|
Advanced Search Options
Indian Laws - Case Laws
Showing 81 to 100 of 680 Records
-
2016 (11) TMI 1701 - SUPREME COURT
Maintainability of a cross-objection - Code of Civil Procedure is applicable to an appeal preferred Under Section 37 of the Act - HELD THAT:- In juxtaposition with the provisions contained in 1996 Act, it seems that the legislature has intentionally not kept any provision pertaining to the applicability of the Code of Civil Procedure. On the contrary, Section 5 of 1996 Act lays the postulate, that notwithstanding anything contained in any other law for the time being in force in matters covered by Part I, no judicial authority shall intervene except so provided wherever under this Act.
In International Security & Intelligence Agency Ltd. [2003 (2) TMI 498 - SUPREME COURT], a three-Judge bench was dealing with maintainability of a cross objection under Order XLI Rule 22 of the Code of Civil Procedure. It is apt to mention here that the controversy arose in the context of 1940 Act. While dealing with the same, the three-Judge bench ruled thus a cross objection can be preferred if the applicant could have sought for the same relief by filing an appeal in conformity with the provisions of Section 39(1) of the Act. If the subject-matter of the cross objection is to impugn such an order which does not fall within the purview of any of the categories contemplated by Clauses (i) to (vi) of Sub-section (1) of Section 39 of the Act, the cross objection shall not be maintainable.
As is manifest, a person grieved by the award can file objection Under Section 34 of the 1996 Act, and if aggrieved on the order passed thereon, can prefer an appeal. The court can set aside the award or deal with the award as provided by the 1996 Act. If a corrective measure is thought of, it has to be done in accordance with the provision as contained in Section 37 of the 1996 Act, for Section 37(1) stipulates for an appeal in case of any grievance which would include setting aside of an arbitral award Under Section 34 of the Act.
Section 5 which commences with a non-obstante Clause clearly stipulates that no judicial authority shall interfere except where so provided in Part 1 of the 1996 Act. As we perceive, the 1996 Act is a complete Code and Section 5 in categorical terms along with other provisions, lead to a definite conclusion that no other provision can be attracted. Thus, the application of Code of Civil Procedure is not conceived of and, therefore, as a natural corollary, the cross-objection cannot be entertained.
The analysis made in ITI Ltd. [2002 (5) TMI 706 - SUPREME COURT] to the effect that merely because the 1996 Act does not provide Code of Civil Procedure to be applicable, it should not be inferred that the Code is inapplicable seems to be incorrect, for the scheme of the 1996 Act clearly envisages otherwise and the legislative intendment also so postulates - As we are unable to follow the view expressed in ITI Ltd. (supra) and we are of the considered opinion that the said decision deserves to be re-considered by a larger Bench.
Let the papers be placed before the Hon'ble the Chief Justice of India for constitution of an appropriate larger Bench.
-
2016 (11) TMI 1698 - APPELLATE TRIBUNAL FOR ELECTRICITY, NEW DELHI
Disallowance of fuel cost for the period FY 2014-15 and FY 2015-16 - Whether the Appellant is entitled to claim the fuel costs incurred by it due to delay in execution of Fuel Supply Agreement (FSA) with Coal India Limited (CIL) and its subsidiaries for reasons not attributable to the Appellant in its tariff to Respondent No.2, with whom there is a valid, duly approved Power Purchase Agreement, in accordance with the applicable Tariff Regulations of State Commission? - HELD THAT:- This issue is answered in favour of the Appellant for allowing cost of coal for Unit-I limiting to the extent of what has been allowed/is being allowed by the State Commission for the corresponding period for the supply under FSA arrangement for the generation from Unit-II of the Appellant to Respondent No.2.
Approval of Auxiliary Energy Consumption of 9.05% for FY 2014-15 in paragraphs 2.5.9 to 2.5.19 of the Impugned Order as against 9.61% as proposed by the Appellant - HELD THAT:- Considering the actual Auxiliary Energy Consumption as 9.61%, the availability for the year works out to be 85.40% which is more than the Target Availability and consequently, the Appellant is entitled for recovery of entire Annual Fixed Charges for FY 2014-15.
