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Indian Laws - Case Laws
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2018 (12) TMI 1992 - BOMBAY HIGH COURT
Initiation of an enquiry - whether this Court can in its testamentary and intestate jurisdiction on a report of a administrator order an inquiry as sought? - Siphoning of funds from the estate of the deceased - HELD THAT:- The scope of Section 247 of the Succession Act empowers the Court to appoint an administrator with rights and powers of general administration excluding the right to distribute the estate. The administrator in question shall be subject to the immediate control of the Court and shall act under the directions of the Court. Needless to mention, administration as contemplated in Section is pendente lite. There is now no doubt that in the facts of the present case the appointment of the administrator was justified inasmuch as it is now final, with all challenges to his appointment having been repelled - This Court in the case of Rupali Mehta v/s Tina Narinder Sain Mehta [2006 (8) TMI 698 - BOMBAY HIGH COURT] dealt with the scope of Section 269 observing that Section confers special powers of the Court to interfere with the protection of property till probate is granted provides the deceased was not a Hindu, Mahomedam, Buddhist, Sikh, Jaina or an Indian christian. Ione following the excluded persons.
In the present case the administrator has been appointed and we are concerned with an application seeking ordering an investigation pursuant to the appointment of the administrator. In effect, it is an application to assist or further empower the administrator. Post the appointment of an administrator, the question to be considered is whether the Court is required to by judicial orders to empower the administrator to adopt appropriate proceedings - It is not as if the remedy of the suit is ousted by the application or vice versa. If the remedy of the suit was not ousted one of the aspects to be considered is whether there is justification in the instant case for ordering an enquiry or investigation. In the case at hand, there are no doubt that the defendant/notices have been non-cooperative and such behaviour, despite appointment of the Administrator is causing material prejudice to the estate and the administration of justice.
Under section 340(3)(a) where the Court making the complaint is a High Court, an officer of that court may be appointed to make that complaint. Since the High Court is exercising its testamentary jurisdiction, it is therefore permissible for an officer of High Court registry to make that complaint. The object and scope of section 340 is to institute an enquiry and ascertain whether any offence affecting administration of justice has been committed in relation to any document produced and given as evidence in Court. Section 340 of the Code has been held to be applicable to all proceedings in all Courts in criminal cases or civil cases irrespective of the fact that whether the matter in court is one involving an offence mentioned in Section 195 - In the present case, the parties involved, not having faithfully disclosed the extent of their involvement and have undoubtedly held back in making a full and proper disclosure and have been engaged in deceitful conduct.
The question that arises is whether the Administrator should stand by in anticipation of compliance by the defendant/notices. The conduct of the defendant that of the trustees and all those associated with the Trust and those inter-meddling with the estate leaves much to be desired and that the disclosures are neither complete nor entirely truthful. Attempts are made to frustrate the exercise undertaken by the Administrator and the attitude of the defendants and the respondents is obstructive - The conduct of defendant no. 1 is undoubtedly obstructive of the administration of justice and the earlier affairs under administration are probed, the more beneficial it will be for the estate. The Court must also ensure that the Administrator is provided with all necessary assistance to complete the task in hand. Given the non co-operative, obstructive and misleading conduct demonstrated over the past few years it is time to ensure that the protection of the estate is complete in all respects both by securing the estate as presently stands and by recovery of all that has been taken away from it to meet the ends of justice and to ensure proper administration of justice.
An independent investigation is required to be carried out as to the scope of the investigation, after the complaint contemplated in this order is filed, it would be for the investigating agency to seek appropriate directions from this court time to time should the need so arise. It is necessary to ensure that the enquiry is conducted in a focused and purposive manner. The administrator will therefore be required to provide all necessary support - The resistance to an enquiry does not appear justified in view of the first defendants contention that the administrator may if he so desires file complaints.
The Administrator appointed by this Court shall draw up a complaint to be filed and provide the draft complaint to the Prothonotary and Senior Master within a period of four weeks from today - Upon the draft complaint being lodged and subject to scrutiny of its contents the Prothonotary and Senior Master shall forward the complaint on behalf of the Administrator to the Commissioner of Police, Mumbai who shall nominate a suitable team of officers to initiate an investigation into the complaint and the affairs of deceased Purvez Burjor Dalal. The progress of the investigation after it commences shall be reported to the Prothonotary and Senior Master on a fortnightly basis - This Report shall be listed for further hearing after eight weeks.
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2018 (12) TMI 1987 - ALLAHABAD HIGH COURT
Maintainability of petition on behalf of the auction purchaser seeking relief of refund of the sale consideration deposited by the auction purchaser is maintainable before the High Court under Article 226 of the Constitution of India, or he has remedy of appeal under Section 17 of the SARFAESI Act - imposing a condition “as is where is” "as is what is” the bank is not under obligation to hand over vacant physical possession of the secured assets to the auction purchaser - requirement to hand over the physical possession of the secured asset to the auction purchaser, who has fulfilled all the conditions and paid the entire sale consideration as per the terms of the bid.
