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Indian Laws - Case Laws
Showing 1 to 20 of 69 Records
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2018 (7) TMI 2345 - SUPREME COURT
Fixation of fees by the University - in compliance with the scale fixed by the Government as well as the Committee on Fixation of Fee or not - scope of Educational Institution - Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 - plea of estoppel - HELD THAT:- The High Court was completely in error in observing that for the application by the provisions of 1992 Act an educational institution must always be specified by the Government by notification. The requirement of specification of notification is only in respect of "any other educational institution or class or classes of educational institutions" and has not to be read with (I) part of definition, which part of the definition is an independent and stand alone provision and does not require any specification by the Government.
Whether University in the present case answers the description in (I) Part of Section 3(b) of 1992 Act? - HELD THAT:- Section 4 shows that under Sub-section (1) the Government is empowered to regulate the tuition fee or any other fees or deposits in the manner prescribed therein. But in relation to imparting of education leading to a degree in medicine or engineering, Sub-section (2-A) has been given an overriding effect by incorporating non-obstante provision. Sub-section (2-A), unlike Sub-section (1), does not require any notification by the Government. If an institution carries on activity of imparting education leading to a degree or diploma as spoken of in Sub-section (2-A) of said Section 4, the fee structure has to be that which is fixed by the Committee. The legislative intent is very clear and no educational institution which comes within the scope of Sub-section (2-A) can receive or collect any fees in excess of the amount fixed by the "Committee on Fixation of Fee".
Whether the University by virtue of Section 4(13) and 20(1)(m) of 2013 Act could charge, collect and receive tuition fee without the intervention of "Committee on Fixation of Fee" as contemplated by Section 4(2-A) of 1992 Act? - HELD THAT:- If a particular modality is prescribed by the Legislature any action in defiance or ignorance of such modality cannot be protected or preserved on the plea of estoppel. The reliance placed on the decision of this Court in Cochin University of Science and Technology [2008 (5) TMI 755 - SUPREME COURT] was also misplaced. In that case students who had taken admission in NRI Quota, thereafter contended that their fee structure be slashed to the same level as applicable to non NRI students. The concept of estoppel was pressed into service while rejecting said submission but that cannot be a ground to deny the express protection available under a legislation.
Thus, the University was not entitled and competent to devise its own fee structure in the present matter without having the fee fixed by the Committee on Fixation of Fee as contemplated under 1992 Act. The matters shall therefore have to be referred to said Committee and the University is directed to place the entire material including its balance-sheet and accounts before the Committee on Fixation of Fee within two weeks from the date of this Judgment. The Committee shall thereafter bestow attention and fix appropriate fee structure for the academic year 2013-14 onwards. It goes without saying that if the fee structure fixed by the University is found by the Committee to be inappropriate, consequential benefit and advantage shall be given to each and every student. The Committee shall fix the appropriate fee structure for the current academic Session 2018-19 as well. The entire exercise shall be completed by 31.08.2018.
The impugned judgement set aside - appeal allowed.
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2018 (7) TMI 2344 - JAMMU AND KASHMIR HIGH COURT
Seeking grant of bail (successive bail application) - Smuggling - recovery of poppy straw - contraband substances or not - offences under Section 15/18 NDPS Act - whether a successive application for bail will or will not lie before this court? - HELD THAT:- The law evolved on the subject is that the jurisdiction of the Sessions Court and the High Court to consider an application for the grant of bail is concurrent. If the Sessions Court has rejected an application for bail, the High Court can consider the prayer afresh particularly when the order of the rejection of the bail is bad and perverse on the face of it.
What gets revealed from the order of the trial court is that the quantity of the contraband recovered from the possession of the accused does not fall within the parameters of commercial quantity but it is an intermediary one and, therefore, the application of the applicants had to be considered under the provisions of 497 Cr. PC. It is only on the application of the rigor of Section 37 of NDPS Act to a given case that bail can be withheld. In any case which does not fall within the purview, scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility and celerity of Section 497 Cr. PC. Therefore, a realistic view and a pragmatic approach has to be taken in such a case.
The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of “bail or jail” in non-bailable offences. Court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.
There appears to be no reasonable ground for declining bail to the applicants. The maxim of the law of bails which has its application to the case on hand where the quantity of narcotics recovered from the applicants falls within the scales of an intermediary quantity, for which the punishment provided is upto 10 years and a fine of rupees one lac is “bail and not jail”.
