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Indian Laws - Case Laws
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2021 (12) TMI 1498
Seeking ad interim order of injunction in respect of the assets and properties of the deceased - passing of temporary injunction order against a non-party to a probate proceeding - absence of evidence of any attesting witness - HELD THAT:- Despite a challenge having been thrown to the authenticity of the signature of the petitioner in certain documents annexed to the application, the necessary particulars of fraud and/or forgery, ascontemplated in Order VI Rule 4 of the Code of Civil Procedure, have not been established at this stage to hold ex facie that fraud was perpetrated by the respondent.
It is true that the probate court is not debarred absolutely from adjudicating prima facie on the right, title and interest of the contesting parties for the limited purpose of deciding an application for appointment of administrator pendentelite and/or passing orders of injunction in aid of the final grant in the probate proceeding. However, in the instant case, there is no scope of reconsidering the previous order of a co-ordinate Bench, as modified by the appellate court, at the ad interim stage itself before affidavits are exchanged and the injunction application / application for administrator pendentelite is heard finally on merits, since no change of circumstance in the interregnum has been established by the petitione
In such view of the matter, the petitioner’s prayer for further reliefs in terms of the prayers other than relief of the injunction application has to be turned down at this stage.
The respondents shall file their affidavit(s)-in-opposition to the injunction application - Reply/replies, if any, thereto shall be filed by January 14, 2022 - The matter shall next be enlisted for final hearing.
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2021 (12) TMI 1497
Contempt petition - possession of the immovable properties not handed over to Bordeuri Samaj - various movable properties of the Temple, not handed over to the Petitioner - surplus cash amount of not less than Rupees eleven crores, which belonged to the Deity, it has not been paid - books of accounts pertaining to the Temple have not been handed over to the Petitioner - opportunity to file objections not provided - principles of natural justice - HELD THAT:- Perusal of the order shows that there was no opportunity granted to the parties to file any objections to the report. It cannot be said that as the Respondents did not object to the report, they have accepted the liability to pay the amount of Rs. 7,62,03,498/-. Moreover, the observations in the report cannot be treated as concluded findings. Even assuming that paragraph 73 of the judgment includes a direction to pay money, there is no adjudication made to decide what is the extent of liability.
Hence, no case made out to take action Under Article 129 of the Constitution read with the Contempt of Courts Act, 1971. Moreover, the contempt jurisdiction is always discretionary which should be exercised sparingly and with circumspection. This is not a fit case to exercise the said jurisdiction by punishing the Respondents. However, it is always open for the Petitioner to adopt appropriate proceedings for recovery of money as mentioned in the report in accordance with law.
The contempt petitions stand disposed of.
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2021 (12) TMI 1490
Fraudulent and unlawful withdrawal from bank account - Unauthorised premature encashment of the two FDRs - whether a case is made out for interference by this Court in the concurrent findings of the Courts below? - whether conviction of the present Appellant for offences Under Sections 409, 420 and 477-A of the Indian Penal Code as well as Under Section 13(2) read with Section 13(1)(d) of the PC Act is sustainable?
Fraudulent and unlawful withdrawal of Rs. 10 Lakhs from Account No. 282 in the year 1994 - HELD THAT:- In order to substantiate the charge Under Section 477-A Indian Penal Code, the primary contention of the Prosecution is that despite passing the three cheques (Ex P25 to Ex P27), the Appellant did not make the relevant entries into the Current Account Ledger (Ex P23) of account No. 282. This was allegedly done to conceal the withdrawals as there were insufficient funds in the account of the Academy. We may note that the expression 'intent to defraud' as given Under Section of 477-A, contains two elements, deceit and injury. So far as the second element is concerned, it has already been noted that no financial injury was caused to the Bank.