HELD THAT:- The entire gamut of remedies provided under Section 17 of the SARFAESI Act is to oversee that the statutory provisions of Section 13(4) read with Rule 8 and 9 of the Rules, 2002 are adhered to, and the Debt Recovery Tribunal would immediately step in, whenever it finds any infraction by the secured creditor.
There is no dispute between the auction-purchaser and the Bank with regard to any of the measures under section 13 (4) of the SARFAESI Act read with rule 8 and 9 of the Rules, 2002. Here, the petitioner, who is a auctionpurchaser has deposited the entire amount of bid and the Bank has issued a sale certificate dated 15/07/2017, wherein it has been recorded that “the undersigned acknowledges the receipt of the sale price of Rs. 60 lakhs in full and handed over the delivery in possession of the schedule property”. The said sale certificate issued under rule 9(6) has been signed by Authorised Officer, Allahabad bank. The Bank has stated that though the sale certificate has not been received by the petitioner, but the Bank is ready to hand over the sale certificate to the petitioner.
In view of the the judgment of the Hon’ble apex court in the case of Agarwal Tracom Pvt Ltd vs Punjab National Bank and Others [2017 (11) TMI 1523 - SUPREME COURT] is clearly distinguishable on facts, and in the peculiar set of facts and circumstances of this case, the petitioner does not have any efficacious alternative remedy under the SARFAESI Act.
It may be clarified here that the District Magistrate has not passed any order in excise of powers conferred upon him under Section 14 of the SARFAESI Act, despite 59 dates having been fixed in this regard, and strong disapproval is recorded in the manner in which the District Magistrate has not taken any action on the application of the bank - the inaction on part of the District Magistrates will have a detrimental effect in securing the possession of the properties and therefore effective mechanism must be taken by respondent no.1 in this regard.
Whether the clause contained in the advertisement for e-auction, which provides that the property was being sold on “as is where is Basis, as it is where it is Basis and whatever there is”, which according to the Bank, dis-entitles the petitioner from seeking any claim against the respondent bank? - HELD THAT:- The third-party, who comes forward to purchase the secured asset must have the confidence that he would get the property at the earliest and in case, considerable long time is consumed in transferring the property not only it would defeat the purpose of the Act but would also cause colossal loss and injury to a auctionpurchaser, like the petitioner - by merely inserting a clause “as is where is” and "as is what is” the responsibility of the Bank does not get diluted nor it can in any manner assist the bank in denying physical possession to the auction purchaser.
It was a duty of the respondent Bank to deliver vacant possession of the secured asset to the petitioner within a reasonable time. Having failed to deliver possession, the petitioner has rightly exercised his option to get refund of the bid amount deposited with the Bank along with interest and damages. As noticed above, in the Recovery Management Policy 2017– 2018 there is a provision of refunding the amount of EMD/sale proceeds, if the Bank is not able to deliver physical possession of the property beyond six months from the date of auction - the reasonable period for giving physical possession of the auction property to the auction purchaser would be six months, keeping in view that under section 13(4) the District Magistrate is under a statutory obligation to decide the application of the Bank within a maximum period of 60 days, and even taking into account certain delay in moving the application and other administrative delays, the possession of the property ought to have been handed over to the auction purchaser at least within a period of six months from the date of the auction.
This writ petition is allowed with the direction to the respondent bank to refund Rs. 60 lakhs, which was deposited by the petitioner being the auction-purchaser of the aforesaid property, to the petitioner within a period of one month, along with interest @ 9 percent.
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2018 (12) TMI 1986 - MADRAS HIGH COURT
Dishonour of Cheque - principles of vicarious liability - whether necessary allegations have been made in the complaint against the petitioners by satisfying the requirements under Section 141 of the Negotiable Instruments Act? - HELD THAT:- From the judgments in NATIONAL SMALL INDUSTRIES CORPN. LTD. VERSUS HARMEET SINGH PAINTAL [2010 (2) TMI 590 - SUPREME COURT], POOJA RAVINDER DEVIDASANI VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (12) TMI 1070 - SUPREME COURT] and ASHOKE MAL BAFNA VERSUS M/S UPPER INDIA STEEL MFG. & ENGG. CO. LTD. [2017 (3) TMI 907 - SUPREME COURT], it is very clear that it is not enough if the words used under Section 141 of the Negotiable Instruments Act, is merely extracted. In order to make a Director of a Company is liable for the offence committed by the Company under Section 141 of the Negotiable Instruments Act, there must be a specific averment against the Director to show as to how and in what manner the Director was responsible for the conduct of the business of the Company. This composition has been reiterated by the Hon'ble Supreme Court consistently.
This Court is not in agreement with the submission made by the learned counsel for the respondent. If it is enough to mechanically repeat the requirement under Section 141 [1] of the Negotiable Instruments Act, any number of Directors can be made as an accused in a complaint filed under Section 138 of the Negotiable Instruments Act. This will lead to a situation where the Directors who have nothing to do with the day-to-day affairs of the Company, Nominee Directors etc., being made to face a criminal complaint just because there is a repetition of the words found under Section 141 [1] of the Negotiable Instruments Act. This may lead to an abuse of process of Court and any person who is shown as a Director will be made to undergo the ordeal of trial.