The applicants are admitted to bail, in case they furnish a personal bond to the tune of Rs. 50,000/- each with a surety of the like amount each to the satisfaction of the learned Court below on the terms and conditions fulfilled - bail application allowed.
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2018 (7) TMI 2332 - SUPREME COURT
Dishonour of Cheque - presumption Under Sections 118 and 139 of the N.I. Act was not rebutted by the Respondent - judgment of conviction and sentence passed against the Accused set aside - HELD THAT:- Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan.
In the present case, the Respondent has failed to produce any credible evidence to rebut the statutory presumption - The Appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt. The Respondent having admitted that the cheques and Pronote were signed by him, the presumption Under Section 139 would operate. The Respondent failed to rebut the presumption by adducing any cogent or credible evidence. Hence, his defence is rejected.
The impugned order passed in Criminal Revision Petition is hereby set aside, and the order of Conviction and Fine passed by the Trial Court is restored - Appeal allowed.
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2018 (7) TMI 2320 - SUPREME COURT
Award of interest pendente lite at 12% on the award for damages excluding security deposits - Whether Clause 16(3) of the General Contract Clauses (GCC) restricted the power of the arbitrator to award interest pendente lite? - HELD THAT:- The liability for interest pendente lite does not arise from any term of the contract, or during the terms of the contract, but in the course of determination by the Arbitrators of the losses or damages that are due to the claimant. Specifically, the liability to pay interest pendente lite arises because the claimant has been found entitled to the damages and has been kept out from those dues due to the pendency of the arbitration i.e. pendente lite.
The Arbitrators rightly awarded interest pendente lite for the period from 26.09.1988 to 23.03.2001 which is the date of the award, on the amounts found due to the claimant. Undoubtedly, such a power must be considered inherent in an Arbitrator who also exercises the power to do equity, unless the agreement expressly bars an Arbitrator from awarding interest pendente lite. An agreement which bars interest is essentially an agreement that the parties will not claim interest on specified amounts. It does not bar an Arbitrator, who is never a party to the agreement from awarding it.
Further, this Court considered an identical Clause in the contract in the case of Ambica Constructions v. Union of India [2017 (4) TMI 1423 - SUPREME COURT], wherein it observed that the Clause of the GCC did not bar the arbitrator from awarding interest pendente lite and affirmed the award passed by the arbitrator. The three Judge Bench of this Court held that the contention raised by the Union of India based on the Clause of the GCC that the arbitrator could not award interest pendente lite was not a valid contention and the arbitrator was completely justified in granting interest pendente lite.
Thus when a dispute is referred to for adjudication to an arbitrator, a term of such a nature as contained in the Clause 16(3) of GCC, that is binding on the parties cannot be extended to bind an Arbitrator. The Arbitrator has the power to award interest pendente lite where justified - the award passed by the Arbitral Tribunal is restored - appeal allowed.
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2018 (7) TMI 2315 - DELHI HIGH COURT
Amount payable to the petitioner - Despite the Court's order with respect to the payment to the petitioner, no further action was taken - respondent Advocate submits that the decision quantifying the amount payable to the petitioner has since been taken and would be communicated to the petitioner within two days - HELD THAT:- The amounts determined shall also be credited to the petitioner accordingly within a week. It is stated that the petitioner has preferred a contempt proceedings for noncompliance of the Court‟s order. The present order will not in any way prejudice the rights of the parties in those proceedings.
Application stands disposed of accordingly.
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2018 (7) TMI 2293 - SUPREME COURT
Ban on import of pet coke - evaluation of pollution load of pet coke versus possible alternatives - HELD THAT:- On a reading of the affidavit, it is clear that a meeting was held by the Ministry of Environment, Forest and Climate Change along with officers of the Ministry of Petroleum and Natural Gas and EPCA and discussions were also held with the Directorate General of Foreign Trade.
A consensus decision has been taken that the use of imported pet coke all over the country may be permitted only in the following industries : cement, lime kiln, calcium carbide and gasification. It is stated that this would be in compliance with the WTO norms and these industries may be permitted to import pet coke for use as a feedstock or in the manufacturing process and not as a fuel.
Since the decision to permit limited import of pet coke has been taken by consensus by all the authorities mentioned above and since the time already fixed by us expired on 30.06.2018, we direct that the decision taken in para 1.10 in terms of the Minutes dated 18.07.2018 be notified and implemented with immediate effect - Report disposed off.