The consequent computation of Availability in paragraph 2.3 of the Impugned Order of 84.83% as against 85.40% as proposed by the Appellant - HELD THAT:- The compensation as per IEGC amendments are described under Sub Regulation 6.3 B. Further as per Notification dated 6.4.2016, the IEGC fourth amendment Regulations shall come into force with effect from date of publication in Official Gazette except subregulation 6.3B which shall come into force on such date as the Commission may appoint by notification in the Official Gazette - Hence these Amendments related to APC have not come into effect. Hence the State Commission cannot allow such increase in Auxiliary Power Consumption due to part load compensation due to backing down instructions by SLDC. Consequent to this, there can be no change in the availability of the Power Station for the period FY 2014-15. This issue is decided against the Appellant.
Approval of Gross Station Heat Rate of 2401 kcal/kwh as against 2457 kcal/kwh for FY 2014-15 as proposed by the Appellant - HELD THAT:- In view of the fact that the Appellant's Generating Station was in the 1st and 2nd year of operations after its Commercial Date and the Appellant had produced sufficient material before Respondent No.1 for exercise of such powers, is decided against the Appellant.
Consideration of actual Interest on Working Capital (IWC) of ₹ 33.43 Crore for computing efficiency gain on the purported basis - HELD THAT:- Once having recognized that there is a requirement of funds to manage operations in business, it cannot be implied that the same has been met through operational efficiency as has been held by the State Commission in the Impugned Order.
Interest on Working Capital - HELD THAT:- The State Commission had sought the month-wise cash flow statement from VIPLG to substantiate that the internal accruals were utilised to meet the working capital requirement. However, in the present matter, the Interest on Working Capital as per audited accounts was ₹ 33 Crore. Therefore, the State Commission considered ₹ 33 Crore as the actual Interest on Working Capital.
Computation of Income Tax as proposed by the Appellant instead of restatement of the same based on the Impugned Order for the period F.Y. 2014-15 onwards - HELD THAT:- The State Commission has allowed the Income Tax for FY 2015-16 in accordance with the Regulation 34.1 of the MYT Regulations, 2011. The State Commission has considered the Income Tax for FY 2015-16 in the Impugned Order on provisional basis - Further the Regulation 34.2 of the MYT Regulation provides for the the reimbursement of difference between the actual and approved Income Tax at the time of final True –up. Therefore, the provisionally approved Income Tax for FY 2015-16 and the subsequent 3rd Control Period shall be subject to final truing up. Hence we are in agreement with the decision of the State Commission in this issue - the issue is decided against the Appellant.
Disallowance of Ash Utilization and Disposal Expenses and the findings - HELD THAT:- The State Commission has not allowed the Ash disposal expenses on the ground of inappropriate design. The Ash disposal area is even not in accordance with the CEA guidelines. Therefore the Appellant was held fully responsible for this lapse and the impact of such disposal difficulties was not allowed to be passed on to the Beneficiaries - the impact of any such lapse in planning/ design of the Ash Utilization facilities should not be passed on to the Beneficiaries. Hence this issue is decided against the Appellant.
Disallowance of Additional O&M expenses towards RO Plant - HELD THAT:- The State Commission in its Impugned Order has detailed out the issue related to additional O&M expenses for RO Plant as well as normative O&M expenses allowed in the Impugned Order - We have perused the findings of the State Commission and do not find any infirmity.
Jurisdiction of the State Commission to order refund of the excess amount - HELD THAT:- As in the case of FY 2014-15, the State Commission directed the Appellant to refund the Revenue Surplus of FY 2015-16, determined as ₹ 405.89 crore upon provisional truing up, to Rlnfra-D in 6 monthly instalments.
Whether Respondent No.1 has the power, authority or jurisdiction to pass an order of refund as has been done in the present case? - HELD THAT:- The Tariff can be determined by the State Commission with either upward revision resulting in increase in charges payable by the Consumer or have the downward revision with reduction in charges payable. Hence we decide this issue against the Appellant.
Appeal allowed in part.
-
2016 (11) TMI 1691 - CALCUTTA HIGH COURT
Extension of Interim Order - HELD THAT:- Let this matter appear in the list on 1st December, 2016 under the same heading as "Extension of Interim Order" at the top.
The interim order which was passed earlier, will continue till 15th December, 2016 or until further order whichever is earlier.
-
2016 (11) TMI 1690 - CALCUTTA HIGH COURT
Application for vacating the interim order - agreement for sale transcribed on sufficient Stamp Paper or not - HELD THAT:- The agreement for sale which was allegedly entered into between the parties, has also annexed to the injunction application. The agreement was typed out on ten rupee Non-Judicial Stamp Paper - it is found that the agreement itself was typed out on insufficient Stamp Paper. Such an agreement for sale parse cannot be enforced unless the document is impounded. Impounding can be done only when the original agreement is tendered into evidence.