The allegations made in the complaint does not satisfy the requirements of Section 141 of the Negotiable Instruments Act, and the requirements reiterated by the Hon'ble Supreme Court, insofar as these petitioners are concerned, and therefore this Court has to necessarily interfere with the proceedings in exercise of its jurisdiction under Section 482 of Cr.P.C. - Petition allowed.
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2018 (12) TMI 1982 - TELANGANA HIGH COURT
Default in repayment of Term Loan - account classified as NPA - Failure of auction three times - requirement to give 30 days time from the date of issue of notice under Rule 8(6) before the issue of the sale notice under Rule 9(1) of SARFAESI Rules - property brought to sale was admittedly an agricultural land and hence Section 31(i) of the Act was attracted or not - fixation of reserve price violating the law laid down by the Supreme Court in J. RAJIV SUBRAMANIYAN & ANR. VERSUS M/S. PANDIYAS & ORS [2014 (6) TMI 17 - SUPREME COURT].
Non-availability of a gap of 30 days between the date of issue of notice under Rule 8(6) and the sale notice under Rule 9(1) - HELD THAT:- In any case, the first argument of the learned counsel for the petitioner is about the failure of the Bank to issue a notice under Rule 9(1). If the petitioner was serious about this contention, he should have come up with a writ petition or gone before the Debts Recovery Tribunal by way of appeal challenging the first notice of sale dated 10-7-2017. The petitioner did not challenge the first notice of sale. He did not challenge even the subsequent 6 notices of sale. He came to Court only after the sale was effected on the 7th occasion. Therefore, a person who took advantage of the failure of 6 auctions, cannot come to Court after the completion of a successful auction on the 7th occasion, complaining that the first auction was defective. The impugned sale did not take place pursuant to the first auction notice, but took place pursuant to the 7th notice. Therefore, the defect, even if any, in the first notice, got wiped out. Hence, the first contention deserves to be rejected.
Whether the mortgaged property is an agricultural land and that therefore Section 31(i) of the Securitisation Act, 2002, prohibits the invocation of the provisions of the Act, for the enforcement of security interest in an agricultural land? - HELD THAT:- A person who made a representation of a crucial fact in the form of a Sworn Affidavit and thereby induced a Bank to sanction a term loan, cannot go back on the representation made by him in his Affidavit. If the petitioners had refused to swear to an Affidavit in April, 2011, the Bank would not have sanctioned the facilities at all. After having held out a particular form of representation to the Bank and after having derived a benefit on account of such representation, the petitioner cannot now turn around and contend that what was made out by him/her was a misrepresentation.
A vain attempt was made by the learned counsel for the petitioner to contend that the petitioner had to swear to such an Affidavit in April, 2011, because they were in need of money. But the learned counsel for the petitioner does not want to label the representation made by the petitioners as a misrepresentation, as the same would expose them to other consequences. If the petitioners had made a false representation in order to induce the Bank to sanction limits to them, they cannot go back on those representations, with a view to deprive the Bank of their dues. No amount of Case Law would go to the rescue of such a person. Therefore, the second contention is also liable to be rejected.
Market Value - contention of the petitioner is that the valuation obtained way back on 22-02-2011 was Rs. 462.50 lakhs and that therefore the valuation obtained before the last auction sale was abysmally low - HELD THAT:- It is true that the securing of the best possible price by the secured creditor, would be beneficial to both parties. But ideal situations do not arise in auction sales. The Bank could not get a buyer for the property in 6 auction sales. It was only in the 7th auction that the Bank succeeded. Therefore, the petitioner cannot make an issue out of the valuation report. Therefore, the third contention is also liable to be rejected.
All the three contentions raised by the learned counsel for the petitioner are liable to be rejected. The Debts Recovery Tribunal has applied its mind to all the three contentions and chose to reject them with its own reasons - Petition dismissed.
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2018 (12) TMI 1981 - RAJASTHAN HIGH COURT
Adjustment of petitioner against the post of Teacher Grade – III (Level-2) and be paid his due salary from August, 2018 - HELD THAT:- In the overall circumstances of the case, wherein the petitioner has, relying on various circulars issued by the respondents themselves and orders, wherein the said circulars/instructions have been complied with, whereas the petitioner has been dealt with differently vide order dated 27.11.2018 (Annex.-9) and representations made by the petitioner are pending consideration with the respondents and so far as order pursuant to the impugned order dated 27.11.2018, has not been issued, the respondents i.e. the Joint Director, School Education, Udaipur Division, Udaipur is directed to look into the various applicable circulars and orders passed in this regard qua other Teachers and treat the petitioner similarly with those Teachers and pass appropriate order.
It would be required of the Joint Director, School Education, Udaipur Division, Udaipur to pass a speaking order dealing with the grievance of the petitioner.
Petition disposed off.
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2018 (12) TMI 1980 - CENTRAL ADMINISTRATIVE TRIBUNAL, NEW DELHI
Seeking reinstatement into service on expiry of 90 days from the date of initial suspension - smuggling of red sanders - whether the suspension of an employee can be extended beyond 90 days? - HELD THAT:- It was held in Dr. Rishi Anand's case [2017 (9) TMI 2005 - DELHI HIGH COURT] that the very fact the observations of the Supreme Court that the suspension cannot be continued beyond 90 days in case no charge sheet is filed within that time, were not applied in that case; would lead to the conclusion that the said principle cannot be ascribed the status of ratio decidendi.
