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Indian Laws - Case Laws
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2016 (12) TMI 1823 - MADRAS HIGH COURT
Election of the Office Bearers of the Church of South India - Amendment to the Constitution of the Church of South India - mode and manner of election of the office bearers - Whether the procedure prescribed for election in the bye-laws so framed can be said to be in derogation of the Constitution in any manner?
HELD THAT:- The Constitution is the governing book to facilitate the functioning of the Churches and provides a democratic process for elections to various office bearers. The Constitution itself provides the procedure for amendments and the documents placed before the learned Single Judge show that such amendment was made by following the procedure at least prima facie - Similarly, the enacting of the bye-laws is also something which is enshrined in Rule 3 of Chapter XIII and there also prima facie view has been found that it has been made as per the procedure. In fact, both have received overwhelming mandate of 16 out of the 22 Diocesan Councils.
The answer to the question raised would be in the negative - The bye-laws do refer to the principle of nomination by the Bishops from among themselves of the person who has to be elected as the Moderator and the Deputy Moderator. Similarly, for the General Secretary and the Treasurer also a Committee is constituted which would make the nomination, instead of Bishops nominating from amongst themselves. The Committee formed for nomination, in fact, is of a wider spectrum, including apart from Bishop, one Clergy and three lay persons, who bring the names before the Synod for the said posts and the vote is however with the Synod to elect the person. Thus, what is envisaged is a check before the elections.
Whether this check would defeat the principle of secret ballot or franchise principle of majority in any manner? - HELD THAT:- Once again the answer would be in the negative for the reason that the final say is with the Synod. The election has to take place from among the Bishops, who in a religious hierarchy are at the highest level. They from amongst them would find a suitable person and that too by unanimity or a overwhelming majority of two-third. The matter does not end at this since the Synod would have to ratify the same by a simple majority. Thus, if a member of the Synod is not happy with the nomination, they have a right of rejection - The final say thus remains with the Synod, but the collective wisdom of the Bishops as to who among them should be the Moderator has been given weightage. This cannot ipso facto be called a derogation of the Constitution, especially when the bye-laws have been approved, as also the amendment to the Constitution. The position would be the same in case of Deputy Moderator and the only difference for the posts of General Secretary and Treasurer would be that the nomination would be of the Committee which is, in fact, a more representative body as constituted.
Prima facie the bye-laws cannot be said to be in derogation of the Constitution and thus for the coming election process both the amended constitution and the bye-laws as framed would apply.
Appeal dismissed.
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2016 (12) TMI 1821 - SUPREME COURT
Doctrine of strict construction - commission of the offence by the company punishable Under Section 292 Indian Penal Code - vicarious liability - whether the Appellant who has been discharged Under Section 67 of the IT Act could be proceeded Under Section 292 Indian Penal Code?
HELD THAT:- Section 69 of the IT Act provides for power to issue directions for interception or monitoring or decryption of any information through any computer resource. It also carries a penal facet inasmuch as it states that the subscriber or intermediary who fails to comply with the directions issued under Sub-section (3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine - Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals.
The special and specific purpose which motivated the enactment of Section 14-A and Chapter III-A of the Delhi Rent Act would be wholly frustrated if the provisions of the Slum Clearance Act requiring permission of the competent authority were to prevail over them. Therefore, the newly introduced provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the contrary contained in the Slum Clearance Act.
If legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the Indian Penal Code and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence Under Section 292 Indian Penal Code.
The High Court has fallen into error that though charge has not been made out Under Section 67 of the IT Act, yet the Appellant could be proceeded Under Section 292 Indian Penal Code - the orders passed by the High Court and the trial court are set aside - Appeal allowed.
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2016 (12) TMI 1817 - DELHI HIGH COURT
Maintainability of petition - territorial jurisdiction - Murder - petitioner had been accused of killing 5 persons at Village Cher, Baikunthpur District, Chhattisgarh - petitioner/ non-applicant contends that this court is vested with jurisdiction concurrent to that of the High Court of Chhattisgarh - concept and place of 'cause of action'.