The plaintiff claims that he has paid a sum of ₹ 65,00,000/- on account of earnest money in cash. The agreement does not contain any receipt clause. No separate receipt is also forth-coming from the side of the plaintiff showing payment of ₹ 65,00,000/- to the defendants; even the agreement does not contain any description of the notes by which such payment was tendered to the plaintiff - It cannot be held that a prima facie case has been made out by the plaintiff for going for trial.
The learned Trial Judge did not commit any illegality by refusing to pass any ad interim order of injunction in such a suit - Appeal dismissed.
-
2016 (11) TMI 1689 - SUPREME COURT
Acquisition of Land Under Section 305 of Madhya Pradesh Municipal Corporation Act, 1956 - Appellants' main submission was that they had obtained the permission from the Municipal Corporation so as to raise construction - HELD THAT:- Section 305 deals with the power of Corporation to regulate line of buildings. If any part of the building falls within the regular line of a public street either existing or as determined for the future or beyond the front of immediately adjoining building, the Corporation may issue a notice either that part which is projecting or some portion of the part projecting, shall be removed or that when the building is rebuilt, the portion projecting shall be set back to and the portion of the land added to the street by such "setting back or removal", shall henceforth be deemed to be part of the public street and shall vest in the Corporation - The interpretation suggested upon Section 292, as to the expression scheme Under Section 291 of the Act of 1956 or only to a scheme Under Section 49/50 of the Act of 1973 cannot be accepted. The provisions of the Act of 1973 and the provisions of Section 292 of the Act of 1956. Under the Act of 1973, there is a regional plan, development plan or town development scheme they have to be understood included in expression 'scheme' under the provisions of Section 292.
Article 300A enables the State to put restrictions on the right by law but the same should not be arbitrary or excessive or beyond what is required in public interest. The imposition of restriction must not be disproportionate to a situation or statute. Legislation providing for deprivation of property Under Article 300A must be just, fair and reasonable - it cannot be said that illusory compensation is provided Under Section 306 read with Section 387. The decision renders no help to the cause espoused on behalf of the Appellants and on a closer scrutiny, rather counters it.
Reasonable compensation is payable by the Corporation for building or part thereof excluding the land under proviso to Section 305(1) and compensation for inclusion of land in public street is payable Under Section 306(3) of the Act. We do not find any ground so as to read down the provisions. We refrain to comment upon the submission with respect to the granting additional FAR is not acceptable to some Appellants, as it is not the stage of dealing with compensation how the total indemnification is to be made, whether FAR is acceptable to the Appellants or not, cannot be decided at this stage - The Appellants are at liberty to raise the question with respect to the adequacy of compensation and how the provision of Section 387 has to be interpreted and what would be the just compensation at the appropriate stage of determination of compensation.
The appeals being devoid of merits are hereby dismissed.
-
2016 (11) TMI 1688 - SUPREME COURT
Maintainability of application - alternative remedy available to the Petitioner by way of revision - failure to make loan repayment - Section 156(3) of the Code of Criminal Procedure - HELD THAT:- The order of the High Court has no legs to stand in view of the law laid down by this Court in PRABHU CHAWLA VERSUS STATE OF RAJASTHAN AND ORS. [2016 (9) TMI 1595 - SUPREME COURT]. In view of the divergent opinions of this Court in the case of DHARIWAL TOBACO PRODUCTS LTD. AND ORS. VERSUS STATE OF MAHARASHTRA AND ORS. [2008 (12) TMI 811 - SUPREME COURT] and MOHIT ALIAS SONU AND ANOTHER VERSUS STATE OF U.P. AND ANOTHER [2013 (7) TMI 1005 - SUPREME COURT], the matter was placed before the three Judge Bench of this Court. The three Judge Bench took the view that Section 482 begins with a non-obstante clause to state "nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". As Section 397 of Code of Criminal Procedure is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers Under Section 482, Code of Criminal Procedure only to petty interlocutory orders. A situation is wholly unwarranted and undesirable.
Thus, mere availability of alternative remedy cannot be a ground to dis-entitle the relief Under Section 482 Code of Criminal Procedure - also it is felt that the learned Judge without appreciating any of the factual and legal position, in a mechanical way, passed the impugned order, which warrants interference by this Court.
The matter is remanded to the High Court for reconsideration in the light of the settled legal position - Appeal allowed by way of remand.
