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Showing 21 to 40 of 645 Records
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2007 (5) TMI 673 - SUPREME COURT
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... ... ..... to a Chartered Accountant seeking additional training and qualification of CFA? In our opinion the impugned notification clearly and flagrantly violates the fundamental rights of the writ petitioners under Articles 14 and 19(1)(g) of the Constitution of India. 47. With respect to the court below it has obviously misunderstood the difference between the nature of functions of the Chartered Financial Analysts and the Chartered Accountants. Thousands of Chartered Accountants who have become students and/or have qualified as CFAs from the Institute of Chartered Financial Analysts of India could not have done so if the CFA programme did not offer training and education that was not available in the CA programme. Their involvement in such large numbers is in itself the testament to the CFA qualification. 48. In view of the above, the appeal is allowed. The impugned judgment of the High Court is set aside and the notification dated 3.8.1989 issued by the respondent No. 1 is quashed.
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2007 (5) TMI 672 - KERALA HIGH COURT
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... ... ..... rity to amend the assessment accordingly, and on such amendment being made any amount over-paid by any person shall be refunded to him, or the further amount of tax from him shall be collected in accordance with the provisions of this Act, as the case may be. (9) The cost of a revision under sub-section (1) or of a review under sub-section (7) shall be in the discretion of the High Court.” This Court gets jurisdiction to entertain a revision petition only if the Tribunal has erroneously decided a question of law or has failed to decide a question of law. 4. In the instant case the questions of law framed by the assessee can never be construed as questions of law and they are purely questions of fact. In that view of the matter we cannot entertain this revision and accordingly it requires to be rejected and it is rejected. The assessee/petitioner is granted two months' time from today to pay the dues under the Act for the assessment year 1998-99. Ordered accordingly.
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2007 (5) TMI 671 - COMPANY LAW BOARD
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... ... ..... signatories is hereby declared null and void and status quo ante is restored. (iv)Allotment of 4,250 equity shares to R-3 (3,000 equity shares) and R-8 (1,250 equity shares) and Form No. 2 filed with the RoC in this regard are declared null and void and status quo ante is restored. (v)The Annual Accounts of the R-1 company for the year ended 31st March, 2005 including the notice, Directors’ Report, Compliance Certificate filed with the RoC are declared null and void. (vi)The Annual Return filed with the RoC dated 30-6-2005 is hereby declared null and void. (vii)The respondents are directed to restore the amounts siphoned off from the R-1 company’s accounts forthwith. (viii)The R-1 company is hereby directed to give consequential effects in implementing the directions contained in (i) to ( vii) above forthwith. 35. With the above directions, the Company Petition 78/05 stands allowed. All interim orders stand vacated. All CAs stand disposed of. No order as to cost.
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2007 (5) TMI 670 - ALLAHABAD HIGH COURT
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... ... ..... the Tribunal's order dated 6.10.1989 is based upon a total misreading and misapplication of that decision. 6. The view taken by the Karnataka High Court in the case of CIT v. Amco. Batteries at the end of para 7 of that law report lays down the correct law in the following words Therefore, unless the aforesaid sums are paid, as a matter of fect, the employer/assessee is not entitled to claim deductions. 7. We approve the decision of the Karnataka High Court in respect of the contribution contemplated under Section 43B of the Income Tax Act. 8. Thus our answer to the referred question is that the Appellate Tribunal was not right in saying that the employer's contribution to Provident Fund, Family Pension, State Insurance and deposit linked insurance was not disallowable under Section 43B. In fact, the said contributions, which may have been payable had not been actually paid during the relevant year, were liable to be disallowed. 9. Reference disposed of accordingly.
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2007 (5) TMI 669 - SUPREME COURT
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... ... ..... the subjects taught by the appellant or the respondent No. 1 for five years was 98% or 100% may not be of much significance. 30. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The matter is remitted to the Joint Director of School Education for consideration of the matter afresh strictly in accordance with law. 31. Although in terms of the High Court's Order, the appellate authority was required to consider the respective merit and ability of the appellant/first respondent at the relevant point of time namely when the post fell vacant, we are of the opinion that the same would not debar it from taking into consideration the question as to whether he has disqualified himself by any misconduct committed by him during his tenure as Headmaster of the School. The judgment of the High Court is set aside. 32. This appeal is allowed. In the facts and circumstances of the case, however, there shall be no order as to costs.