Nature of the power exercised by the President while deciding clemency of any convict - concept of cause of action - HELD THAT:- No doubt the protection of personal life and liberty as enshrined in Article 21 of the Constitution is paramount in any civilized society. All the limbs of the State must act to protect the same from any infraction.
The concept of cause of action was inserted as Article 226 (1A) by the 15th Amendment and later renumbered as Article 226 (2) by the 42nd Amendment. The said concept was comprehensively discussed in Alchemist Ltd. [2007 (3) TMI 382 - SUPREME COURT]. Further the Full Bench of this Court in M/S. STERLING AGRO INDUSTRIES LTD. VERSUS UNION OF INDIA & ORS., JAN CHETNA … VERSUS MINISTRY OF ENVIRONMENT AND FORESTS & ORS., MANU JAIN VERSUS SMT. NEERJA SHAH & ORS., M/S BAFNA HEALTHCARE PVT. LTD. & ORS. VERSUS COMMISSIONER OF CENTRAL EXCISE DELHI-IV & ORS., THE COMMISSIONER OF TRADE TAX & ANR. VERSUS M/S. RICOH INDIA LTD. & ORS. [2012 (6) TMI 76 - DELHI HIGH COURT - LB] had concluded that "[e]ven if a miniscule part of cause of action arises within the jurisdiction of this court, a writ petition would be maintainable before this court." At the same time, the full court had cautioned that the term “cause of action‟ should be understood as per Alchemist Ltd.
As to what amounts to “cause of action‟ is well-settled, simply put, it is the bundle of facts which the plaintiff must prove in order to succeed - For every action, there has to be a cause of action. If there is no cause of action, the plaint or petition has to be dismissed.
Whether cause of action can be said to have arisen in Delhi? - HELD THAT:- The argument of the learned counsel for the applicant is twofold; first, that cause of action is linked with crime and second, that rejection of mercy petition does not give rise to any cause of action. We are unable to accept both the contentions of the applicant - The concept of cause of action in respect of criminal proceedings cannot apply sensu stricto to the present proceedings as the same are not a continuation of the judicial proceedings but premised upon executive orders.
Learned counsel for the applicant had next contended that the rejection of mercy petition does not give rise to any cause of action. As an alternative, Mr. Jha had submitted it is the communication to the convict which may give rise to a cause of action. Again, we are unable to agree with the argument of learned counsel for the applicant. The mercy petition is the last thread between the convict and the gallows; the rejection of which leads to issuance of warrants of execution. It cannot be said that the same does not give rise to any cause of action to the convict as it closes the last hope upon which his very life is reliant. Therefore, in our view, the rejection of mercy petition does give rise to a cause of action at Delhi.
Principle of forum non conveniens - applicant has argued that the convenient forum would be Chhattisgarh High Court and not this court - HELD THAT:- It is clear that the courts should generally decide disputes upon which they have jurisdiction. They may decline to exercise such jurisdiction only if there are compelling reasons for not doing so. In doing so, the courts must apply a balancing test and reject to exercise jurisdiction only if there are compelling reasons keeping the Latin maxim Judex tenetur impertiri judicium suum in mind - In the present case, the learned counsel for the applicant has resisted the jurisdiction of this court stating that the records of the supervening circumstances are maintained in Chhattisgarh and that the convict is also in Chhattisgarh. On the contrary the counsel for the petitioner has contended that the material which is to be looked into is in the possession of the respondent no. 1, the seat of which is also in Delhi.
The material to be examined is the advice tendered by the cabinet and all the documents and records pertaining to the same are in Delhi and the decision has also been taken in Delhi. Further the location of the convict also makes no difference, as the convict being the dominus litis is free to invoke the jurisdiction of this court. Accordingly, the said contention of the applicant must also be rejected.
This Court is vested with the jurisdiction to entertain the present writ petition - Application dismissed.