-
2016 (11) TMI 1675 - MADRAS HIGH COURT
Declaration of permanent injunction - declaration to declare his easementary right over the suit schedule cart track - permanent injunction restraining the defendants from interfering with his right of enjoyment of such easementary right - burden to prove - evidence to discharge the onus - Section 6(c) of the Transfer of Property Act, 1882 - HELD THAT:- An "easement" is a right conferred for the beneficial enjoyment of the dominant heritage and the owner of such dominant heritage is called dominant owner while the land in which such easement right is to be exercised is a servient heritage and that the owner of such servient heritage is called as servient owner - what cannot be transferred is only an easement exclusively without transferring the dominant heritage, namely, the land for which such easement right is conferred in the servient heritage. In other words, a transfer of dominant heritage would automatically pass the easement right also to the person in whose favour such transfer takes place. To put it more clearly, the easement right and dominant heritage cannot be transferred separately by segregating one from the other to two different persons, since such easementary right would automatically follow the right on the dominant heritage if such dominant heritage is transferred to another person - the contention of the learned counsel for the appellant cannot be sustained. The lower appellate Court has rightly decreed the suit taking into consideration of the existence of Ex.A1 agreement followed by the sale deeds marked as Exs.A2 to A4 in favour of the plaintiff - Decided against appellant.
One more aspect to be noted in this case is that the defendants 1 and 2, who are the parties to the agreement under Ex.A1, though filed their written statement, have, however, not chosen to contest the matter latter. They remained exparte. They were not even examined as witnesses on the side of the defendants. Needless to say that any amount of pleading without there being any evidence in support of such pleading, cannot be looked into or sustained or held to be proved especially, when the other side disputes such claim. Admittedly, the 3rd defendant, who is the appellant herein, is only a subsequent purchaser during the pendency of the suit. He was impleaded as a party defendant only at a later point of time - Therefore, he is not competent to speak anything about the intention of the parties to Ex.A1. If the defendants 1 and 2 have not come forward to contest the suit and dispute the claim of the plaintiff, the 3rd defendant, a subsequent purchaser, cannot dispute the claim of the plaintiff, when such claim is based on the agreement under Ex.A1 entered into between the vendors of the plaintiffs and the defendants 1 and 2. In fact, the mischief mongers are the defendants 1 and 2 who dishonestly executed the sale deed in favour of the 3rd defendant in respect of suit 'B' Schedule, knowing fully well that they are bound by the terms of earlier agreement for easementary right under Ex.A1 fastened on such property.
The trial Court failed to consider all these aspects and erroneously dismissed the suit which the lower Appellate Court has set right by reversing such findings and decreeing the suit - the substantial questions of law raised in this appeal are answered against the appellant.
Appeal dismissed - decided against appellant.
-
2016 (11) TMI 1658 - SUPREME COURT
Legality of the proceedings under Section 340 of the Code of Criminal Procedure, 1973 - grant of interim injunction - High Court, on account of the contradictory stand taken by the appellant herein who was the first respondent before the High Court took the view that the conduct of the appellant has affected the administration of justice, and therefore, it was expedient in the interests of justice to file a complaint against the appellant under Section 340 of the Code.
HELD THAT:- The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code (45 of 1860); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of the CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution.
In the interests of justice the matter needs to be laid to rest. The appeal is hence allowed. The impugned order to the extent of initiation of the proceedings under Section 340 of the CrPC is set aside - decided in favor of appellant.
-
2016 (11) TMI 1639 - KERALA HIGH COURT
Condonation of delay - reasons for delay - HELD THAT:- Petition for condonation of delay of 554 days is dismissed.
Consequently, the appeal is also dismissed.
-
2016 (11) TMI 1626 - SUPREME COURT
Complaint of defamation - Section 200 of the Code of Criminal Procedure, 1973 - offences punishable under Sections 500 and 501 read with Section 34 of the Indian Penal Code, 1860 - the petition filed by the Respondents Under Section 482 of the Code of Criminal Procedure has not been decided by the High Court on its merits - HELD THAT:- The case is remitted to High Court for reconsideration - We make it clear that all contentions which are available to the Appellant, including the maintainability etc. of the said petition, would be open to the Appellant which can be argued before the High Court and the High Court shall deal with the same - appeal allowed by way of remand.