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2018 (7) TMI 2283 - DELHI HIGH COURT
Dishonor of Cheque - insufficient funds - parties entered into a settlement on two occasions but the appellants did not comply with the terms of settlement - HELD THAT:- In the present case, the appellants (defendants in the suit) were duly served with the summons for judgments and admittedly the appellant did not file the leave to defend within the prescribed period of ten days. Surprisingly, the Joint Registrar, without any application on behalf of the appellants granted further time beyond ten days prescribed to the defendants to file leave to defend by an order dated 15.11.2016. When the matter was listed on 28.11.2016, it was noticed that leave to defend had not been filed. No time was extended and thereafter the matter was adjourned from time to time to enable the parties to resolve the matter.
The provisions of the Order XXXVII of the Code are no doubt extremely stringent. The same are to be followed strictly, as the suits falling in this Chapter, as the heading suggests, are Summary suits, based on a written contract or dishonour of cheque etc.
It may be noted that the parties entered into a settlement on two occasions but the appellants did not comply with the terms of settlement. The matter was listed before the Single Judge on 10.1.2018, when the same was adjourned at the request of the counsel for the appellants, it was made clear that no adjournment would be granted on the next date. Despite an express direction having been given, no steps were taken by the counsel of the appellants to ensure that the applications were placed on record.
Sequence of events narrated hereinabove would show the conduct of the appellants as to how the appellants have succeeded in delaying the matter, which is evident from the facts that the appellants did not fulfil their financial liability; the cheques issued by the appellants to secure the loan were dishonoured; the appellants thereafter entered into an amicable settlement with the respondent and offered to pay Rs.3,22,02,660/- along with pendente lite interest and future interest at the rate of 24%, per annum; deed of compromise was executed and again post-dated cheque was handed over by the appellant to the respondent, which was also dishonoured due to insufficient funds. Since the settlement was not honoured by the appellants, the respondent was forced to file a suit under the provisions of Order XXXVII of the Code. In the suit, the appellants again entered into a settlement with the respondent vide Compromise/Settlement deed dated 23.12.2016, and agreed to pay the sum of Rs.2,38,61,907/- by way of two post-dated cheques, which cheques were also dishonoured on account of insufficient funds.
There are no infirmity with the view taken by the Single Judge that in the absence of leave to defend objection, with regard to jurisdiction and the plaintiff being a money lender, could not have been considered - once the appellant had entered into a settlement with the plaintiff and no plea of jurisdiction was raised at that point of time, the appellant cannot be allowed to raise the same at this stage.
Appeal dismissed.
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2018 (7) TMI 2277 - SC ORDER
Allocation of a sum of Rs. 10 Crores for payment to the affected employees for payment on account of various reasons such as marriage of daughters, ailment, old age disease, payment of loan etc. - HELD THAT:- In view of the action that has been taken by the State Government with respect to the employees of the various Corporations, nothing further is required to be done in the Petition.
SLP disposed off.
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2018 (7) TMI 2274 - BOMBAY HIGH COURT
Compulsory retirement of the Petitioner - HELD THAT:- The challenge raised in the instant Petition in respect of the order directing compulsory retirement of the Petitioner need not be gone into and the Petitioner agrees for the aforesaid in view of the statement made on behalf of Respondent No.1 by Mr. Madhukar Khade, Administrative Officer (Establishment), to the effect that the departmental proceedings initiated against the Petitioner would not be proceeded further and the departmental enquiry proceedings would stand dropped in view of the order of compulsory retirement issued against the Petitioner.
Petition disposed off.
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2018 (7) TMI 2273 - SUPREME COURT
Pre- reference and pendente lite interest under the Arbitration Act, 1940 - supply of 1200 Metric Tons of Sodium Carboxyl Methyl Cellulose - parties ultimately went to arbitration in order to decide what should be the contract price for supply of 1200 MT of CMC - HELD THAT:- Section 31(7) of the Act, by using the words “unless otherwise agreed by the parties”, categorically specifies that the arbitrator is bound by the terms of the contract so far as award of interest from the date of cause of action to date of the award is concerned. Therefore, where the parties had agreed that no interest shall be payable, the Arbitral Tribunal cannot award interest - Section 31(7)(a) of the Act ought to have been read and interpreted by the Arbitral Tribunal before taking any decision with regard to awarding interest.
