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Case Laws
Showing 1 to 20 of 22 Records
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1950 (3) TMI 37 - ALLAHABAD HIGH COURT
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... ... ..... nate and constitute Mr. Tajammul Husain .... to be my lawful attorney to represent me in India Union generally in all matters of any kind of nature whatsoever as effectually as I may or can do, with the right of substitution or subrogation, save and except for the sale, mortgage or transfer of property. I hereby promising and agreeing to ratify and confirm all that my said attorney may or shall do under virtue of these presents. The terms of the power of attorney authorise the attorney to do everything on behalf of Jamaluddin just as effectually as Jamaluddin himself could have done these things with the exception that the attorney shall not be entitled to sell or mortgage any property. The attorney was, therefore, entitled to compromise the appeal. One of the appellants is a minor. The compromise is for his benefit as reported by the lower Court. 6. The appeal, therefore, must be decided in terms of the compromise. I order accordingly. 7. Costs shall be borne by the parties.
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1950 (3) TMI 36 - MADRAS HIGH COURT
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... ... ..... and to have prayed for the alternative relief only before the Court below. He certainly had the option of choosing one of the alternative claims. But he was evidently quite satisfied with pressing for the relief of specific performance and he did obtain that relief. Till his learned counsel began his argument before us there was no mention that the respondent wanted the alternative relief in lieu of specific performance. No authority was cited to us that the appellate Court is bound to accede to this demand by the plaintiff even after the decree of the lower Court. In the absence of any indication till the time of the arguments that the plaintiff bad changed his mind and had decided to choose the alternative relief other than what was granted to him by the Court below, we are not inclined to grant this request. 5. The appeal is allowed to the extent of Rs. 1000 awarded as damages but is otherwise dismissed. The parties will pay and receive proportionate costs in this appeal.
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1950 (3) TMI 35 - HIGH COURT OF MADRAS
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... ... ..... n that suit, to obtain a final decree, and to execute it. The suit does not relate at all to property although possession of suit property by the appellant may result in due course on the passing of a final decree in his favour. There is no question of any property in dispute in the suit being in danger of being wasted, damaged, or alienated, or of being wrongfully sold in execution of a decree. It follows that the learned Judge had no jurisdiction to pass the order he did. It was necessary for him to consider whether Order 1 had any applicability to the facts before him, even though in doing so he would have decided the very question which arose in the Civil Miscellaneous Appeal itself. 5. The appeal is therefore allowed with costs in this Court and before the learned Admission Judge, his order sat aside, and C. M. P. No. 8923 of 1949 dismissed. The respondent is at liberty to withdraw the amount deposited by her in Court in fulfilment of the directions of the learned Judge.
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1950 (3) TMI 34 - ORISSA HIGH COURT
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... ... ..... insurance business it can hardly be said that the two would constitute one business. In the present case, if the grain business which had been taxed under the 1918 Act and the cardboard factory which had been started in 1922 were so interdependent and so inter-connected as to constitute, in essence one business concern, the petitioner's contention can be upheld. But the fact is that the grain business consisted in baying and selling for profit whereas the cardboard factory business was started for the purpose of manufacturing cardboards and making a profit. I cannot, therefore, persuade myself to hold that the business concerns started after 1918 such as manufacture of salt or of cardboard, were so intimately connected with the purchase and sale of grains that had been in existence from 1918, as to constitute one business. The view taken by the tribunal is, therefore, correct and we see no reason to call upon, them to state a case for the petitioner. Ray, C.J. 6. I agree.
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1950 (3) TMI 33 - MADRAS HIGH COURT
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... ... ..... r 25, Rule l by the addition of Sub-rule 4 brings in which an element of champerty or maintenance is proved within the purview of Order 25, Rule 1 to entitle a Court to direct security for costs if it is satisfied that such an element is present in the litigation before it. There sent case is not a suit of that kind. The mere fact that a suit is not held to be bona fide at the initial stage could not be a ground to hold that the petitioners are liable to furnish security for costs. Security for costs can be asked only under exceptional circumstances, and it should be the exception and not the rule, and it must be based upon some established principles, not on the mere circumstance that the Court in its first impression finds a suit as not a bona fide suit. 6. The order of the lower Court is therefore erroneous and the learned Judge has acted with material irregularity in the exercise of his jurisdiction. The order is set aside, and the revision petition is allowed with costs.