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2007 (5) TMI 668 - ALLAHABAD HIGH COURT
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... ... ..... shok Kumar has drawn our attention to a Division Bench judgment of this Court in Prayag Narain, Shahjahanpur Vs. Sales Tax Officer, Shahjahanpur, reported at 1981 U.P.T.C.-1164. In that matter, in a similar situation, the Division Bench has taken the view that when an application is made under Section 30 (1) of the Act for setting aside the ex parte assessment, the assessee has to pay the amount of tax admitted by him to be due with the application. The assessee was paying the amount at the rate of 3% in that case, and not at the rate of 3½ %, which was insisted by the Trade Tax Officer. 5. On the same lines, inasmuch as the petitioner is paying the trade tax at the rate of 8%, he assures that he will continue to pay the same until a decision is arrived at, we allow this writ petition, set aside the show cause notice and direct the officer concerned to decide on merits the application filed by the petitioner under Section 30 of the Act. 6. The writ petition is allowed.
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2007 (5) TMI 667 - SUPREME COURT
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... ... ..... de subsequent to 24-9-1984, the date on which Act 68 of 1984 came into force. The Land Acquisition (Amendment) Bill of 1982 was introduced in Parliament on 30-4-1982 and came into operation with effect from 24-9-1984.... 20. In the peculiar facts and circumstances of the case, although the proper course for us would have to remand the matter back to the Collector to determine the amount of compensation to which the Appellants would be entitled for being remained out of possession since 1979, we are of the opinion that the interest of justice would be met if this appeal is disposed of with a direction that additional interest @ 15% per annum on the amount awarded in terms of award dated 02.01.1999 for the period 16.03.1979 till 22.12.1991, should be granted, which, in our opinion, would meet the ends of justice. 21. The appeal is allowed in part and to the extent mentioned hereinbefore. Appellant shall not be entitled to costs. Counsel's fee is assessed at ₹ 50,000/-
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2007 (5) TMI 666 - COMPANY LAW BOARD
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... ... ..... estored. Form No. 32 filed with the ROC in respect of the appointment of R-3 and R-4 is also declared as null and void. ii. The agreement to sell and purchase dated 7.7.2005 and execution of the same by R-2 on behalf of the respondent company is declared null and void and the respondent Nos. 2 to 6 are restrained from entering into any mutation of flat in favour of a third party. iii. The respondent Nos. 2,3, 7,8 and 9 are directed to refund the amount drawn by them illegally from the company's bank account. iv. The resolution given to Respondent Nos. 12 and 13 bankers for change in authorised signatories is hereby cancelled and declared as null and void and status quo ante is restored. v. The R-1 company is directed to give consequential effects in implementing the directions contained in (i) to (iv) above forthwith. 24. With the above directions, the Company Petition 71/05 stands allowed. All interim orders stand vacated. All CAs stand disposed of. No order as to cost.
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2007 (5) TMI 665 - SUPREME COURT
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... ... ..... vice during emergency due to foreign aggression is a futile plea and should not have been accepted by the High Court. It need not be impressed that whenever any particular period spent in any other service by a person is added to the service to which such person joins later, it is bound to affect the seniority of persons who have already entered in the service. As such any period of earlier service should be taken into account for determination of seniority in the later service only for some very compelling reasons which stand the test of reasonableness and on examination can be held to be free from arbitrariness. 26. Respondent in this case admittedly joined the services after the Emergency was over. Furthermore, he joined the State service only in the year 1988 when the 1980 Rules ceased to have any force. 27. For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly. The appeals are allowed. No costs.
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2007 (5) TMI 664 - ORISSA HIGH COURT
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... ... ..... st be kept in mind by the Court. So far 2007 is concerned, the procedure for admission which was followed in 2006 may continue. 63. For the reasons aforesaid, this Court holds that the Orissa Professional Educational Institutions (Regulation of Examination and Fixation of Fees) Act, 2007, as enacted, is unconstitutional and is struck down as inoperative and invalid and not binding on the petitioners. 64. Even if it is held that the State Government has the legislative competence to enact-the said Act, the said Act, as enacted, is violative of the provisions of Article 19(1)(g) of the Constitution of India. If so advised, the State Government can, following the principles of Article 19(1)(g), enact a law, if at all," only by following the provision of Article 254(2) of the Constitution. But that has not been done while enacting the said Act. 65. All the writ petitions are allowed to the extent indicated above. There will be no order as to cost. N. Prusty, J. 66. I agree.