In STATE OF U.P. VERSUS HARISH CHANDRA & CO. [1998 (11) TMI 677 - SUPREME COURT] a different version of Clause 1.09 was considered. Having regard to the restrictive wording of that clause, this Court held that it did not bar award of interest on a claim for damages or a claim for payments for work done and which was not paid. This Court held that the said clause barred award of interest only on amounts which may be lying with the Government by way of security deposit/retention money or any other amount, refund of which was withheld by the Government - But in the present case, clause G1.09 is significantly different. It specifically provides that no interest shall be payable in respect of any money that may become due owing to any dispute, difference or misunderstanding between the Engineer-in-Charge and contractor or with respect to any delay on the part of the Engineer-in-Charge in making periodical or final payment or in respect of any other respect whatsoever. The bar under Clause G1.09 in this case being absolute, the decision in Harish Chandra will not assist the appellant in any manner.
In the present case, clause 16 of the General Conditions of Contract only speaks of any delay in payment not making ONGC liable for interest. There is nothing in this clause which refers even obliquely to the Arbitrator’s power to grant interest - Since interest is compensatory in nature and is parasitic upon a principal sum not having been paid in time, this Court has frowned upon clauses that bar the payment of interest. It has therefore evolved the test of strict construction of such clauses, and has gone on to state that unless there is a clear and express bar to the payment of interest that can be awarded by an arbitrator, clauses which do not refer to claims before the Arbitrators or disputes between parties and clearly bar payment of interest, cannot stand in the way of an arbitrator awarding pre-reference or pendente lite interest.
Thus, for pre-reference, pendent lite and future interest, ONGC is to pay the differential amount of interest of 8% till 21.01.1999 and 30.04.2003 within a period of eight weeks from today. In the interest of justice, we clarify that on and from 21.01.1999, till payment, future interest is to be paid at 6% per annum on the balance differential sum of interest, being the difference between 10% and 18%, and similarly, on the balance differential sum of interest between 10% and 18% on and from 30.04.2003 till payment.
Appeal allowed.
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2018 (7) TMI 2268 - SUPREME COURT
Misconduct by Constable - Allegation is that Appellant remained absent without proper permission of competent authority with consent of his Guard Commander from his duty on 23.10.1999 from 0900 hrs. to 0930 hrs - rape - it is also alleged that while functioning as constable (Guard) has committed an act of misconduct in his capacity as a member of the force in that he tried to do sexual intercourse with a woman with mutual consent by giving money which amounts to indiscipline/moral turpitude - Violation of principles of natural justice - HELD THAT:- Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may.
There is no requirement of appointment of Presenting Officer in each and every case, whether statutory Rules enable the authorities to make an appointment or are silent. When the statutory Rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited. When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a given case to advance the cause of justice.
The question which was debated before this Court was that since Regulation 7(2) does not contain any provision for giving an opportunity to the delinquent officer to represent before disciplinary authority who reverses the findings which were in favour of the delinquent employee, the Rules of natural justice are not applicable. This Court held that principle of natural justice has to be read in Regulation 7(2) even though Rule does not specifically require hearing of delinquent officer.
Thus, the question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. In the present case we have noticed that the High Court had summoned the entire inquiry proceedings and after perusing the proceedings the High Court came to the conclusion that Inquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further held that the Inquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry - The High Court having come to the conclusion that Inquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost which adversely affecting his independent role of adjudicator. In the circumstances, the principle of bias shall come into play and the High Court was right in setting aside the dismissal orders by giving liberty to the Appellants to proceed with inquiry afresh.
All the appeals are dismissed subject to the liberty as granted by the High Court that it shall be open for the Appellants to proceed with the inquiry afresh from the stage as directed by the High Court and it shall be open for the Appellant to decide on arrear pay and allowances of the Respondents.
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2018 (7) TMI 2264 - SC ORDER
Seeking benefit of certain answers for which marks had not been awarded, which was found out in the process of RTI application - HELD THAT:- When the matter came up before this Court, the learned Standing Counsel for the State of Madhya Pradesh are directed to ascertain whether there is any vacancy in the post of Commercial Tax Inspector available as on today. A detailed counter affidavit has been filed on behalf of the State. It is pointed out that subsequent selections have been conducted and in case the appellant is appointed at this juncture it would have serious repercussions on the seniority of the officers already appointed.
It is only in the interest of justice and for doing complete justice between the parties that the appellant is appointed in one of the available posts of Commercial Tax Inspector, without treating this as a precedent.