-
2016 (11) TMI 1606 - SUPREME COURT
Grant of Excise licence to run country liquor shops - one eligibility conditions for grant of license is that licensee and his family members must possess good moral character and have no criminal background - It was alleged in the FIR that Vinod Kumar Tripathi and his wife Asha Tripathi, Respondent Nos. 2 and 3 respectively had committed fraud and forgery by opening bank account in the name of the Respondent No. 1 by affixing his photograph, submitting his ID and had withdrawn amount by forging his signature and deposited the security amount with District Excise Officer, Allahabad - Held that:- It is expected that the High Courts while dealing with the lis are expected to focus on the process of adjudication and decide the matter. The concept, what is thought of or experienced cannot be ingrained or engrafted into an order solely because such a thought has struck the adjudicator. It must flow from the factual base and based on law. To elaborate, there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner. To say the least, some of the directions issued are not permissible and all of them are totally unrelated to the case before the High Court - the High Court should have been well advised to restrict the adjudicatory process that pertained to the controversy that was before it.
A Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law.
Some of the directions are in the sphere of policy. A court cannot take steps for framing a policy. As is evincible, the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. Be it stated, the directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country.
Thus, the High Court has crossed the boundaries of the controversy that was before it. The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it - In the maintenance of law and order situation the judicial officers are not to be involved. But the executive has to remain absolutely alive to its duties and we are sure, the State Government shall look into the aspects and endeavour to see that appropriate steps are taken to maintain the law and order situation.
The impugned order passed by the High Court is set aside - appeal allowed.
-
2016 (11) TMI 1586 - KARNATAKA HIGH COURT
Offences punishable under the provisions of the Prevention of Corruption Act (PC Act) 1988 - Petitioner has received illegal gratification - Held that:- The material in support of the same and the further narration of the sequence of events, do not indicate a direct demand or receipt of illegal gratification by the petitioner, from any party. There is reference to accused no.2, the petitioner's son, or a the firm of which Accused no. 4 & 5 were partners, of having received huge amounts, which were said to be compensation amounts payable to land owners. The said compensation amounts were termed as additional compensation paid directly by Itasca and UTL to land owners through the firm of which accused no. 4 & 5 were partners - The said compensation amounts were termed as additional compensation paid directly by Itasca and UTL to land owners through the firm of which accused no. 4 & 5 were partners. These above circumstances are apparent, prima facie, but whether the said amounts were paid to and received on behalf of the petitioner cannot be presumed.
Irregularities in allotment of lands - Held that:- This was not a possibility, the allotment of land is not made by the petitioner as is evident from the facts stated. The allotment is made by the SHLCC.
Undue influence on various persons including the officials of the KIADB - Held that:- The role of the petitioner does not go beyond the stage of having been a ex-officio member of the SHLCC. The allegation is hence vague and would not lead to framing of any tenable charge.
The case of the prosecution is that there were transfer of funds, which were characterized as illegal gratification that was ultimately received by the petitioner through the other accused. The transfer was as a result of a well engineered conspiracy involving two corporate bodies from whose accounts the monies came, namely, Itasca, purportedly represented by Accused no.3 and UTL, represented by accused no.6. Significantly, the said corporate bodies are not named in the charge sheet. This is inexplicable as there is no immunity available to the companies from prosecution, merely because prosecution would be in respect of offences for which punishment prescribed is mandatory imprisonment and fine. It is also to be kept in view that prosecution, conviction and sentencing are different stages in a criminal trial. The stage for sentencing is reached only after a verdict of guilt is pronounced after a full fledged trial.
Further, for the reason that the two corporate bodies namely, Itasca and UTL not having been named in the charge sheet as the accused, the theory of conspiracy has no foundation and cannot be sustained against any of the accused.
Petition allowed.
-
2016 (11) TMI 1569 - CENTRAL INFORMATION COMMISSION, NEW DELHI
Calling of information - applicant stated that he was terminated from service and wants the relevant file notings in this regard - RTI Act - Held that:- The RTI Act provides no exemption from disclosure requirements of sub-judice matters. The only exemption for sub-judice matters is regarding what has been expressly forbidden disclosure by a court or a tribunal and what may constitute contempt of court.
In the present case, the relevant file is with regional office Agra and the applicant has moved the CAT against his termination order. However, this cannot be ground for denial of file noting relating to the applicant’s own termination matter - The CPIO is accordingly directed to provide the information after collecting the same from regional office within 30 days from the date of receipt of this order.
Appeal allowed - decided in favor of appellant.