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2007 (5) TMI 663 - CALCUTTA HIGH COURT
Constitution Validity of Order Passed by HC - Decree for declaration of the title and permanent injunction constituted under West Bengal Land Reforms and Tenancy Tribunal Act - Violation of the provisions contained in Section 57B(2) of the West Bengal Estates Acquisition Act - Application for grant of special leave - provision of compensation for vesting in the West Bengal Land Reforms Act - HELD THAT:- We have indicated that the Tribunal constituted under the provision of the West Bengal Land Reforms and Tenancy Tribunal Act, is not vested with any authority to declare that a decree passed by a Civil Court is without jurisdiction and, therefore, in the case before us, the Tribunal below acted without jurisdiction in approving the contention of the State-respondent that it could ignore the decree passed by the Civil Court and maintain the record-of-rights which is at variance with the decree it has suffered.
We, therefore, set aside the order passed by the Tribunal and directed the B.L. & L.R.O concerned to correct the record-of-rights strictly in accordance with the decree passed in favour of the writ petitioner/his predecessor. The record must be corrected within one month from the date of communication of this order.
The effect of the order of stay in a pending appeal before the Apex Court does not amount to "any declaration of law" but is only binding upon the parties to the said proceedings and at the same time, such interim order does not destroy the binding effect of the judgment of the High Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned.
We, therefore, find substance in the contention of the writ petitioner that a Division Bench of this Court having declared the provision contained in the West Bengal Land Reforms Act regarding vesting without making any lawful provision for compensation for such vesting in the Act as ultra vires the Constitution of India, the State cannot be permitted to proceed with the said provision of vesting against the petitioner so long adequate provision is not made in the statute for compensation.
We, thus, respectfully follow the decision of the Division Bench of this Court in the case of Paschim Banga Rajya Bhumijibi Sangha, which is still binding upon us as a valid precedent and consequently, set aside the order passed by the Tribunal on the ground that without making lawful provision of compensation for vesting in the West Bengal Land Reforms Act, the State cannot go on with the process of vesting against the writ petitioner.
The order impugned herein as well as the proceedings of vesting are set aside; the writ application is allowed to the extent indicated above. This order, however, will not stand in the way of the State in continuing with the process of vesting if adequate lawful provision is incorporated in the Act for compensation for the vested land.
The writ application, thus, succeeds.
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2007 (5) TMI 662 - CESTAT MUMBAI
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... ... ..... tment. The Asstt. Commissioner confirmed the demand of interest and imposed penalty. The Commissioner (A) upheld the impugned order to the extent of confirmation of demand, but set aside the penalty as the respondent had paid the amount of duty before issue of show cause notice. I find the decision of Hon'ble High Court of Bombay in the case of Gaurav Merchantiles Ltd. 2005 (190) E.L.T. 11 (Bom.) squarely covers the issue as the respondent has paid the duty demand before issuance of show cause notice. 2. Accordingly the appeal filed by the Revenue against setting aside the penalty is dismissed. (Dictated in Court)
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2007 (5) TMI 661 - SUPREME COURT
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... ... ..... ily differ from that of proving any other document. Noticing B. Venkatamuni (supra), it was observed The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the judge even if there exist circumstances of grave suspicion. See Venkatachala Iyengar (supra) See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis AIR2006SC1895 50. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside. Accordingly, the appeal is allowed with costs. Counsel's fee assessed at ₹ 5,000/-.
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2007 (5) TMI 660 - SUPREME COURT
Challenge the order of the High Court - Maintainability of plaint - suit dismissed for want of cause of action - suits under Order VII Rule 11 of the Code of Civil Procedure - Suits barred by limitation - renewal of an agreement or lease - HELD THAT:- In the instant case, the appellant-plaintiff did exercise their option and claimed renewal. The respondents denied their right to claim renewal in express terms and also unequivocally stated that the agreement did not stand renewed as contended by the appellants.
In the absence of a document renewing the original agreement for a further period of 5 years and in the absence of any declaration from a court of law that the original agreement stood renewed automatically upon the appellants exercising their option for grant of renewal, as is the case of the appellants, they cannot be granted relief of injunction, as prayed for in the suit, for the simple reason that there is no subsisting agreement evidenced by a written document or declared by a Court. If there is no such agreement, there is no question of enforcing clauses 15 and 20 thereof. The appellants ought to have prayed for a declaration that their agreement stood renewed automatically on exercise of option for renewal and only on that basis they could have sought an injunction restraining the respondents from interfering with their possession and operation. Having not done so, they cannot be permitted to camouflage the real issue and claim an order of injunction without establishing the subsistence of a valid agreement.