Further, there would not have been any necessity for us to undertake any discussion on this aspect had Rule 10(7) of the CCS (CCA) Rules, 1965 was interpreted or any portion of it was struck down, denuding the Government of the power to continue the suspension beyond 90 days if no charge sheet is filed.
The authority of a precedent and its binding nature is certainly high, when the issue decided therein is not covered by any provision of law or by an earlier precedent. The Courts subordinate to the one which authored the precedent, have to religiously follow it, till any legislation is made to the contrary, in accordance with law. If the issue is covered by a provision of law, the precedent would retain its strength, if the provision is taken into account and is interpreted. The judgment then becomes a guiding tool for the interpretation or understanding the provision of law.
The endeavor of Hon'ble Supreme Court, for decades together was to ensure transparency in Government services and public life, and even new statutory agencies, like CVC, have been brought into existence in compliance of the directions of the Supreme Court. Radical changes were brought as regards the functioning of CBI is to ensure that no laxity is exhibited in the context of dealing with the cases where allegations of corruption or misconduct of serious nature exist. The applicant is facing serious allegations. Whatever be the reasons for default in issuing charge sheet, that should not become an advantage for the applicant to get reinstated into service.
The respondents shall make endeavor to file the charge memo within a period of three months from the date of receipt of copy of this order and when the Suspension Review Committee meets next, it shall specifically address the question as to whether it is desirable at all to continue the suspension, and whether the interests of the State and of the applicant would be served in case he is transferred to any other place by reinstating him - appeal dismissed.
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2018 (12) TMI 1970 - BOMBAY HIGH COURT
Recovery of outstanding dues alongwith interest - demand of interest after 120 days - Order XXXVII Rule 2 of the Code of Civil Procedure 1908 - HELD THAT:- It is not disputed even in the Affidavit in Reply to the Summons for Judgment that the parties did have, and indeed continue to have, business dealings. The 1st Defendant is a partnership firm that does business in offset printing. Defendants Nos. 2 and 3 are partners of the 1st Defendant. The Plaintif periodically supplied diferent types of papers, cards and other material to the 1st Defendant. The business and commercial relationship was of considerable longevity and continued for over two decades. The 1st Defendant purchased art paper, bond paper, card paper and so on from the Plaintif. Some of these requests were oral or telephonic but in this case that is not an issue that would arise because the Defendants do not dispute the existence of this business relationship or the supplies made to the 1st Defendant - Payments from the 1st Defendant were not on a back-to-back basis with the invoices. From September 2016 to February 2017, the Plaintif’s lawyers demanded payment from the Defendants. The Plaintif received about Rs.9 lakhs in that period (the correspondence inadvertently mentioned a slightly lower figure of Rs.7.5 lakhs but that furnishes no defence). The aggregate amount, according to the Plaintif, due to it on 3rd February 2017 was Rs.1,78,08,676/-. The Plaintif sent the Defendants a legal notice demanding payment and, in default, threatened recovery proceedings.
The Writ of Summons having been served, the Defendants entered appearance. The Plaintif then filed present Summons for Judgment to which there is an Affidavit in Reply and an Affidavit in Rejoinder. The Affidavit in Reply says very many things, non of them persuasive. The oral submissions have been advisedly more subtle, and the argument before me today is that while the business relationship is not in dispute the Defendants do dispute that all 140 invoices are unpaid - What the Defendants are unable to show is that any payments were made in respect of any particular invoice. The law in this regard is well settled. If a party makes payment to his creditor against a specified bill and that payment is accepted it can only be applied towards satisfaction of the claim under that bill. If no particular invoice is specified, the creditor is entitled to apply the payment to the earliest unpaid bill. This hardly admits of any dispute, especially in the commercial division of a High Court in the commercial capital of the country and I do not propose to spend any more time in addressing this.
The Plaintiff has claimed interest after 120 days - HELD THAT:- The Defendants were entitled to at least 450 days’ credit and, having regard to their relationship, over 800 days’ credit. This is why I said the submission was fantastic. I do not believe that there is a single commercial entity in this city who (being of sound mind) would aford anybody 450 days’ credit let alone 800 days’ (over two years) credit. If no credit period is specified, a reasonable period will be taken. That may be 30 days, 60 days or, as in this case, 120 days. In no case is 450 days or 800 days a commercially reasonable period. The argument is actually against the Defendants because if the invoice does not specify a credit period, then it clearly means that the invoice is payable on presentation, and then there is no credit period whatsoever. There is no warrant in law to demand any minimum credit period absent a specific contract to the contrary. The result is that the Plaintif has possibly made a lower claim in interest by granting 120 days rather than computing interest from the date of invoice. The Defendants cannot demand that that claim be reduced even further by insisting on an interest-free credit period stretching into years on end for each invoice.