-
2016 (11) TMI 1551 - MADRAS HIGH COURT
Delay in filing application - time limitation - after 1600 days delay, applicant approached the Court for setting aside the exparte decree - Held that: - Admittedly, as per Section 5 of the Limitation Act, this petitioners / defendants 2 and 3 should have filed the application for setting aside the exparte decree within a period of 30 days from the date of exparte decree. But, this application was filed after a long delay of 1600 days and there was no proper explanation given by the petitioners / defendants 2 and 3 - The Hon ble Apex Court time and again directed the parties to give proper explanation for each and every day delay, but they were not given any proper reasons in this case.
For the huge delay of 1600 days delay, there was no proper explanation by the petitioners / defendants 2 and 3, in fact the conduct of the defendants 2 and 3 namely petitioners herein that there was gross negligence on the part of them in depending the matter - This Court and the Hon ble Apex Court clearly stated that it is a settled legal principle that law of limitation is founded on Public Policy not meant to destroy rights of parties, but to see that the parties do not resort to dilatory tactics.
The parties ought to be vigilant in Court proceedings and the duty of the parties to conduct the case and contact their advocate in proper - it is their bounden duty for the petitioners / defendants 2 and 3 that they would appear before the Court regularly without absenting themselves and verifying about the status of the case - revision petition dismissed - decided against petitioner.
-
2016 (11) TMI 1541 - CHHATTISGARH HIGH COURT
Whether mere filing of execution under Section 34 of the Act of 1996 for setting aside the award passed under the Act of 2006, the execution filed under Section 36 of the Act of 1996 would stand suspended or Section 19 of the Act of 2006 would prevail over the Act of 1996 and 75% of the deposit under Section 19 of the Act of 2006 is mandatory to make an application under Section 34 of the Act of 1996 maintainable? - Held that: - the application u/s 34 of the Act of 1996 would be maintainable for setting aside the award passed by the Micro and Small Enterprises Facilitation Council constituted under Section 20 of the Act of 2006 but while filing an application, the appellant has to deposit 75% of the amount in terms of the award in the manner indicated by such court and as such, the application under Section 34 of the Act of 1996 challenging the award passed by the Facilitation Council has to be read along with Section 19 of the Act of 2006 and in order to make the application under Section 34 of the Act of 1996 maintainable and duly constituted, a mandatory deposit of 75% of awarded amount has to be made in the manner directed by the court trying that application.
In the present case, the award was passed by the Facilitation Council on 12-3-2014, the respondent herein filed application for execution of award on 21-8-2014 and thereafter on 19-2-2015, application under Section 34 of the Act of 1996 was filed by the petitioner for setting aside the award in which the respondent herein objected that compliance of mandatory provision of Section 19 of the Act of 2006 has not been made therefore application u/s 34 of the Act of 1996 cannot be maintained - The trial Court has already held that the petitioner's application u/s 34 of the Act of 1996 is not maintainable for want of prerequisite deposit u/s 19 of the Act of 2006 as such, the award is clearly executable, as the petitioner's application u/s 34 of the Act of 1996 is not duly constituted and not liable to be entertained, and rightly held so by the trial Court and the petitioner's application has rightly been rejected by the trial Court.
Whether in view of the objection filed u/s 22(3) of the SIC Act by the petitioner, the executing court has no jurisdiction to execute the award? - Held that: - the petitioner's plea in regard to applicability of the SIC Act is not complete in itself, rather halfhearted, it has neither been established that the awarded amount has been included in the scheme approved by the BIFR nor it has been shown how the civil court has jurisdiction in view of Section 26 of the SIC Act - the learned executing court is absolutely justified in rejecting the objections raised by the petitioner herein in execution and no error of jurisdiction has been committed while rejecting those objections raised by way of applications.
Petition dismissed.
-
2016 (11) TMI 1529 - SUPREME COURT
Corporate Guarantee - proof of substantial defence - offence under FEMA - Held that:- As observed it is clear that a sum of ₹ 418 crores has been paid by FMO, the Dutch company, to Vinca for purchase of shares as well as compulsorily convertible debentures. This transaction by itself is not alleged to be violative of the FEMA regulations.
The suit is filed only on invocation of the Corporate Guarantee which on its terms is unconditional. It may be added that it is not the defendant's case that the said Corporate Guarantee is wrongly invoked.