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2016 (12) TMI 1796 - SUPREME COURT
Interpretation of statute - water dispute - whether the language employed Under Article 262 intends to oust the jurisdiction of this Court on all scores and counts? - fundamental rights of the citizens.
HELD THAT:- Having stated about the extent of jurisdiction of this Court Under Article 136 of the Constitution and upon taking note of the precedents pertaining to sphere of Article 262 read with Section 11 of the 1956 Act, we may state that what is excluded under the Constitution is the dispute or complaint.
The term ‘dispute’, as has been held in Gujarat State Cooperative Land Development Bank Ltd. v. P.R. Mankad and Ors. [1979 (1) TMI 245 - SUPREME COURT], means a controversy having both positive and negative aspects. In Canara Bank and Ors. v. National Thermal Power Corporation and Anr. [2000 (12) TMI 839 - SUPREME COURT], the term ‘dispute’ has been interpreted to mean that there is a postulation of an assertion of a claim by one party and denial by the other. The term ‘dispute’ may be given a broad meaning or a narrow meaning and the 1956 Act gives it a broad meaning, as has been held by this Court.
When the principles of statutory interpretation is applied to understand the legislative intendment of Section 6(2) it is clear as crystal that the Parliament did not intend to create any kind of embargo on the jurisdiction of this Court. The said provision was inserted to give the binding effect to the award passed by the tribunal. The fiction has been created for that limited purpose. Section 11 of the 1956 Act, as stated earlier, bars the jurisdiction of the courts and needless to say, that is in consonance with the language employed in Article 262 of the Constitution. The Founding Fathers had not conferred the power on this Court to entertain an original suit or complaint and that is luminescent from the language employed in Article 131 of the Constitution and from the series of pronouncements of this Court. Be it clearly stated that Section 6 cannot be interpreted in an absolute mechanical manner and the words “same force as on order or decision” cannot be treated as a decree for the purpose for excluding the jurisdiction of this Court.
The Civil Appeals are maintainable - Let the Appeals be listed at 3 p.m. on 15.12.2016 for further orders.
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2016 (12) TMI 1786 - MADRAS HIGH COURT
Possession of suit property - can the case be finally decided on all material points in controversy without an order of remand? - HELD THAT:- It would have been appreciable if the first appellate Court had engaged in an investigation on the alleged title of the plaintiff at least to the extent she had discharged her burden of proving the same before dealing with the aspect of non cross-examination of DW-1 by the plaintiff or of PW-3 by the defendant. This is the minimum and this is not appeared to have been done. All other principles requiring consideration for remanding a case follows this first step. Inasmuch as this endeavour is yet to be attempted, the impugned order of remand cannot be sustained.
The first appellate court is directed to hear the matter afresh, frame appropriate points and ascertain if the case can be decided finally with the available materials, and if for reasons that it is required to record it finds a need to remand the matter consistent with the law on the subject, it may so do it.
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2016 (12) TMI 1774 - SUPREME COURT OF INDIA
Negative remarks against the individuals in the newspapers based on statement of authority after search - Whether impugned publications make out a case for offence under the aforesaid provisions of the Indian Penal Code?
HELD THAT:- Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 of the Code of Criminal Procedure was amended in the year by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected.
The amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed.
Appeal allowed.
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2016 (12) TMI 1768 - DELHI HIGH COURT
Territorial Jurisdiction - Termination of contractual services with the respondent no.2 - non-service of termination order to petitioner - whether merely because the Government of India has issued its letter dated 27.10.2015 at Delhi would this ipso facto give territorial jurisdiction to this Court although this letter has not been communicated to the petitioner at Delhi and has in fact been communicated to the petitioner at Goa in terms of the subsequent letter dated 28.10.2015? - Held that:- A Constitution Bench of the Supreme Court way back in the year 1963 in the judgment in the case of Bachhittar Singh Vs. The State of Punjab [1962 (3) TMI 84 - SUPREME COURT OF INDIA] has held that orders passed in Government files unless communicated would not give a legal right to a person. The ratio of the judgment of the Supreme Court in the case of Bachhittar Singh has been consistently followed thereafter and it is the law of the land.