As an exceptional case an order of conditional deposit today is considered for one reason only and that is because the parties have had a business relationship stretching back several decades and will give the Defendants, therefore, an opportunity to secure the Plaintif’s claim as a condition precedent to being able to defend the suit. In default, and on obtaining a non-deposit certificate, the Plaintifs would be entitled to apply for an ex parte decree.
The Defendants will deposit the amount of Rs.2,64,19,454.56 with the Prothonotary and Senior Master on or before 18th January 2019. Upon that deposit being made, the Defendants will be entitled to leave to defend and will then file their Written Statements on or before 22nd February 2019 - The suit will be listed for framing issues thereafter on 1st March 2019.
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2018 (12) TMI 1969 - GUJARAT HIGH COURT
Recruitment to the posts of Commercial Tax Officer and Account Officer, Class-II - ineligibility on the ground that S.S.C.E. credit certificate was not produced - HELD THAT:- The arena of facts and the rival case, leads to suggest that the case of the respondents that S.S.C.E. certificate was not sent by the petitioner, was beset with a serious dispute. It was the specific case of the petitioner that through R.P.A.D. post, while sending the application, the S.S.C.E. credit certificate was sent along with the other documents. Respondent No.2 took a stance that the same was not received and treated the petitioner to be ineligible for the purpose of interview, after permitting the petitioner to participate in the process by taking main written examination. Even on demurer, what turns out is the alleged non-sending of S.S.C.E. certificate along with the application. However, the existence of S.S.C.E. certificate at the material time, that is sending of the application and other documents, and the availability of such certificate with the petitioner was not in dispute.
It leaves no reason for doubt that the petitioner did have the S.S.C.E. Certificate indicating the age proof and on the basis of such availability, he made the application. The application form was sent online and non-producing the Certificate along with the on-line application was a sheer omission. The petitioner did produce the Certificate which was already in existence at the time of written examination. The petitioner was permitted in the written examination - Law conceives a clear differentiation between illegality and irregularity. This nice distinction brings home the case of the petitioner. An illegality is something which amounts to substantial failure in compliance of requirement. It denotes such breach of rule or requirement which alters the position of a party in terms of his right or obligation. Illegality denotes a complete defect in the jurisdiction or proceedings. Illegality is properly predictable in its radical defects.
A Certificate already in existence and the factum of birth date on the basis of such Certificate being indisputable, when bona fide omitted to send along with the on-line application by a candidate whose such application was accepted and who has subsequently participated in the stages of selection process, could not be allowed to be prejudiced on the ground of inadvertent non-sending of the Certificate, produced later before the rights and obligations underwent change, more particularly when no other adverse or accentuating aspects override. The defect incurred on part of the petitioner-candidate could be categorised as procedural irregularity so as not to disentitle him in participating in the further process of selection, and not rendering him as ineligible if he is otherwise eligible to be appointed.
The action and decision of respondent No.2 – Gujarat Public Service Commission in treating the petitioner – Rajapara Savan Jagdishbhai as ineligible in the result dated 20th November, 2017 is set aside - Petition allowed.
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2018 (12) TMI 1966 - DELHI HIGH COURT
Robbery - white colour Hundai Verna Car - cash - corroboration of facts - It is contended that Appellant has financial stringency - HELD THAT:- Court has to consider the circumstances of the case, nature of offence and character of the offender while exercising the power which is discretionary. Powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Court even at appellate or Revisional stage.
Though the Appellant has been convicted under Sections 411 and 482 of the IPC but in the facts and circumstances of the present case and after considering the nature of the offence, the character of the offender, the report of the Probationary Officer, the Appellant herein leading a disciplined life on the reformed path and the Appellant having a fixed place of abode, this is a fit case for extending the benefit of Section 4 of Probation of Offenders Act to the Appellant.
While confirming the conviction of appellant under Section 411 and 482 of IPC, it is directed that he be released on probation on entering into a bond, within a period of two weeks from today, in the sum of Rs. 10,000/- with one surety of like amount, before the concerned trial Court, for keeping peace and good behaviour for a period of one year. In case Appellant does not maintain good conduct during the period of probation then he shall be liable to undergo the substantive sentence as awarded by the Trial Court - Appeal disposed off.
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2018 (12) TMI 1959 - DELHI HIGH COURT
Seeking condonation of delay of 2590 days in filing the application seeking restoration - only ground which has been urged for seeking condonation of delay is that the counsel appearing in the matter was elevated as a Judge of this Court and the department was not aware about the peculiar circumstances - HELD THAT:- This averment is not bonafide as on account of the fact that the appellant cannot be compared to an illiterate litigant as cases of the appellant are looked after by the law department with law officers who monitors the cases.
The LPA was filed in the year 2003. Thereafter, it was listed from time to time. Thus, in view of the settled principle of law, it is not satisfying with the explanation rendered by the applicant either in terms of seeking restoration of the appeal or condonation in filing the application for restoration.
There are no ground to allow the present applications. Both the applications are thus dismissed.
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2018 (12) TMI 1956 - DELHI HIGH COURT
Condonation of delay in filing written statements - right of the defendants to file the written statement was closed as 120 days prescribed in CPC for filing the written statement have expired - re-filing tentamounts to fresh filing or not - HELD THAT:- It is admitted fact that the defendants have filed the written statement on 07.05.2018 after being served on 08.01.2018.