Thus, suit as well they could have sought a declaration that the agreement stood renewed automatically but such a claim would have been barred by limitation since more than 3 years had elapsed after a categoric denial of their right claiming renewal or automatic renewal by the respondents- defendants.
We have found that the real foundation for the suit was that the earlier agreement stood renewed automatically containing the same terms and conditions as in the original agreement including the negative covenants. There is neither a document to prove that the agreement stood renewed nor is there a declaration by a court that the agreement stood renewed automatically on exercise of option for renewal by the appellants. The basis for claiming the relief of injunction, namely, a subsisting renewed agreement did not exist in fact. In its absence, no relief as prayed for in the suit could be granted by the clever device of filing a suit for injunction, without claiming a declaration as to their subsisting rights under a renewed agreement, which is apparently barred by limitation.
We are, therefore, satisfied that the Trial Court as well as the High Court were justified in holding that the plaint deserved to be rejected under Order VII Rule 11 CPC since the suit appeared from the statements in the plaint to be barred by the law of limitation. We, therefore, find no merit in these appeals and the same are accordingly dismissed.
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2007 (5) TMI 659 - HIMACHAL PRADESH HIGH COURT
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... ... ..... ry 1, 1994 to January 31, 2001 (regular period only), the State was bound to pay the gratuity under the CCS (Pension) Rules, 1972. Accordingly, the writ petition is disposed of with the following directions (i) The workman is entitled to get the gratuity for the period w.e.f. March, 1982 to December 31, 1993 under the Payment of Gratuity Act, 1972 with interest as power law laid down by the Hon'ble Supreme Court in H. Gangahanume Gowda v. Karnataka Agro Industries Corporation Ltd. (supra); (ii) The workman is held entitled and is to be paid the gratuity w.e.f. January 1, 1994 to January 31, 2001 (sic) (regular period) under the CCS (Pension) Rules, 1972 with interest @ 9% per annum. The copy of the judgment be sent to the Secretary Labour & Employment for its distribution to the Controlling as well as Appellate Authority constituted under the Payment of Gratuity Act, 1972. The aforesaid directions be complied with by the State within a period of one month from today.
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2007 (5) TMI 658 - SUPREME COURT
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... ... ..... a decision of this Court in South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd. 1996 3SCR405 , in support of his contention that the submission of the bank guarantee from Hyderabad or the encashment thereof does not constitute even a part of cause of action to confer jurisdiction on the court at Hyderabad. Though we find substance in the contention raised by the learned Counsel for the appellant but in view of our finding recorded on the main point, we do not consider it necessary to express any final opinion on the second contention. 12. For the reasons discussed above, the appeal is allowed with costs throughout. The judgment and order dated 9.9.2005 of the High Court of Andhra Pradesh and the judgment and order dated 27.12.2004 of the City Civil Court, Hyderabad appointing an arbitrator are set aside. It will be open to the parties to get the dispute decided by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration.
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2007 (5) TMI 657 - SUPREME COURT
Challenged the judgment and decree of the High Court - resumption of the leased land for contravention of the terms of lease - Claim for possession - issued notice u/s 80 of the Code of Civil Procedure - illegal and unauthorized dispossession - suit for a declaration - mesne profits, costs and other appropriate reliefs -
(i) Whether the lease under deed - Ex.P1 dated 30.9.1921, is a perpetual lease - HELD THAT:- Essential ingredients of a lease are : (a) There should be a transfer of a right to enjoy an immovable property; (b) Such transfer may be for a certain term or in perpetuity; (c) The transfer should be in consideration of a premium or rent; (d) The transfer should be a bilateral transaction, the transferee accepting the terms of transfer.
The deed dated 30.9.1921 does not specify any duration, but permits the lessee to hold the land forever subject to the right of the lessor to resume the land by giving one month's notice. There is no grant in perpetuity. The right of the lessor to resume the land by giving a month's notice, is unconditional at the absolute will and discretion of the lessor, whenever he desires.