A cause of action in law means that an enforceable right in law accrues. When a right accrues simultaneously a liability also arises against a person. If an enforceable right arises only on communication of the order, then, a cause of action arises and is complete only when the communication of the order to the person concerned is complete. Without such communication of an order to the concerned person, the cause of action is not complete for filing of a case in a court of law.
This Court has no territorial jurisdiction and the writ petition is therefore dismissed
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2016 (12) TMI 1763 - SUPREME COURT
Declaration of a generating unit as Commercial Operation Date, "COD" - pre-conditions to be satisfied - date of commissioning - whether the COD for Unit No. 3, which was the first Unit to be commissioned, had been achieved on 31.3.2013?
Held that:- A perusal of the emails exchanged between the parties would show that the parties did not intend to amend by a written agreement any of the provisions of the PPA. Whereas an amendment of the PPA Under Article 18.1 would be bilateral, a waiver of a provision of the PPA would be unilateral Under Article 18.3 - Under Section 62, apart from novation of a contract and rescission of a contract, alteration of a contract is mentioned. Alteration is understood here, in the facts of the present case, in the sense of amendment. It is settled law that an amendment to a contract being in the nature of a modification of the terms of the contract must be read in and become a part of the original contract in order to amount to an alteration Under Section 62 of the Indian Contract Act.
No such thing having occurred on the present facts, it is clear that there is in fact no amendment by written agreement to the PPA.
The relevant Section therefore that would apply on the facts of the present case is Section 63. At this stage, it is important to advert to an argument made by counsel for the Appellants that Article 18.3 only refers to waivers that can expressly be made under various provisions of the agreement and not to Article 6 which, according to learned Counsel, cannot be waived under the PPA. Assuming that such argument is correct, and that Article 18.3 refers only to the mode of carrying out a waiver under the PPA, yet it is clear that Section 63 would operate on the facts of this case. This is for the reason that, when read with Section 1 of the Contract Act, it becomes clear that the PPA is subject to Section 63 of the Contract Act, which would allow a promise to dispense with or remit, wholly or in part, the performance of the promise made to him, and accept instead of it any satisfaction which he thinks fit - It is thus clear that if on facts there is a waiver of a provision of the PPA by one of the parties to the PPA, then Section 63 of the Contract Act will operate in order to give effect to such waiver.
The Appellate Tribunal is wholly incorrect in accepting the case of waiver put forward by learned Counsel for Sasan, and is equally incorrect in absolving the independent engineer for the test certificate given by him on 30.3.2013.
Applicability of Section 125 of the Electricity Act, 2003 - Held that:- We are afraid that we cannot agree. One substantial question of law is whether, when public interest is involved, waiver can at all take place of a right in favour of the generator of electricity under a PPA if the right also has an impact on consumer interest. This substantial question of law has been answered by us in the course of the judgment.
Appeal allowed.
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2016 (12) TMI 1757 - KERALA HIGH COURT
Quarrying operations carried on without the necessary sanctions and permitsblasting operations carried on for the purpose of the construction of a National Highway - prohibited operation or not - Held that:- There should also be an expert opinion taken as to the extent and capacity of blasting permitted, considering the proximity of the residences and the time and frequency to which it has to be limited. The complaint raised by the petitioners is with respect to the large scale damage caused to the residences of the petitioners as also the pollution occasioned. The damage caused to the buildings is by reason of the blast induced ground vibrations, the intensity of which would depend upon the quantity of explosives used, an assessment of which has not been undertaken by the district administration; by itself or through an expert agency.