It is settled legal position that delay in re-filing has to be considered on a different footing. Reference in this context may be had to the judgment of the Division Bench of this court in S.R. Kulkarni vs. Birla VXL Ltd. [1998 (5) TMI 421 - DELHI HIGH COURT] has held that When there is negligence or causal approach in a matter like this in refiling of an application, though the court may not be powerless to reject an application seeking condensation and may decline to condone the delay but at the same time, passing of any other appropriate order including imposition of cost can be considered by the court to compensate the other party from delay which may occur on account of refiling of the application.
The written statement is taken on record if re-filed within one week from today subject to costs of Rs.15,000/- - Appeal allowed.
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2018 (12) TMI 1955 - MADRAS HIGH COURT
Dishonor of Cheque - insufficient funds - Section 138 of NI Act - maintainability of final report on the same cause of action - offence under Sections 120(b), 406, 420 and Section 34 of IPC - HELD THAT:- The defacto-complainant is agitating the same issue in two forums. The allegations as found in the final report, will only constitute a Prima facie offence under Section 138 of the Negotiable Instruments Act. The defacto-complainant is already prosecuting the complaint before the concerned Court and the same is pending. The present final report on the same cause of action is not maintainable. The continuation of the proceedings before the Court below will result in abuse of process of Court.
This Criminal Original Petition is allowed.
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2018 (12) TMI 1943 - SUPREME COURT
Cancellation of license of Respondent No. 1 in relation to the shop in question - whether the High Court was right in allowing the Respondent No. 1's writ petition? - HELD THAT:- The High Court having held that the order of the Commissioner was not legally sustainable because it was an unreasoned order, it had two options to follow. One, to decide the controversy on merits in the writ petition itself and the other to remand the case to the Commissioner for deciding the appeals afresh on merits in accordance with law by passing reasoned order after dealing with all the contentions raised by the parties in support of their case.
As a consequence, the merits of the case could not be examined either by the Commissioner in appeal properly or the High Court in writ petition - the parties were entitled for a decision of their case on merits by the Appellate Court (Commissioner) and then by the High Court in its writ jurisdiction. In this case, neither the Commissioner could record any finding on the merits and nor the High Court.
The case is remanded to the Commissioner, Lucknow Division, Lucknow (UP) for deciding the appeals afresh on merits - Appeal allowed in part by way of remand.
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2018 (12) TMI 1941 - SUPREME COURT
Validity of criminal proceedings - Appellant had withdrawn an earlier complaint without assigning reasons - transactions of commercial in nature - the ingredients of an offence were absent - remedy of the Appellant lay in filing a civil suit or not - violation of principles of natural justice - HELD THAT:- There is no provision in the Code of Criminal Procedure or any other statute which debars a complainant from making a second complaint on the same allegations, when the first complaint did not lead to conviction, acquittal or discharge.
As held by this Court in JATINDER SINGH & ORS. VERSUS RANJIT KAUR [2001 (1) TMI 961 - SUPREME COURT], it is only when a complaint is dismissed on merits after an inquiry, that a second complaint cannot be made on the same facts. Maybe, as contended by the Respondents, the first complaint was withdrawn without assigning any reason. However, that in itself is no ground to quash a second complaint.
In PRAMATHA NATH TALUKDAR VERSUS SAROJ RANJAN SARKAR [1961 (11) TMI 63 - SUPREME COURT], this Court dealt with the question whether the second complaint by the Respondent should have been entertained when the previous complaint had been withdrawn. The application Under Section 482 Code of Criminal Procedure was allowed and the complaint dismissed by the majority Judges observing that an order of dismissal Under Section 203 Code of Criminal Procedure was no bar to the entertainment of second complaint on the same facts, but it could be entertained only in exceptional circumstances, for example, where the previous order was passed on an incomplete record or a misunderstanding of the nature of the complaint or the order passed was manifestly absurd, unjust or foolish or where there were new facts, which could not, with reasonable diligence, have been brought on record in previous proceedings.
Exercise of the inherent power of the High Court Under Section 482 of the Code of Criminal Procedure would depend on the facts and circumstances of each case. It is neither proper nor permissible for the Court to lay down any straitjacket formula for regulating the inherent power of the High Court Under Section 482 of the Code of Criminal Procedure - Power Under Section 482 Code of Criminal Procedure might be exercised to prevent abuse of the process of law, but only when, the allegations, even if true, would not constitute an offence and/or were frivolous and vexatious on their face.
Mentioning of reasons for withdrawal of an earlier complaint is also not a condition precedent for maintaining a second complaint. In our considered opinion, the High Court clearly erred in law in dismissing the complaint, which certainly disclosed an offence prima facie. At the cost of repetition, it is reiterated that it was not for the High Court to enter the factual arena and adjudicate the merits of the allegations.
The impugned order of the High Court quashing the complaint is set aside - Appeal allowed.