The learned Counsel for appellant submitted that courts have taken the view that existence of a mere provision for forfeiture for non-payment of rent or other specified breach, in a deed granting permanent lease, will not make the lease non- permanent. Such line of decisions, may not assist the appellant as a provision for determination of the lease for a specified breach, is in no way comparable to reservation of an absolute right to resume at will without assigning any reason, in a lease without consideration. We, therefore, affirm the finding that Ex.P1 is not a lease in perpetuity. We, however, desist from examining the further question whether the lease itself was invalid for want of consideration, as such a contention was not raised in the written statement nor urged before the trial court or High Court.
(ii) Whether the plaintiff's father did not secure any manner of right, title or interest in the suit property, as the sale certificate in his favour was not followed by a registered deed of transfer - It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under Sub-section (b) and (c) of Section 17(1) of the said Act. We therefore hold that the High Court committed a serious error in holding that the sale certificate did not convey any right, title or interest to plaintiff's father for want of a registered deed of transfer.
(iii) Whether the transfer of leasehold interest in favour of plaintiff's father was void, for want of notice to lessor and consent of the lessor - Only transfers in violation of Condition IV are void. No penal consequence is specified for failure to comply with Condition V. Therefore, it is not possible to hold that the auction sale of the leasehold right in favour of Bhowrilal was void for want of notice to the lessor.
(iv) Whether the plaintiff was forcibly dispossessed in September 1975 and entitled to a decree for possession and (v) Whether the suit was barred by limitation - It is clear that the case of plaintiff that he was forcibly dispossessed from the suit land in September, 1975 is an afterthought to grab defence land. As plaintiff has failed to prove forcible dispossession and the documents disclose that the land was resumed in terms of the lease dated 30.9.1921 without any protest from the plaintiff, he is not entitled to the relief of possession, even if such dispossession was within twelve years before the date of suit. Apart from merits, the claim for possession is also clearly barred by limitation as the suit was filed on 21.8.1987 and plaintiff was lawfully dispossessed several years prior to 1975.
If at all there is any dispute or issue was pending, that was relating to the claim for compensation and plaintiff had to seek arbitration in that behalf by establishing that structures were lawfully put up with the permission of the lessor and the nature and extent of such structures. But no such request was made for arbitration. No such relief is claimed in the plaint. At all events by 1987, there was no surviving claim for compensation and no request could even be made for reference to arbitration. The plaintiff - appellant is not therefore entitled to any relief.
Conclusion - Though the judgment of the High Court may be erroneous in regard to certain issues of fact, we find that the final decision of the High Court to dismiss the suit was correct and just and does not call for interference. We, therefore, affirm the decision of the High Court dismissing the suit.
The appeal is, accordingly, dismissed. Parties to bear their respective costs.
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2007 (5) TMI 656 - SUPREME COURT
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... ... ..... ve been frustrated on some pretext or other. In Orissa State Financial Corporation and Anr. v. Hotel Jogendra (1996)5SCC357 it was held that a recalcitrant defaulters' case deserves to be dealt with sternly. 9. The right of State Financial Corporation (in short 'SFC') unilaterally exercisable under Section 29 of the State Financial Corporation Act, 1951 (in short 'SFC Act') is available against a debtor, if a company, only so long as there is no order of winding up. 10. SFCs cannot unilaterally act to realize the mortgaged properties without the consent of the official liquidator. 11. If the official liquidator does not consent, SFCs have to move the Company Court for appropriate directions to the official liquidator. In any event, the official liquidator cannot act without seeking directions from the Company Court and under its supervision. 12. The inevitable result is that the appeal is without merit deserves dismissal, which we direct. Costs made easy.
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2007 (5) TMI 655 - COMPANY LAW BOARD, CHENNAI
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... ... ..... the context of the Arbitration and Conciliation Act, 1996 and the grievances of the petitioners having arisen out of the SPA, will not be applicable to the facts of the present case. The plea of the petitioner that he is relying upon the SPA only for collateral purpose does not merit any consideration. It is on record that the respondents have already referred the disputes for resolution by arbitration, of course after filing of the company petition. In view of this, the petitioners are at liberty, if so advised, to agitate all their grievances in relation to the SPA before the arbitrators, more so when, this Bench is not competent to decide as to whether the SPA is fair or barred by limitation or whether parties to the SPA have violated its terms or whether consideration for the impugned shares is reflected in the SPA or any other issue arising out of the SPA. With these directions the company petition stands disposed of. In view of this, all the interim orders are vacated.