There is also air pollution caused by the generation of air pressure and noise, on the actual blasting, as also the debris thrown into the atmosphere when the rock formations are turned into rubble. The activity hence is also one coming within the ambit of The Environment (Protection) Act, 1986 and The Environment (Protection) Rules, 1986 (referred to as EP Act and EP Rules). The standards prescribed by the PCB hence becomes applicable and without a consent to operate there can be no operations of blasting carried on which effectively is deemed to be a "Mine" as defined under the Mines Act and quarrying of minor mineral is carried on under the MMDR Act. The hazardous effect of blasting carried on has to be assessed and the pollution occasioned too, has to be contained.
The 7th respondent would be obliged to carry out the blasting work only with a consent to operate from the PCB. The understanding of the PCB that the requirements would not be applicable to such road widening work is obviously wrong and contrary to the statutory provisions. In such circumstance, the 7th respondent would have to necessarily obtain a mining permit under the KMMC Rules and a Consent to Operate from the PCB so as to carry on the blasting works - It is also to be verified whether the 7th respondent would have to obtain an Environmental Clearance under the Environmental Impact Assessment Notification No. 2006 (SO 1533E) dated 14.09.2006 issued by the Ministry of Environment and Forests and Climate Change; by S.O. No. 141(E) : dtd. 15.01.2016 - The District administration also would have to conduct a study by an expert agency, or the PCB as to the depth and number of holes, their diameter, the quantity of explosive charge used, the influence it has on the impact of the blasts and so on and so forth to regulate the magnitude of the ground vibrations and ensure that no damage is caused to the 'adjacent material' including buildings as has been specified in the Specifications of MOSRT & H; if at all it is permitted as per the specifications issued by the PCB as made applicable by the KMMC Rules.
The 7th respondent would be entitled to approach the appropriate authorities and continue with the work after getting the requisite sanctions - petition allowed.
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2016 (12) TMI 1742 - PUNJAB & HARYANA HIGH COURT
Smuggling - Heroin - Acquittal of Offences - the case of the prosecution is based upon depositions of official witnesses only with no independent witness coming forward to support the prosecution story. Therefore, the prosecution case is rendered doubtful and giving benefit of doubt to the accused, they should be acquitted of the charges framed against them - Held that:- Though the case of prosecution is based upon deposition of official witnesses but since no previous enmity is alleged or proved between the accused and such official witnesses, their testimonies cannot be discarded for such reason. It needs to be mentioned here that at the time of recovery two independent witnesses, namely, Shri Parteek Kapoor and Shri Balbir Ram had been associated but they were not examined by the prosecution during the trial. It needs to be mentioned here that the prosecution is not required to examine each and every witness cited by it in the list of witnesses and non-examining of independent witness does not affect the case of the prosecution adversely. Therefore, the statements of official witnesses in the absence of independent corroboration can certainly be relied upon. The prosecution has successfully proved its charge against the accused conclusively and affirmatively by leading sufficient cogent, convincing, reliable, ocular and documentary evidence, therefore, there is no question of accused being involved in this ease falsely.
In the instant case though Section 50 of the NDPS Act is not applicable, since recovery was not effected from personal search of accused but even then the officers of DRI had served both the accused with notice under Section 50 of the NDPS Act and the accused had given their option that their personal search and search of the car might be conducted in the presence of Gazetted Officer. Shri SJS Chugh, being Gazetted Officer was there and search of both the accused and that of the car was conducted in his presence. Therefore, there was no violation of Section 50 of the NDPS Act in this case.
The accused-convicts can be granted certain concession in that regard, keeping in view the facts and circumstances of the case and considering that no previous conviction is alleged or proved against the accused, they are stated to be only earning member of their family and they are behind the bars for several years - appeal disposed off.
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2016 (12) TMI 1734 - COMPETITION APPELLATE TRIBUNAL , NEW DELHI
Anti-Competitive act - Quantum of penalty - The Commission has calculated the penalty at the rate of 2% against the maximum of 10% on the average turnover of the Appellants for the years 2010-2011, 2011-2012 and 2012-2013 - Held that:- The term 'turnover' is interpreted for the purposes of Section 27(b) of the Act to mean value of goods and services which are made subject matter of investigation under Section 26 of the Act and hence liable for punishment under Section 27 of the Act - Penalty has to be calculated with reference to the gross premium received by UIICL as insurance provider under RSBY/CHIS scheme and penalty for each of the Appellants will be a proportion of their share in such premium.