Appeal disposed off.
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2018 (7) TMI 2253 - MADHYA PRADESH HIGH COURT
Grant of regular pay scale from the date of initial appointment - HELD THAT:- Without commenting upon merits of the case, the present writ petition stands disposed of with a direction to the respondents to consider the petitioner's claim by passing a reasoned and cogent order and if the petitioner is entitled for the benefit, the same shall be extended to the petitioner, as has been extended in other identical matters. The aforesaid exercise shall be completed within a period of four months from the date of receipt of certified copy of this order.
The writ petition stands disposed of.
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2018 (7) TMI 2240 - DELHI HIGH COURT
Presentation of present petition as a petition under Article 227 of the Constitution of India - HELD THAT:- It has been specifically observed to the effect that the nature of the suit would not change by virtue of granting the amendment application where the property has initially been valued at ₹ 13,50,000/- but as the market value was at ₹ 1,20,00,000/- the applicant plaintiff therein had submitted an application for amendment so as to give the correct value of the suit property in the plaint and taking the same into account the amendment sought was granted.
In view of the verdicts of the Supreme Court in Mount Mary Enterprises v. Jivratna Medi Treat Private Limited [2015 (1) TMI 1398 - SUPREME COURT], Lakha Ram Sharma v. Balar Marketing Private Limited [2003 (8) TMI 578 - SUPREME COURT] and SUBHASHINI MALIK VERSUS S.K. GANDHI AND ORS. [2016 (9) TMI 1613 - DELHI HIGH COURT] and also the factum that the amendment sought by the plaintiff does not in any manner prejudice the defendant No. 2 i.e., the present petitioner in any manner and does not change the nature of the suit also in any manner and taking into account the factum that defendant No. 2 has himself raised the issue in relation to the aspect of under valuation of the suit property and for the purpose of the court fees and jurisdiction qua which issue no. 8 was framed at the time of framing of the issues coupled with the factum that virtually the trial has yet to commence in as much as the testimonies of the witnesses are yet to be led, it is held that there is no merit in the prayer made by the petitioner seeking the setting aside of the impugned order dated. 2.6.2018 qua the amendment sought by the respondent No. 1 in relation to the para 19 of the plaint.
Petition dismissed.
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2018 (7) TMI 2230 - BOMBAY HIGH COURT
Dishonor of Cheque - legally enforceable liability or not - rebuttal of presumption - cross-examination of witnesses - HELD THAT:- It is now well settled that at the stage of issuance of process, the Magistrate cannot consider any probable defence in as much as the accused is not before the Court when the order of issuance of process is passed. Thus, an order issuing process cannot conceivably be challenged on the basis of any actual or probable defence, which, as the learned Sessions Judge has rightly found, can only be gone into at the trial. However, it is entirely a different matter, when on the basis of the allegations in the complaint, the notice and the documents produced by the complainant and even after taking them at the face value, prima facie, no offence is made out.
The respondent presented the cheque bearing No. 079539 dated 2-4-2015 on 25-5-2015, which got dishonoured as the concerned account was closed sometime in the year 2010. In the notice, there was a specific averment made that the two undated cheques were issued by way of security. The respondent did not claim in the complaint that the cheques were issued by way of security. However, rest of the averments as made in the notice, find place as they are in the complaint. The question, in such circumstances, is whether the dishonour of the cheque can give rise to an offence under section 138 of the Act.
Coming to the present case, on the respondent's own saying, the subject cheque (along with other cheque, in respect of which the respondent chose not to file any complaint) was undated and in all probability, was passed somewhere in the year 2006, at the inception of the contract and was agreed to be presented for encashment after 7 1/2 years, which the respondent resultantly did by putting the date 2-4-2015. The subject cheque is shown to be for an amount of ₹ 11,25,000/-. Thus, on the basis of the averments in the notice as well as the complaint itself, it cannot be accepted, prima facie, that there was a liability of ₹ 11,25,000/- against the petitioner towards the respondent at the time when the cheque was signed and passed on to the respondent. In fact the averments would show that there were two undated cheques passed by the respondent - Admittedly, there is not even an averment that any such amount was due and outstanding on or about the date, on which the two cheques were issued by the petitioner.
