMs in this writ petition also stands disposed of and they do not warrant passing of any separate order. No order as to costs.
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2009 (4) TMI 1048
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... ... ..... substantive part of the section. Clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. In the present case, the notice of demand was served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion that complainant-respondent had not complied with the requirement of giving notice in terms of Clause (b) of proviso to Section 138 of the Act. Unfortunately, the High Court overlooked this important lacuna in the complainant's case. Therefore, the conviction of the appellant cannot be sustained. In the result, the appeal is allowed. The impugned order is set aside and the order of acquittal passed by the Trial Court is restored.
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2009 (4) TMI 1047
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... ... ..... on of the sale deeds without taking into account the interest of the creditors without considering the list of assets and according to Indian Bank the entire transaction allegedly has taken place after the commencement of the winding up process. We direct the High Court to de novo decide this matter uninfluenced by any of its earlier observations made in the impugned judgment. We express no opinion on the merits of the case. We grant liberty to both sides to make submissions in support of their case. Before concluding, we may state that the possession of the lands is with respondent No. 1 herein. Status quo as regard to possession is to be maintained till the Company Court decides the Application for validation dated 13th September, 2004. However, respondent No. 1 will not encumber the property. Respondent No. 1 will neither alienate the property nor create any third party rights in respect of the said property. The appeal is disposed of accordingly with no order as to costs.
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2009 (4) TMI 1046
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... ... ..... e Respondent(s) Mr. Bhargava V. Desai, Adv., Mr. Rahul Gupta, Adv., Ms. Reema Sharma, Adv. ORDER Delay condoned. Keeping the question of law open, the civil appeal is dismissed.
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2009 (4) TMI 1045
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... ... ..... cogent reasons whatsoever and without giving any finding for deciding the appeal against the appellant? (c) Whether in the facts and under the circumstances of the case, the decision of the ITAT was not perverse inasmuch as (i) all the details were filed before the Tribunal and the same ought to have been looked into and decided the appeal; (ii) while deciding the appeal extracts of assessment order and finding of CIT(A) has been reproduced; (iii) only stating that CIT(A) has not given finding for holding in favour of appellant; (iv) detailed paper book ought to have been looked into which has not been done.”
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2009 (4) TMI 1044
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... ... ..... he co-accused by the learned ASJ. If there is a challenge by the DRI to those orders such challenge will be considered by this Court on its merits. 11. The submission that Petitioners have been proceeded against under Section 135 Customs Act, 1962 and not for any IPC offence for commission of forgery and therefore the offence is not a grave one does not impress this Court. The manner of commission of offence which has resulted in large scale loss of revenue is grave enough for declining the prayer of the Petitioners for bail at this stage. 12. For the aforementioned reasons, this Court is not inclined to release the Petitioners on bail. It is however made clear that nothing contained in this order is intended to influence the opinion to be formed by any subordinate court when approached for similar relief by either of the Petitioners at a subsequent stage. Such prayer will be considered on its merits independent of the present order. 13. The petition is accordingly dismissed.
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