In determining the rate of penalty at 2%, the Commission has considered the peculiarities of the insurance sector and the importance of insurer solvency for the consumer, as a mitigating circumstance. Bid rigging in public procurement for a social welfare scheme was treated to be an aggravating circumstance.
The aggravating circumstance identified by the Commission does not apply to the facts of this case. It cannot be denied, and the Commission had taken cognizance of the internal note of OICL(reproduced in paragraph 6.6 of this Order) indicating that the Appellants were aware of the likelihood of incurring losses and OICL actually refused to share business, but despite that, UIICL proceeded to bid for the tender. From such conduct, it is evident that the Appellants who were Public Sector Companies, in their zeal to participate in a Government sponsored Health Insurance Scheme benefiting the poor, ignored prudence and the restraints of the competition law. Such conduct cannot constitute an aggravating circumstance.
However, the burden of penalty will ultimately be transferred to public, as the Appellants are owned by the Government - the penalty be restricted to 1% of the relevant turnover.
Appeal allowed in part.
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2016 (12) TMI 1732 - KERALA HIGH COURT
Non consideration of license applications - remittance of fees - Deemed License - Held that:- The attempt of the petitioner was to deliberately refuse the registered cover and then claim benefit of the deeming provision. This Court is unable to countenance such a contention - This Court does not find any reason to entertain the writ petition - petition dismissed.
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2016 (12) TMI 1676 - SUPREME COURT
Whether a settlement of disputes or differences through a two-tier arbitration procedure as provided for in Clause 14 of the contract between the parties is permissible under the laws of India? - Held that: - the parties have agreed on a two tier arbitration system through Clause 14 of the agreement and Clause 16 of the agreement provides for the construction of the contract as a contract made in accordance with the laws of India. We see nothing wrong in either of the two clauses mutually agreed upon by the parties.
There is nothing in the A&C Act that prohibits the contracting parties from agreeing upon a second instance or appellate arbitration-either explicitly or implicitly. No such prohibition or mandate can be read into the A&C Act except by an unreasonable and awkward misconstruction and by straining its language to a vanishing point. We are not concerned with the reason why the parties (including HCL) agreed to a second instance arbitration-the fact is that they did and are bound by the agreement entered into by them. HCL cannot wriggle out of a solemn commitment made by it voluntarily, deliberately and with eyes wide open - the arbitration Clause in the agreement between the parties does not violate the fundamental or public policy of India by the parties agreeing to a second instance arbitration.
Assuming a two-tier arbitration procedure is permissible under the laws of India, whether the award rendered in the appellate arbitration being a 'foreign award' is liable to be enforced under the provisions of Section 48 of the Arbitration and Conciliation Act, 1996 at the instance of Centrotrade? If so, what is the relief that Centrotrade is entitled to? - Held that: - The appeals should be listed again for consideration of the second question which relates to the enforcement of the appellate award.
Appeal disposed off.
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2016 (12) TMI 1675 - DELHI HIGH COURT
Payment of lease rent and fees for facility management - Held that: - In order to appreciate the contention that the notice dated 05.08.2008 issued by Store One was not vague, as held by the Arbitrator, it is necessary to refer to Clause 7.2 of the Lease Deed as well as to the notice issued by Store One - the complaint made by Store One was general in nature and did not specify any particular covenant of the Lease Deed that had been breached. The deficiencies pointed out also lacked the necessary specifics. In view of the above, the Arbitrator’s conclusion that the notice was vague and untenable cannot by any stretch be held to be perverse or patently illegal.
The scope of judicial review under Section 34 of the Act is limited and the Court does not sit in appeal over the decision of the Arbitrator - unless Store One is able to establish that any of the grounds as specified under Section 34 of the Act are met, the impugned award cannot be set aside.