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2018 (12) TMI 1940 - SUPREME COURT
Effect of consumer disputes - non-arbitrable or not - dismissal of application filed Under Section 8 of the Arbitration and Conciliation Act, 1996 by the appellant - application for extension of time for filing the written statement - NCDRC committed error in rejecting the application of the Appellant filed Under Section 8 of 1996, Act praying for reference to the arbitrator as per Arbitration Clause in the builders agreement or not - application filed Under Section 8 by the Appellant could have been rejected in view of substantial changes brought in the statutory scheme by inserting the words "notwithstanding any judgment, decree or order of the Supreme Court or any Court" in Sub-section (1) of Section 8 - statutory amendment which completely changed the legal position as was earlier existing prior to the aforesaid amendment - whether insertion of words "notwithstanding any judgment, decree or order of the Supreme Court or any Court" Under Section 8(1) by the (Amendment) Act, 2015 legislature intended to do away with the decision of judgments of Supreme Court laying down that Consumer Protection Act being special remedy can be initiated and continued despite there being any arbitration agreement between the parties?.
HELD THAT:- This Court in the series of judgments considered the provisions of Consumer Protection Act, 1986 as well as Arbitration Act, 1996 and laid down that complaint under Consumer Protection Act being a special remedy, despite there being an arbitration agreement the proceedings before Consumer Forum have to go on and no error committed by Consumer Forum on rejecting the application. There is reason for not interjecting proceedings under Consumer Protection Act on the strength an arbitration agreement by Act, 1996. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. The complaint means any allegation in writing made by a complainant has also been explained in Section 2(c) of the Act. The remedy under the Consumer Protection Act is confined to complaint by consumer as defined under the Act for defect or deficiencies caused by a service provider, the cheap and a quick remedy has been provided to the consumer which is the object and purpose of the Act - Not only the proceedings of Consumer Protection Act, 1986 are special proceedings which were required to be continued under the Act despite an arbitration agreement, there are large number of other fields where an arbitration agreement can neither stop or stultify the proceedings.
The complaints filed under the Consumer Protection Act can also be proceeded with despite there being any arbitration agreement between the parties which have been well settled by the catena of decisions.
Effect and consequences of the above stated position of law consequent to the Arbitration and Conciliation (Amendment) Act, 2015 amending Section 8 - HELD THAT:- This Court has noticed that amendments are expressed to apply notwithstanding any prior judicial precedents, but the scope of amendment Under Section 8(1) was confined to three categories as has been noted in Paragraph No. 29. Amendments Under Section 8, thus, were aimed to minimise the scope of judicial authority to refuse reference to arbitration and only ground on which reference could have been refused was that it prima facie finds that no valid arbitration agreement exists. Notwithstanding any prior judicial precedents referred to Under Section 8(1) relates to those judicial precedents, which explained the discretion and power of judicial authority to examine various aspects while exercising power Under Section 8.
The Legislative intent and object were confined to only above aspects and was not on those aspects, where certain disputes were not required to be referred to arbitration. Can it be said that after amendment Under Section 8(1), the law laid down by this Court in reference to Section 2(3), where large number of categories have been held to be non-arbitrable has been reversed or set at naught. Neither any such Legislature intendment was there nor any such consequence was contemplated that law laid down by this Court in context of Section 2(3) has to be ignored or reversed.
The amendment in Section 8 cannot be given such expansive meaning and intent so as to inundate entire regime of special legislations where such disputes were held to be not arbitrable. Something which legislation never intended cannot be accepted as side wind to override the settled law - this Court held that disputes within the trust, trustees and beneficiaries are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. This Court held that the remedy provided under the Arbitration Act for deciding such disputes is barred by implication. The ratio laid down in the above case is fully applicable with regard to disputes raised in consumer fora.
There are no error has been committed by the NCDRC in rejecting the application filed by the Appellant Under Section 8 - review petitions are dismissed.
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2018 (12) TMI 1935 - SC ORDER
Interpretation of statute - applicability of provisions of the Indian Penal Code - offences also within the purview of the Information Technology Act, 2000 - whether the invocation and application of the provisions of the Indian Penal Code can be sustained in the facts and circumstances of the case when the offences committed by the petitioners are also sought to be brought within the purview of the Information Technology Act, 2000? - it was held by Bombay High Court that The Information Technology Act, 2000 being a special enactment, it requires an able investigation keeping in mind the purpose of the enactment and to nab the new venturing of crimes with the assistance of the Technology. The subject FIR insofar as the investigation into the offences punishable under the Indian Penal Code is set aside.
HELD THAT:- The Special Leave Petitions are dismissed.
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2018 (12) TMI 1933 - BOMBAY HIGH COURT
Jurisdiction - Attachment of land owned by respondent No.1 - power and jurisdiction of respondent Nos.3 and 4 to attach the immovable property of respondent No.1, that is mortgaged with the petitioner bank - non-compliance with the notice issued under Section 13(2) of the SARFAESI Act - non-performing assets - HELD THAT:- In the present case, the petitioner and respondent No.1 are the Cooperative Societies, registered under the Maharashtra Cooperative Societies Act. There is no provision under the Maharashtra Cooperative Societies Act similar to Sections 529 and 529A of the Companies Act.