Payment under the said Guarantee is to the debenture trustee, an Indian company, for and on behalf of Vinca, another Indian company, so that prima facie again there is no infraction of the FEMA Regulations. Since FMO becomes a 99% holder of Vinca after the requisite time period has elapsed, FMO may at that stage utilise the funds received pursuant to the overall structure agreements in India. If this is so, again prima facie there is no breach of FEMA Regulations.
At the stage that FMO wishes to repatriate such funds, RBI permission would be necessary. If RBI permission is not granted, then again there would be no infraction of FEMA Regulations. The judgment in Immami Appa Rao’s [1961 (9) TMI 87 - SUPREME COURT]case would be attracted only if the illegal purpose is fully carried out, and not otherwise.
Based on the aforesaid, it cannot be said that the defendant has raised a substantial defence to the claim made in the suit. Arguably at the highest, as held by the learned Single Judge, even if a triable issue may be said to arise on the application of the FEMA Regulations, nevertheless, we are left with a real doubt about the Defendant’s good faith and the genuineness of such a triable issue.
Rs.418 crores has been stated to be utilized and submerged in a building construction project, with payments under the structured arrangement mentioned above admittedly being made by the concerned parties until 2011, after which payments stopped being made by them. The defence thus raised appears to us to be in the realm of being ‘plausible but improbable’. This being the case, the plaintiff needs to be protected. In our opinion, the defendant will be granted leave to defend the suit only if it deposits in the Bombay High Court the principal sum of ?418 crores invested by FMO, or gives security for the said amount of ₹ 418 crores, to the satisfaction of the Prothonotary and Senior Master, Bombay High Court within a period of three months from today. The appeal is accordingly allowed, and the judgment of the Bombay High Court is set aside.
-
2016 (11) TMI 1506 - SUPREME COURT
Offence under Sections 364, 364A/34 IPC r/w Sections 25/27/54/59 of the Arms Act - victim of kidnapping - realisation of ransom - Held that: - There is as such no mutually mutative inconsistency in the three renditions of his, so as to render the prosecution case untrustworthy and discardable on all counts. True, it is that the victim in his statements under Sections 161 and 164 Cr.P.C. did not specifically name Harpal Singh @ Chhota, while naming the other abductors who were the occupants as well of the Honda City car in the dickey of which he was abducted, he did identify and involve this appellant/accused during his testimony at the trial. Not only, in our comprehension, it is likely that in his bewildered and perplexed state of mind at the relevant point of time, he might have omitted to name Harpal Singh @ Chhota, in the face of the other overwhelming evidence and materials on record, nothing much turns thereon in favour of the defence.
The evidence of the victim (PW1) as a whole, in our estimate, is truthful, having regard to the details provided with accompanying clarity and conviction. His elaborate testimony not only has projected the stage-wise developments following his abduction till his release, the same has remained unshaken substantially even by his cross- examination. This witness not only had the opportunity of seeing his abductors but also had heard their exchanges by referring to their nick names. He was in their company and under their surveillance for almost two days in course whereof they not only interacted with him but also had closely followed his conversion with his father on more than one occasion on the aspect of ransom - Apart from the fact that there is nothing convincing on record to even infer any false implication of the accused persons, we are of the unhesitant opinion that the mere omission on the part of the victim to mention at the first instance the name of appellant Harpal Singh @ Chhota, having regard to the charge of conspiracy and the concerted steps, to actualise the same is of no fatal bearing on the prosecution case, more particularly he having named/identified him at the trial as one of the perpetrators of the offence. In this perspective, the omission on the part of the investigating agency to hold the TIP is not fatal, in the facts and circumstances of the case.
The above purported deficiencies do not at all detract from the veracity of the prosecution case.
The prosecution has been able to prove the charges levelled against the appellants. Both the courts below have analysed the evidence in the correct perspectives and in the face of the conclusions recorded on the different aspects of the imputations levelled against them, we are of the opinion that no interference is called for with the impugned judgment of conviction and sentence recorded against them.
Appeal dismissed - decided against appellant.
-
2016 (11) TMI 1505 - PATNA HIGH COURT
Offence punishable under Sections 20(b) & (c) of the N.D.P.S. Act - Smuggling - charas - Held that: - So far facts of the present case is concerned, it is evident that search and seizure as alleged happens to be from public place, being Platform of Hajipur Railway Station, and on account thereof, there would be application of Section 43 of the Act.