Petition dismissed.
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2016 (12) TMI 1662 - CHHATTISGARH HIGH COURT
Complaint under NI act filed beyond the prescribed period of limitation - Held that:- If we look into the contents of the complaint and the order passed by the Court below it would clearly reflect that in the instant also from the pleading made by the complainant in itself makes it clear that the cheque for the first time was dishonoured on 03.03.2011 and legal notice was issued to the Respondent on 04.03.2011. Therefore, in view of the authoritative decision of the Supreme Court in the aforementioned judgment for all practical purposes the cause of action for the purpose of filing a case under the provisions of the N.I. Act so far as the Petitioner's case is concerned would be 04.03.2011 and not any subsequent dates.
Accordingly, this Court is of the opinion that the Court below has not committed any error of law in rejecting the complaint filed by the Petitioner barred by limitation.
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2016 (12) TMI 1602 - SUPREME COURT
Licences for liquor shops both on the national and state highways - Held that:- A detailed survey has been made by the OSD in which observations in regard to liquor shops located along the highway have been recorded. We may also advert at this stage to a letter dated 4 August 2012 of the Project Director of National Highways Authority of India (NHAI) to the Deputy Commissioners of various regions in Punjab. The letter highlights that on a stretch of 291 kilometres on the Panipat-Jalandhar section of NH-1, there are as many as 185 liquor shops (though in comparison the trauma centres and hospitals where immediate medical service can be provided to road accident victims is almost negligible). Many of the liquor shops have encroached on national highway land. Though, NHAI has sought the removal of these shops, “concrete action” is yet to be taken due to the lack of support from various quarters. Liquor shops, the Project Director notes, are owned by influential people making the removal of unauthorised encroachment impossible without the support of the district administration.
Thus as concluded no licences for liquor shops should be allowed both on the national and state highways. Moreover, in order to ensure that this provision is not defeated by the adoption of subterfuge, it would be necessary to direct that no exception can be carved out for the grant of liquor licences in respect of those stretches of the national or state highways which pass through the limits of any municipality corporation, city, town or local authority. Necessary safeguards must be introduced to ensure that liquor vends are not visible or directly accessible from the highway within a stipulated distance of 500 metres form the outer edge of the highway, or from a service lane along the highway.
Also duly borne in mind the practical difficulty which has been expressed on behalf of the licence holders (including those in the town of Mahe) and the states that there are licences which have been duly renewed and whose term is still to expire. The states apprehend that premature termination may lead to claims for refund of licence fee for the unexpired term, with large financial implications. Hence we would direct that current licences may continue for the existing term but not later than 1 April 2017.
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2016 (12) TMI 1561 - MADHYA PRADESH HIGH COURT
Recovery of the debt - jurisdiction of the Recovery Officer - recovery of the amount by execution of the certificate - Held that:- It is not the intendment of the Act that while the basic liability of the defendant is to be decided by the Tribunal under Section 17, the Banks/Financial institutions should go to the Civil Court or the Company court or some other authority outside the Act for the actual realisation of the amount. The certificate granted under Section 19(22) has, in our opinion, to be executed only by the Recovery Officer. It is also observed that the adjudication of liability and the recovery of the amount by execution of the certificate are respectively within the exclusive jurisdiction of the Tribunal and the Recovery Officer and no other Court or authority much less the Civil Court or the Company Court can go into the said questions relating to the liability and the recovery except as provided in the Act.
Considering the aforesaid, we are unable to agree with the contention of the learned Senior Counsel for the appellants that the Bank has a lien over the surplus amount of ₹ 29,80,150.80/-. The writ court has rightly directed the appellant - Bank to refund the amount to the respondent No.1 along with interest. No case to interfere with the order dated 27/07/2016, passed by the learned writ court, as prayed is made out.