There cannot be any manner of dispute with the proposition that once the presumption arising under section 118 read with section 139 of the Act is raised, it can be rebutted by the accused on preponderance of probability at the trial. This can be done on the basis of cross-examination of the complainant and his witnesses, if any, and/or by leading independent defence evidence - Here is a case, wherein on the say of the respondent himself and taking the contents of the notice and the complaint on their face value, it cannot be said that the cheque was issued for the discharge of any legally enforceable debt or liability, as on the date of issuance of the cheque.
The learned Magistrate as well as the learned Sessions Judge has failed to consider the relevant aspects and the impugned order issuing process, thus, cannot be sustained - Petition allowed.
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2018 (7) TMI 2229 - BOMBAY HIGH COURT
Dishonor of Cheque - rebuttal of presumption - evidence in support of defence or not - whether presumption under Section 139 read with Section 118 of the aforesaid Act would operate against the respondent (original accused) for an alleged offence of dishonour of cheque under Section 138 of the said Act? - whether the respondent had rebutted such presumption when he failed to file reply to the complaint of the appellant and he did not adduce any direct evidence in order to support his defence? - HELD THAT:- Although presumption does arise against the accused in such cases under Sections 118 and 139 of the said Act, the presumption is rebuttable on the touchstone of preponderance of probabilities. The accused is also entitled to show that the foundational facts on which such presumption arises have not been proved by the complainant and further that the accused can rebut a presumption under the said provisions, either by adducing direct evidence in support of his stand or by discrediting the complainant in cross-examination to demonstrate that his defence was probable. On the accused demonstrating the real facts of the matter either by direct evidence or by showing that the evidence and material placed on record by the complainant himself was not believable and that it stood discredited, the presumption would cease to operate against the accused.
In the present case, it was not disputed that the signatures on the cheques were that of the respondent. It was argued that the cross-examination of the appellant demonstrated that he had failed to support his case of having advanced cash hand loan to the respondent. It was further contended that the cross-examination also demonstrated that the cheques were issued for some other transaction and not for repayment of hand loan as claimed by the appellant - the appellant failed to produce any material in support of his claim that he had indeed advanced cash hand loan of ₹ 2 lakhs to the respondent. This was a foundational fact in the present case because according to the appellant the cheques in question had been issued by the respondent in order to repay the said loan amount. The appellant failed to discharge the initial burden to show that he had required funds for advancing money to the respondent.
A perusal of the statements made in cross-examination by the appellant shows that he has completely failed to prove the foundational fact of having advanced loan to the respondent. Therefore, his claim that the cheques in question were issued by the respondent for repayment of the loan could not be accepted. The failure on the part of the appellant to produce his account statement and absence of entry in accounts maintained by him regarding loan advanced to the respondent, does show that there was no material to support the basic facts on which the entire case of the appellant was based - As the foundational facts were not established by the appellant in the present case, it cannot be said that the trial Court committed any error in holding that the respondent deserved to be acquitted. The appellant's case stood completely discredited in cross-examination and, therefore, he could not succeed before the trial Court riding on the presumption said to operate in his favour under Sections 118 and 139 of the aforesaid Act.
Appeal dismissed.
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2018 (7) TMI 2226 - DELHI HIGH COURT
Dishonor of Cheque - cheques when presented at the bank were returned unpaid and inspite of notice of demand, the petitioner did not pay the amount - Territorial Jurisdiction - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- The question of territorial jurisdiction is rendered academic for the simple reason the averments in the complaints themselves endorse the objection of the petitioner that no charge for offence under Section 138 of the Negotiable Instruments Act, 1881 can be brought against him with regard to the mentioned three cheques since they were issued as security cheques.
In view of admitted position of the complainant, the summoning order against the petitioner on their basis is found to be incorrect and wrong exercise of jurisdiction - application allowed.
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2018 (7) TMI 2220 - BOMBAY HIGH COURT
Failure of the MahaRERA Appellate Authority to take cognizance of the complaints tendered by the complainants in respect of the unregistered project - HELD THAT:- On completion of the process of up-gradation of the software equipped of receiving online complaints, in respect of unregistered projects by the MahaRERA within the time stipulated, it would be open for the Petitioner to register the complaint in observance of the procedure prescribed in that behalf. The complaint tendered online by the Petitioner and other similarly situated complainants, in respect of unregistered projects would be entertained and the same would be dealt with in accordance with the procedure that is being adopted by MahaRERA in respect of disposal of complaints in relation to registered projects. The statement is made by the learned counsel appearing for Respondent No.1 on instructions from Mr. Wani, Administrative officer of MahaRERA who is present before the Court.