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1950 (3) TMI 32 - ORISSA HIGH COURT
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... ... ..... ed instrument. This apparent anomaly is, however, intelligible with reference to the conditions,-prevailing at the time when this Section 31(1) was introduced with the O. T. Act by way of an amendment by Act VIII 8 of 1938. By the same amending Act, the occupancy holding of a raiyat which was hitherto non-transferable except by consent of landlord was made statutorily transferable and the tenant was relieved of the liability to pay heavy mutation fee which was usually 25 per cent, of the sale consideration to the land lord to obtain his consent (Section 30-A, O. T. Act) The incurring of some expense for stamp and registration by the raiyat was a comparatively light burden and was probably required for the purposes of providing a dependable machinery for the information of the landlord. It would be defeating the intention of the legislature to construe the provision as merely directory and not mandatory. 16. In the result, I agree with the order proposed by my learned brother.
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1950 (3) TMI 31 - BOMBAY HIGH COURT
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... ... ..... ssioner had held that he should be assessed as an individual. Therefore, in my opinion, the decision of the Appellate Assistant Commissioner cannot be supported at all and that decision was not binding and never bound the applicant. If that decision is bad and not valid in law, the assessment made on the applicant is equally bad because, as I said, that assessment was made on the basis of the applicant being an individual. 3. Therefore, the question that are submitted to us by the Tribunal must be answered as follow Question (1) in the affirmative. We will amend question (2) and it should read thu "Whether the Appellate Assistant Commissioner was competent to take additional evidence in the absence of Tuljansa without notice to other members of the family". So amended the answer must be in the negative. Question (3) in the affirmative. Commissioner to pay the costs of the reference. Notice of motion dismissed. No order as to costs. 4. Reference answered accordingly.
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1950 (3) TMI 30 - HIGH COURT OF DACCA
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... ... ..... all the terms of the notice issued under Section 23(2). Each of these is an independent default and justifies the Income-tax Officer to make a summary assessment. In the case of Ramkhelawan Ugam Lal.’s case ( supra) referred to above, the notice under Section 22(4) was issued after a return was submitted and it was held to be valid. In the case of R.M.S.R.M. Ramaswami Chettiar’s case (supra), it was argued that, after the return was submitted, the Income-tax Officer could not resort to Section 22(4) without issuing a notice under Section 23(2) of the Act and that argument was negatived. In the persent case the notice under Section 22(4) was served before the return was submitted and, therefore, there was no occasion on the date when this notice was issued to have resort to Section 23(2), as that section only applies to a case where a return has been made. In the above view of the matter, the answer to the second question is in the affirmative. brahim, J.-I agree.
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1950 (3) TMI 29 - BOMBAY HIGH COURT
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... ... ..... ntiffs all those whom the plaintiffs represent were interested in the fate of the suit and the plaintiffs have obtained this order without in any way consulting that class whom they represent. It is perfectly true that the Court can give its consent to the compromise or withdrawal of a representative suit. But normally the Court does not do so without directing that the plaintiff should advertise in the papers that he proposed to take a particular course of action, and if no objection is forthcoming, then the Court ordinarily passes the order. But it does not appear from the order made by the learned Judge that it was present to his mind that he was permitting a representative suit to be withdrawn without the persons represented by the plaintiffs being consulted at all. 5. Under the circumstances, we think that the order made by the learned Judge cannot stand. We, therefore, allow the appeal with costs and set aside the order made by the learned Judge. One counsel certified.
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1950 (3) TMI 28 - BOMBAY HIGH COURT
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... ... ..... and not on whether the vote can be exercised or not. In my opinion, therefore, the Tribunal was right when it came to the conclusion that looking to the fact that the directors held 7,471 shares during the relevant period out of 15,600 shares, they did not have a controlling interest in the company and therefore during the material period the company was not a director-controlled company. I would therefore answer question (1) in the negative. With regard to question (2), whether in the circumstances of the case the commission due to the managing agents was a debt due by the company or borrowed money for the purpose of rules 2 and 2A of Schedule II to the Excess Profits Tax Act, the case is wholly covered by a decision which we gave recently and which is reported in Seksaria Biswan Sugar Factory, Ltd. v. Commissioner of Income-tax, Bombay 1950 18 ITR 139 ; 52 Bom. LR 91. In the light of that decison, the answer to question (2) is that it was a debt due. Tendolkar, J.-I agree.