Section 57 of the N.D.P.S. Act - Held that: - From the written report, it is evident that the informant along with Inspector, RPF, Akhilesh Singh (PW-2) led the raiding team, on account thereof, an intimation with regard to apprehension of culprits along with Charas would have been given immediately to superior officer by PW-2, which provision has not been satisfied. Thus from the consistent evidence of PW-2 himself along with informant PW-3, it is evident that they utterly failed to inform superior officer within 48 hours as prescribed under Section 57 of the N.D.P.S. Act.
PW-2 as well as PW-3 failed to discharge their due duty in complying with the directions issued under Circular No. 1/88, and on account thereof, the narration of recovery of Charas from a bag possessed by appellant Pratibha Devi become duly afflicted.
On account of non-compliance of the mandatory provisions of law, the prosecution case is found adequately dented. As a result of which, judgment of conviction and sentence dated 11.6.2014 and 16.6.2014, passed in Sonepur (Hajipur) Rail Police Station Case No. 1 of 2010/GR Case No. 11 of 2010, by Sri Brajendra Kumar Tewari, Special Judge, N.D.P.S. Act, Vaishali at Hajipur) would not survive.
Appeal allowed.
-
2016 (11) TMI 1461 - SUPREME COURT
Contempt Petition - invalidating the registration - Held that:- In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the Order of 08.05.2014 but as found hereinabove, the transferee and its Directors/servants have not violated the Order of 08.05.2014. The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the Order of 08.05.2014. In para 38 of the judgment of this Court dated 13.11.2014, this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, no further orders are called for invalidating the registration dated 02.07.2014. Further, according to the record the transferee had parted with full consideration way back on 04.04.2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 02.07.2014.
We thus find the Company and its Directors/servants namely alleged Contemnor Nos.1, 4, 5, 6, 7 and 8 guilty of having violated the Order of 08.05.2014. In our view, ends of justice would be met if fine is imposed on the Contemnors. We impose fine of ₹ 2,000/- on the Company. Further, fine of ₹ 2,000/- each is imposed on Contemnor Nos.4, 5, 6, 7 and 8. Fine shall be deposited with the Registry of this Court within four weeks from today. In case of failure by Contemnor Nos.4, 5, 6, 7 and 8 to deposit the amount of fine within the time stipulated, they shall undergo sentence of simple imprisonment for one month.
With these observations, we close Contempt Petition
-
2016 (11) TMI 1444 - KARNATAKA HIGH COURT
Winding up proceedings - commercially insolvent situation - Held that:- The alleged defences of pendency of civil suit filed by holding company against the manufacturers but not against petitioner-Aerotron Ltd., locus standi of petitioner company to file this winding up petition, there being chance of revival of the business etc., are all, moonshine and sham defences raised without any material basis for them. The respondent-company is commercially insolvent and is unable to pay its huge debts and there appears to be no useful purpose to keep this company out of the process of winding up or to keep these winding up petitions pending unnecessarily waiting for some magic to happen for a turnaround of this company, which has been left to fend for itself even by its own holding company, even though UBHL facing similar winding up petitions against itself filed allegedly for not discharging its own guarantee obligations for discharging the debts of its own subsidiary-the Respondent company, and UBHL is hotly contesting winding up petitions filed against itself. This is nothing but self serving suicidal contradiction of these two companies.
The failure of the respondent- company even to make any alternative arrangement to argue and oppose the present case and other such petitions on behalf of the respondent-company against the petitioning creditors also shows that the Company is not interested in seriously opposing these winding up petitions against it. The objections raised in the statement of objection though not pressed again were considered but are found to be unsustainable and flimsy. There is no bona fide dispute against the admitted liability of the respondent-company and no substantial defence has been put-forth by it to show that it is not commercially insolvent.
Therefore, this Court, considers it just and proper to wind up the respondent-company for failure to pay the admitted liability and accordingly, the said respondent, Company-Kingfisher Airlines Limited deserves to be wound-up. Therefore, this Court is of the considered opinion that respondent-company, KFA Ltd., deserves to be wound up under the provisions of 433 (e) and (f) read with 439 of the Companies Act, 1956. Accordingly, the respondent-company, Kingfisher Airlines Limited having its registered office at U.B. Tower, Level-12, U.B. City, No. 24, Vittal Malya Road, Bangalore-560 001, is ordered to be wound up.
This winding up order be published in 'The Hindu' and 'Udayavani' having circulation in Karnataka in terms of Rule 114 of Companies (Court) Rules, 1959, read with relevant provisions and notice of this order may also be sent to Official Liquidator, Regional Director and the Registrar of Companies, Karnataka, the respondent company itself and the petitioner company.
........
|