Also gone through the application for contempt filed by the respondent No.1 for drawing contempt proceedings against the officers of the appellant - Bank for non-compliance of the order dated 9/09/2016, 26/11/2016 and 22/11/2016.Admittedly, the amount was deposited in the account of respondent No.1 only on 18/11/2016 and, thus, we direct the office to register the application for drawing contempt petition against the appellants as per rules, separately and fix the matter in the first week of January, 2017.
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2016 (12) TMI 1560 - MADHYA PRADESH HIGH COURT
Application under Section 11 of the Arbitration and Conciliation Act - seeking appointment of independent arbitrator for adjudication of the disputes arisen between the applicant and respondents - Held that:- The first objection raised by the respondent regarding pendency of the proceeding under BIFR and registration under SICA is not tenable. In addition to the aforesaid, it is to be noted here that The Sick Industrial Companies (Special Provisions) Repeal Act, 2003 has been incorporated by Act No.1 of 2004 which has been implemented w.e.f today vide the Gazette of India Extraordinary, Ministry of Finance (Department of Financial Services) Notification New Delhi, the 25th November, 2016 of the Central Government. As per Section 5 under the saving clause nothing has been saved which runs contrary to the aforesaid legal position to which any benefit may be derived by the respondents.
Another objection is with respect to not agreeing on the name for appointment of Hon’ble Mr. Justice P.D. Mule (Retd.). Therefore, it is apparent that respondent is not agreeing on the name of arbitrator proposed by the applicant. In view of the aforesaid, exercising the power as per Section 11 of the Arbitration and Conciliation Act, 1996, in the opinion of this Court, Hon’ble Mr. Justice A.M. Naik (Retd.) may be appointed as arbitrator to resolve the dispute on a fees as specified in the Schedule which shall be borne by both the parties equally. The Registry of this Court may take appropriate step seeking consent of the arbitrator and place the same on record.
In view of the foregoing, this application is hereby allowed and Hon’ble Mr. Justice A.M. Naik (Retd.) is appointed as arbitrator.
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2016 (12) TMI 1250 - GAUHATI HIGH COURT
Prohibition to licences for the sale of liquor along National and State Highways - constitutional validity of explanation appended to Rule 289(2)stating such part of National Highway or State Highway which are situated within the limits of any Municipal Corporation, Municipality or Town Committee, shall not be treated as restriction - Held that:- The Supreme Court very recently has directed that all States and Union Territories shall forthwith cease or desist from granting licences for the sale of liquor along National and State Highways and the prohibition shall also extend to and include stretches of such Highways which fall within the limits of a Municipal Corporation, City, Town or Local Authority. It is thus clear that the State Government is completely debarred from granting licences for the sale of liquor along National and State Highways including the stretches of such Highways which fall within the limits of Municipal Corporation, City, Town or Local Authority. We, accordingly, finally dispose of this writ petition with a recommendation to the State Government to immediately re-examine the impugned explanation in the light of above mentioned SC order. Also the petitioner has no choice, but to close his liquor shop on the State Highway.
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2016 (12) TMI 1201 - ANDHRA PRADESH HIGH COURT
Exercise of the power conferred by Section 14 of SARFAESI Act - sale the land - Held that:- When the status of the party being a borrower and the property being a secured asset is questioned, this Court is of the opinion that the bar under Section 34 of the SARFAESI Act would not apply at all. A third party to a loan transaction who is actually in possession would be left with no remedy if the jurisdiction of the civil Court is held to be barred and no separate remedy is provided to him under the SARFAESI Act, as Section 17 thereof cannot be invoked by him.
As the petitioner was protected by the interim order granted by this Court and the sale held by the 1st respondent company has not been confirmed pursuant thereto, the petitioner shall continue to have the benefit of the said interim order for a period of six weeks from today. In the meanwhile, it would be open to him to seek appropriate interim relief from the civil Court. We make it clear that we have not ventured into the merits of the matter and all issues are left open for adjudication by the civil Court.
Subject to the above, the writ petition is dismissed leaving it open to the petitioner to approach the competent civil Court.
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