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1950 (3) TMI 27 - ORISSA HIGH COURT
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... ... ..... s against that, Mr. Das, learned Standing Counsel, invited our attention to the Bombay case already referred to. The ratio of the Bombay decision is that the order in question was one within sub-section (2) of Section 30 to which I have referred. Such procedure as that of admission is, however, not to be found within the language of the proviso which declares an appeal to be incompetent in cases where the appellant is found not to have paid the assessed tax. That was really the point on which the Bombay High Court distinguished the decision of the Patna High Court. Under the circumstances, apart from our feeling ourselves bound by the Patna decision, we are, on consideration of merits, of opinion that the Bombay decision does not apply to the facts of the case before us and that the question referred to us must be answered in the affirmative. In the result, the Appellate Tribunal should now take up the appeal, entertain it, and dispose it of on merits. Panigrahi, J.-I agree.
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1950 (3) TMI 26 - RAJASTHAN HIGH COURT
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... ... ..... ing that the extradition treaty was good law the detention of the petnr cannot be justified under its terms, because under the terms of treaty only non. Dholpur State subjects could be surrendered if they took shelter within the territories of the Dholpur State after having committed an offence in the British territories, & there is no provision whatsoever in the tready of surrender Of surrender of a Dholpur State subject. The petnr. was a subject of the Dholpur State & is now a citizen of the State of Rajasthan. In view of the foregoing discussion of the legal position of the treaty, it is not very necessary here to go into the interpretation of the terms of that treaty. 13. In conclusion it may be observed that the detention of the petnr. being not in accordance with the procedure established by law an order under Section 491 to set him free should be made. This petn. is accepted & it is ordered that Birma Nai be sat at liberty forthwith. Mehta, J. 14. I agree.
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1950 (3) TMI 25 - SUPREME COURT
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... ... ..... ase 1941 A.C. 108, but should be read in the sense in which it is loosely used in common parlance, and that being so, the decision under appeal cannot be sustained. 64. Mr. Setalvad cited a number of Indian authorities where the words "buyer" and "purchaser" had not been given the strict meaning that had been given in Luxor's case 1941 A.C. 108. Similarly, the words "lender" and "borrower" had been given the meaning of "potential lender" and "potential borrower". It is, however, unnecessary to enter into a discussion of all those cases as it does not in any way advance the matter beyond what I have already said. It is unnecessary to go into the third contention of Mr. Setalvad in view of the above decision. 65. For the reasons given above I agree with the conclusion reached by my brother, Patanjali Sastri, in the judgment just delivered by him, that the appeal be allowed with cost throughout. 66. Appeal allowed.
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1950 (3) TMI 24 - BOMBAY HIGH COURT
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... ... ..... r improper exercise of the discretion vested in the Court to allow the amendment of pleadings. 6 Therefore, if what Tendolkar J., has done is merely to exercise his discretion in allowing the plaint to be amended, the most that Mr. Seervai can say is that in this particular case his exercise of the discretion has not been proper. In that view of the case the decision in Sheshgiridas Shanbhag v. Sunderrao 48 Bom. L. R. 252 A. I. R. 1946 Bom. 361, is indistinguishable, and following the decision of that division bench we must hold that the order made by Tendolkar J., is not a judgment and no appeal lies from that order. The result is that the appeal fails and is dismissed with costs. 7 There are cross-objections against the order of Tendolkar J., with regard to costs and Mr. Manecksha very fairly concedes that those cross-objections would not lie. The result is that the cross objections also fail and must be dismissed with costs. H.C. Coyajee, J. 8 I agree. 9 Appeal dismissed.
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1950 (3) TMI 23 - SUPREME COURT
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... ... ..... e Excise Act contrary to the provisions of the Municipal Act. Unless, therefore, it is necessarily implied under the Excise Act, the levy of the octroi duty under the Municipal Act continues to be valid. On this point again the appellant's argument is that the levy of a duty at any stage of the manufacture of bidis out 01 tobacco would be the levy of the excise duty and therefore those provisions were contrary to the provisions permitting the levy of the octroi duty. We have already discussed and rejected in the first part of the judgment this contention. It is wrong to think that two independent imposts arising from two different sets of circumstances were not permitted in law. In our opinion, therefore, there is nothing in the Excise Act to make its provisions contrary to the provisions of Section 66 (1) (e) of the Central Provinces Municipalities Act or to the levy of octroi duty under the same. The appeal therefore fails and is dismissed with costs. Appeal dismissed.