There cannot be any dispute with the proposition that the welfare legislation will have to be liberally construed and the payment of gratuity would be a part of welfare legislation as has been held by the Apex Court in the case of All India Allahabad Bank Retired Employees Association [2009 (12) TMI 1024 - SUPREME COURT]. In the said case, the question before the Apex Court was whether the retired employees of the appellant Bank therein were entitled for the payment of gratuity under the provisions of Payment of Gratuity Act. In that context, the Apex Court had observed that the said remedial statute will have to be liberally construed.
In the present case, the dispute would be about the priority of claim, whether the claim of the petitioner bank would have a priority over the claim under the Payment of Gratuity Act visavis the provisions of the SARFAESI Act. The Apex Court in the case of UNION OF INDIA VERSUS SICOM LTD. [2008 (12) TMI 53 - SUPREME COURT] has unequivocally held that considering the statutory right of the Financial Corporation under the State Financial Corporations Act and the non obstante clause occurring therein, the Corporation had a preferential claim.
The SARFAESI Act has also been amended and Section 26E is introduced with the non obstante clause giving a priority claim over all other debts - The recovery certificate has been legitimately and validly issued. However, pursuant to the said recovery certificate, the secured assets of respondent No.1 with the petitioner bank cannot be attached under the said recovery certificate and as observed above, after the sale of the assets of respondent No.1 and realisation of the dues of the petitioner, if certain amount remains, then respondent Nos.5 to 62 would be entitled for the same.
The attachment over the secured assets with the petitioner bank i.e. the properties of respondent No.1 bearing Gat Nos.44/1, 44/2 and 44/3 is quashed and set aside. However, the prayer of the petitioner for quashing recovery certificate is rejected - Application disposed off.
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2018 (12) TMI 1929 - SUPREME COURT
Appointment of independent arbitrator - declination to appoint holding that as per the terms of the agreement, arbitrator had already been appointed - in the light of the agreement between the parties in Clause (65) of the general conditions of contract whether the Appellant/contractor can challenge the appointment of the Superintendent Engineer, Arbitration Circle as Arbitrator to resolve the dispute between the parties? - HELD THAT:- The High Court placed reliance upon the judgment in ANTRIX CORP. LTD. VERSUS DEVAS MULTIMEDIA P. LTD. [2013 (5) TMI 402 - SUPREME COURT]and held that when the Superintendent Engineer, Arbitration Circle was appointed as the Arbitrator in terms of the agreement (or arbitration clause), the provisions of Sub-section (6) of Section 11 cannot be invoked again. The High Court further observed that in case, the other party is dissatisfied or aggrieved by the appointment of an arbitrator in terms of the agreement, his remedy would be by way of petition Under Section 13 and thereafter while challenging the award Under Section 34 of the 1996 Act.
In the present case, the Arbitrator has been appointed as per Clause (65) of the agreement and as per the provisions of law. Once, the appointment of an arbitrator is made at the instance of the government, the arbitration agreement could not have been invoked for the second time.
When the parties have specifically agreed for appointment of sole Arbitrator of the person appointed by the Engineer-in-Chief/Chief Engineer, HPPWD, the Appellant was not right in approaching the High Court seeking appointment of an independent Arbitrator - Inspite of extension of time, since the Appellant-contractor had not filed statement of claim, the arbitrator terminated the proceedings Under Section 25(a) of the 1996 Act by proceedings dated 06.08.2014. The Appellant-contractor did not file his statement of claim before the arbitrator since the Appellant had approached the High Court by filing petition Under Section 11(6) of the 1996 Act, probably under the advice that the Appellant can get an independent arbitrator appointed. The Appellant had been writing letters to the arbitrator before the hearing seeking adjournment.
An opportunity is to be afforded to the Appellant to go before the departmental arbitrator (as agreed by the parties in Clause (65) of the general conditions of contract) and the proceedings of the arbitrator dated 06.08.2014 terminating the proceedings is to be set aside. After the Amendment Act, 2015, there cannot be a departmental arbitrator - in this case, the agreement between the parties is dated 19.12.2006 and the relationship between the parties are governed by the general conditions of the contract dated 19.12.2006, the provisions of the Amendment Act, 2015 cannot be invoked.
The proceedings of the arbitrator dated 06.08.2014 terminating the arbitral proceedings is set aside. In terms of Clause (65) of the general conditions of contract, the Chief Engineer, Himachal Pradesh Public Works Department is directed to appoint an arbitrator in terms of Clause (65) of the agreement - the Appellant shall file his claim before the arbitrator so nominated and the arbitrator shall afford sufficient opportunities to both the parties and proceed with the matter in accordance with law.
Appeal disposed off.
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2018 (12) TMI 1919 - MADRAS HIGH COURT
Seeking permission of this Court to withdraw this Writ Petition - HELD THAT:- Recording the submission and the endorsement made by the learned counsel appearing for the petitioner, this Writ Petition is dismissed as withdrawn.
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2018 (12) TMI 1918 - MADRAS HIGH COURT
Seeking permission to withdraw the present writ petition - HELD THAT:- It is the discretion of the petitioner to withdraw the writ petition, permission is granted. The learned counsel for the petitioner has also made an endorsement in the bundle.
The writ petition is dismissed as withdrawn.
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