It is also alleged that the afore-said amount of Rs. 10 lakh was collected by the Appellant. The prosecution witnesses have deposed that the operating procedure at the Bank entailed that the signature of the person who received the cheque would be recorded on the back side of the cheque. Two incriminating circumstances have come on record in so far as this allegation is concerned. First, as deposed by PW-2, and corroborated by PW-10, the signature on the back of the cheque did not tally with that of Accused No. 3. Second, the signature of the wife of the Appellant- N. Lalitha, appears on the back of Ex. P25. Undoubtedly, this raises a suspicion. But as can also be seen from the record, there are contradictions on this point as well. PW-4 has acknowledged that the payment for the three cheques was received by the Appellant and he subsequently handed over the same to Accused No. 3, who at the relevant time, was waiting in the office room of the Appellant. Further, neither of the courts below have recorded a finding that the Appellant gained any pecuniary benefit nor is there any other adverse circumstance which may lead us to reach such a conclusion.
Unauthorised premature encashment of the two FDRs belonging to B. Satyajit Reddy - HELD THAT:- In the case in hand, the Appellant in his examination Under Section 313 Code of Criminal Procedure has neither disputed the factum of the premature withdrawal, nor of the subsequent transfer of the amount to account No. 282. On the contrary, he has specifically claimed that he only acted on the written request made by the customer. The Appellant has fortified his assertion by producing two letters (Ex P6 and Ex P7) statedly written by B. Satyajit Reddy and addressed to the Branch Manager. The deposition of the handwriting expert (PW-10) has given some credence to the Appellant's version as according to his opinion, both the letters bear the signature(s) of B. Satyajit Reddy.
There is a serious dispute on the factum of whether or not B. Satyajit Reddy had sought the premature withdrawal and the subsequent transfer of the proceeds of FDRs to the account of Academy. The best person to clear the air and enlighten us would have been B. Satyajit Reddy himself, but neither was he associated during the course of inquiry/audit or the investigation nor was he examined as a prosecution witness in the trial - There was, thus, sufficient time to contact a valuable customer like B. Satyajit Reddy and enquire about the genuineness of those letters. The Chairman of the Bank (PW-1) in his complaint to CBI dated 27.11.1995 (Ex P1) did not make even a bald allegation about genuineness of these two letters which were already in his possession. Unfortunately, CBI too made no effort to contact B. Satyajit Reddy and ascertain the correct facts. There is indeed no quarrel that no financial loss was caused to B. Satyajit Reddy.
The Prosecution has failed to establish the charge of criminal breach of trust against the Appellant beyond a reasonable doubt. We are inclined to agree with the learned Senior Counsel for the Appellant that the non-examination of B. Satyajit Reddy has been materially fatal to the case of the prosecution - in the absence of cogent and unimpeachable evidence to prove that the Appellant has misappropriated the funds of the Bank and/or of B. Satyajit Reddy, it would not be safe to convict him under the provisions of Section 409 Indian Penal Code.
So far as the charge Under Section 420 Indian Penal Code is concerned, once again, the best and the only person who could throw light on whether or not he had voluntarily agreed to transfer his FDR amount in the account of the Academy or there was an element of inducement, cheating or a false promise, was B. Satyajit Reddy himself who has chosen not to enter the witness box. In the absence of even an ordinary complaint by B. Satyajit Reddy regarding misuse of his FDRs, it will be too far-fetched to hold that the Appellant had any mens rea to deceive or to misappropriate or destroy valuable property of B. Satyajit Reddy.
Thus, to conclude, no financial loss was caused to the Bank - no pecuniary loss was caused to B. Satyajit Reddy or to any other customer of the Bank - the material does not disclose any conspiracy between the Accused persons. In the absence of any reliable evidence that could unfold a prior meeting of minds, the High Court erred in holding that Appellant and other Accused orchestrated the transactions in question to extend an undue benefit to Accused No. 3 - the Appellant committed gross misconduct by misusing his position as the Branch Manager. Notwithstanding the final outcome, the Appellant's abuse of powers clearly put the Bank at the risk of financial loss - despite dereliction of his duties, none of the acts proved against the Appellant constitute 'criminal misconduct' or fall under the ambit of Sections 409, 420 and 477-A Indian Penal Code.
Thus, the prosecution has failed to prove the charges Under Sections 409, 420 and 477A Indian Penal Code against the Appellant beyond reasonable doubt. As a necessary corollary thereto, his conviction Under Section 13(2) read with Section 13(1)(d) of the PC Act can also not be sustained. However, the benefit of doubt being extended to him on account of a thin margin between 'strong suspicion' and 'conclusive proof', shall not entitle him to initiate a second round of lis to seek his reinstatement or to claim other service benefits from the Bank.