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1950 (3) TMI 22 - SUPREME COURT
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... ... ..... he witnesses as to the number of blows said to have been dealt by Prandas, and Agardas speaks of one blow only. In these circumstances, it seems to us that the view of the High Court that the appellant is not entitled to the benefit of exception 4 to Section 300, Penal Code cannot be sustained, and that being so, the conviction under Section 302 cannot stand. In our opinion, the case comes within the second part of Section 304, which deals with the punishment for culpable homicide not amounting to murder when the act is done with the knowledge that it is likely to cause death or cause such bodily injury as is likely to cause death. The conviction of the appellant is therefore altered to one under Section 304, and he is sentenced to undergo rigorous imprisonment for five years. His conviction and sentence under Section 323, Penal Code will stand and the sentence passed by the High Court under that section shall run concurrently with the sentence under Section 304, Penal Code.
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1950 (3) TMI 21 - BOMBAY HIGH COURT
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... ... ..... side in the house given to him by the Bank and therefore when the agent contended that the house rent could not be treated as his income he made that contention with considerable justification which was upheld by the House of Lords. In the case before us it is not suggested that there was any obligation upon the directors to reside in the quarters given to them by the company. If there was such an obligation and if they had to occupy them as a part of their business as directors then the case might have presented a different aspect; bat on the facts found by the Tribunal it is clear that the sum of ₹ 5,688-0-0 expended by the company for rent for the residence of the directors is nothing more than a part of the remuneration paid to the directors. We would therefore answer the questions referred to as Question No. 1 in the affirmative. Question No. 2 in the affirmative. The Commissioner to pay three-quarters of the costs of the assessees. Reference answered accordingly.
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1950 (3) TMI 20 - BOMBAY HIGH COURT
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... ... ..... eads of Section 10 and unless the assessee satisfies the Income-tax authorities that the claim that he is making with regard to the deduction under Section 10(2)(xv) falls strictly within its compass and ambit, the assessee would not be permitted that deduction. But having considered the whole case and the question submitted to us I am satisfied that looking purely at it from the point of view of commercial principles what the assessee company has done is something which had as its object increasing the profits of the Tata Iron and Steel Co. and thereby increasing its own share of the commission. In that view of the case the only conclusion I can come to is that the sums claimed by the assessee company were wholly and exclusively expended for the purposes of the business. I would therefore answer the questions submitted to us in the affirmative with regard to both the accounting years. The Commissioner to pay the costs of the reference. Reference answered in the affirmative.
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1950 (3) TMI 19 - HIGH COURT OF MADRAS
Share capital - Notice of increase of and Disqualification of directors ... ... ... ... ..... om the view of the District Munsif, I think it is unnecessary, however, to rest this judgment on that basis, because, admittedly the terms of the directors is now over and the respondents can, if at all, only stand for election under the articles as they stand now. It is not necessary, therefore, to deal with this aspect of the matter. Nor is it necessary to refer to the last contention on behalf of the respondents that the second portion of the resolution providing that in the absence of the fulfilment of the requirement of Rs. 1,000 deposit within two months, the past directors should vacate their place is not justified under Article 22 of the articles of association of the company, as they stand unamended, or under any of the provisions of the Indian Companies Act. These matters have now become merely academic by efflux of time. The second appeal is therefore allowed with costs here and in the lower appellate court and the decree of the trial court restored. Leave refused.
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1950 (3) TMI 18 - HIGH COURT OF MADRAS
Amalgamation ... ... ... ... ..... The plaintiff, however, does not require these documents to be admitted in evidence in the Court of the District Munsif. In the view we have taken of the effect of section 153-A of the Companies Act, the plaintiff can establish its title to recover the book debts of the Virudhunagar branch of the Pudukottah Benefit Fund on the basis of the order of this Court approving the scheme of arrangement. Therefore, the learned District Munsif is not called upon to decide the question of the proper stamp duty payable upon these documents and also the penalty leviable on them. Under section 38 (2) of the Stamp Act, he has to send the documents to the Collector who has to levy the proper duty and the penalty in respect of these documents. It is therefore unnecessary for us to indicate the amount of the stamp duty leviable on the two documents. That will be a matter to be dealt with by the Collector when the documents are sent to him. We answer the reference in the manner above indicated.
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