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2007 (5) TMI 654 - DELHI HIGH COURT
Petition filed u/s 34 of the Arbitration and Conciliation Act 1996 (The Act) - Validity of award made by sole arbitrator - no arbitration agreement between the parties - Violates provisions of The Limitation Act, 1963 and Sick Industrial Companies (Special Provisions) Act, 1985 and The Arbitration and Conciliation Act, 1996 -
Issue Regarding Existence of an Arbitration Agreement - HELD THAT:- In the present case, the Petitioner herein made his offer when it placed the purchase order dated 13.2.1997 upon the Respondent which, inter-alia, contained Clauses 10 and 11 as aforesaid. Clause 10, specifically made any other terms or conditions, contained in any document of the respondents that were in addition to, or in contradiction to those contained therein, inapplicable to the contract unless they were specifically agreed to by the petitioner in writing. Clause 11 subjected all disputes to jurisdiction of Delhi Courts. The respondent acted on this offer by effecting supplies of the goods, and at the same time raised an invoice dated 6.3.1997 for ₹ 1,49,866.17 which contained condition No. 4.
The inclusion of terms and conditions at the back of the invoice, unilaterally issued by the Respondent while effecting delivery of the goods in terms of the Petitioner's purchase order, would not bind the Petitioner. The purchase order itself made it clear that the Petitioner did not intend to refer its disputes to arbitration in respect of the resulting transaction arising out of the said purchase order. Arbitration was clearly contra indicated when the Petitioner's purchase order itself stated that "Any dispute arising out of this contract shall be subject to the jurisdiction of Courts in Delhi" The Respondent was well aware that the Petitioner had shunned arbitration, yet the Respondent acted in furtherance of the said purchase order by effecting supplies.
The signature by the petitioners agent on the respondents copy of the invoice cannot tantamount to acceptance of the respondents so called offer for arbitration. The signatures in such a situation were evidently an acknowledgment of receipt of the goods and nothing more. There is another aspect of the so- called Arbitration Agreement contained in condition No. 4 of the Respondents invoice.
Thus, I find that there was in fact no arbitration agreement between the parties and that the arbitrator appointed by the Paper Merchants Association (Regd.), Delhi had no jurisdiction to adjudicate the disputes between the parties in relation to the contract in question. The arbitrator has completely misdirected himself in dealing with the aforesaid specific objection as to his jurisdiction.
Issue of Limitation: - The Purchase Order dated 13.2.1997 clearly stipulates that the payment was to be made in 90 days of the date of dispatch of goods. There is no averment in the claim petition that any goods were supplied beyond 31.7.1997 (the principal amount claimed before the Arbitrator was the total claimed to be outstanding as on the said date).
Thus, time began to run in this case not later than 31-7-97 (or 90 days thereafter at the latest) which date was not denied by the Respondent No. 1 in his rejoinder filed before the Arbitrator. Proceedings, if any, ought to have been initiated before the expiry of three years from that date. However, the Arbitration commenced in January, 2001. The giving of `C' Form by the petitioner on 16-1-2000 does not have the effect of postponing the due date of payment under the contract. Therefore, unless the Respondent makes out a case of extension of limitation under the provisions of the Limitation Act, the proceedings were clearly barred by time.
Form 'C' given by the Petitioner to the Respondent on 16.1.2000 be considered to be an acknowledgment? - Firstly, there is no acknowledgement of a present and subsisting liability. The said form can at the most be treated as an acknowledgement of the goods received under the contract of supply of goods and the price fixed to be paid for them. Whether or not payments were effected thereafter, or any amount remains due or outstanding cannot be inferred from the said 'C' form in the facts and circumstances of this case. Secondly, no intention to acknowledge a liability can be inferred from the contents of the said 'C' form. Thirdly, one cannot establish a jural relation of debtor and creditor from the contents of the said 'C' form. Thus, the essential requirements for a writing to constitute acknowledgment are missing from this document. (see Hansa Industries (P) Limited v. MMTC Ltd [2004 (7) TMI 379 - HIGH COURT OF DELHI].
Thus, the Arbitrator clearly erred in treating 16.1.2000 as the date of commencement of limitation. In view of the provisions contained in The Limitation Act, and the authorities cited, I find no force in the contention of the Respondent that the claim before the Arbitrator was within the period of Limitation. The said 'C' Form does not constitute an acknowledgment within the meaning of Section 18 of the Limitation Act and the Arbitrator misapplied the law on this aspect as well.
I, Therefore, set aside the impugned award as being contrary to Public Policy of India.
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