Petition disposed off.
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2018 (7) TMI 2219 - SUPREME COURT
Role of Chief Justice as the "Master of Roster" - Seeking this Court to clarify the administrative authority of the Chief Justice of India (Chief Justice) as the Master of Roster and for laying down the procedure and principles to be followed in preparing the Roster for allocation of cases - the submission is that once the Rules are framed, matters should be listed and fixed for hearing as per the provisions, particularly Order III Rules 7 and 8, thereof.
As per A.K. Sikri, J.
HELD THAT:- The Constitution makers reposed great trust in the judiciary by assigning it the powers of judicial review of not only the administrative acts of the Government/Executive but even the legislative acts of the Legislature. In the process, judiciary discharges one of the most important functions, namely, the administration of justice. It does so by upholding the Rule of law and, in the process, protecting the Constitution and the democracy. Our Constitution guarantees free speech, fair trials, personal freedom, personal privacy, equal treatment under the law, human dignity and liberal democratic values - the judiciary even without the sword or the purse, remains the guardian of the Constitution. Its sole strength lies in the public confidence and the trust.
The faith of the people is the bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary - It has also become a regular feature that even laymen, who are constitutionally illiterate, enter such debate and evaluate the outcomes influenced by their emotions, rather than on legal or constitutional principles.
The role of the 'Chief Justice' as Master of Roster also assumes much significance. Each 'Chief Justice' performs his role by consultation and consensus, after taking into account various factors including individual Judges' interests and abilities, their specialisation in a particular area, their capacity to handle particular type of cases and many other relevant considerations. However, the exercise of such a power with wisdom has to be left to the 'Chief Justice' who is given the prerogative of the 'Master of the Roster'.
It is difficult to accept the prayer of the Petitioner that the expression 'Chief Justice' appearing in the Supreme Court Rules, 2013 be read as 'Collegium' of five senior most Judges for the purpose of allocating the matters. At the same time, we feel that debate generated as a result has served its purpose.
As per Ashok Bhushan, J.
With regard to procedure and practice of Supreme Court, Article 145 empowers the Supreme Court to frame Rules with the approval of the President. The word practice and procedure of the Court are wide enough to include practice and procedure relating to preparation of roster and allocation of cases. The Rules framed by Supreme Court Under Article 145 specifically refers the Chief Justice in Chapter VI as noted above, the Chief Justice, who is to nominate the bench for hearing every case, appeal or matter. There is no indication in any of the constitutional provisions or Rules framed thereunder that for allocation of cases and formation of benches, Chief Justice should be read as collegium. For reading Chief Justice as collegium, Under Article 124, there was a constitutional basis.
The submission that Constitution does not specifically mention Chief Justice to exercise power of allocation of cases and constitution of Benches, hence, Chief Justice is not empowered to do the same, is not a valid submission. Under the constitutional scheme itself as contained in Article 145, the practice and procedure of the Supreme Court is to be regulated by the Rules made by the Supreme Court with approval of the President.
Rules framed Under Article 145 specifically empower the Chief Justice to nominate Benches for hearing cases or appeal. Non-containing of any specific provision in the Constitution empowering the Chief Justice to frame the roster to allocate the cases is inconsequential since the entire subject was to be covered by Rules made Under Article 145.
The law laid down by this Court is that; the power of framing roster which inheres in the Chief Justice has constitutional and statutory backing and by convention it is treated as prerogative of the Chief Justice. We, thus, cannot import the international practices in the constitutional and statutory scheme of this Court.
Petition disposed off.
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2018 (7) TMI 2206 - SUPREME COURT
Employees Provident Fund - non-payment of the Provident Fund contribution - non-consideration of non-working days of the employees - non-application of mind - HELD THAT:- In the absence of any application of judicial mind to the factual and legal controversy involved in the appeal and without there being any discussion, appreciation, reasoning and categorical findings on the issues and why the findings impugned in the writ petition deserve to be upheld or reversed, while dealing with the arguments of the parties in the light of legal principles applicable to the case, it is difficult for this Court to sustain such order of the Division Bench. The only expression used by the Division Bench in disposing of the appeal is "on due consideration".
Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned Counsel for the parties in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind these principles while disposing of the writ petition.
Case remanded to the Division Bench of the High Court for deciding the writ petition afresh on merits in accordance with law - appeal allowed by way of remand.
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