Appeal disposed off.
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2021 (12) TMI 1489
Violation of principles of natural justice - impugned orders contain no reasons in support of their conclusion (non-speaking order) - Declaration of petitioners as Wilful Defaulter - Company was classified as a Non-Performing Asset (NPA) - petitioners filed their response to the show-cause notice but did not object to the issue of show-cause notice by the DGM - HELD THAT:- The impugned orders in the present case have recorded conclusions without indicating the reasons in support of the same - The reasons must reflect some application of mind to the submissions made in the response to the show-cause notice failing which an impression is legitimately created that there is no consideration of such submissions.
As noted, even para no. 3(b) of the Master Circular provides for consideration of such submissions before making the order declaring a person or an entity as a wilful defaulter and the record of reasons in support of the conclusion - In the precise context of the Master Circular dated 01.07.2015, the Division Bench of this Court in M/S. KANCHAN MOTORS AND OTHERS VERSUS BANK OF INDIA AND OTHERS [2018 (7) TMI 1909 - BOMBAY HIGH COURT] was pleased to set aside the orders made by the WDIC and the Review Committee because such orders were found to be non-reasoned or non-speaking orders. The Division Bench did not approve the practice of simply recording conclusions without any reasons to back the same. The Division Bench observed that the absence of reasons in the order of the Review Committee amounts to a denial of justice since it is now well-settled that reasons are live links between the minds of decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity for objectivity so that the affected party can know why the decision has gone against him.
The impugned orders are set aside mainly on the ground that they contain no reasons in support of their conclusion and in that sense are non-speaking orders - The respondents are granted liberty to proceed from the stage of issuance of show-cause notice dated 22.10.2020 and make such orders as may be appropriate in terms of the Master Circular dated 01.07.2015 - petition allowed.
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2021 (12) TMI 1487
Violation of principles of natural justice - registration of F.I.Rs in connection with the matrimonial offences without embarking upon any preliminary enquiry - HELD THAT:- The judgment in THE STATE OF TELANGANA VERSUS HABIB ABDULLAH JEELANI AND ORS. [2017 (1) TMI 1683 - SUPREME COURT] is not applicable in the present case since in that case the F.I.R. was registered under Sections 147,148,149 and 307 of the Indian Penal Code, 1860. The said case, therefore, did not come within the purview of paragraph 120.6 of the Lalita Kumari case - Though paragraph 120.6 does not suggest that preliminary enquiry is to be mandatorily held with regard to the types of cases mentioned therein, the investigating agencies should not be allowed to do away with the preliminary enquiry in such types of cases without any justifiable reason.
The investigating agency in such cases ordinarily should conduct a preliminary enquiry unless it is not shown that immediate registration of FIR would defeat the very purpose of investigation or conducting a preliminary enquiry will be an empty formality.
The State has failed to justify the registration of the F.I.Rs without conducting the preliminary enquiry in both the cases - Accordingly, it is directed that the concerned police shall conduct the preliminary enquiry, in both the cases, within a period of three weeks from the date of communication of this order and upon preliminary enquiry if it is found that there exists sufficient grounds to carry out a fullfledged investigation, they shall proceed with the investigation in terms of Section 156 (1) of the Code of Criminal Procedure, 1973. The two F.I.Rs shall be kept in abeyance till conclusion of the preliminary enquiry.
Application disposed off.
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2021 (12) TMI 1486
Permitting the request of grant of installments of the liability arisen in SVLDRS-3 - Issuance of show cause notice without pre-consultation notice - whether the show cause notices dated 24.09.2020 and 23.09.2021 would require any indulgence? - HELD THAT:- It is quite apparent from the chronology of the events that the petitioner was subjected to the search and afterwards when the respondent has come out with the SVLDR Scheme in the year 2019, the last date of payment of dues by the declarant under sub-section (5) of Section 127 was eventually fixed at 28.02.2021.
When the Court noticed that the outstanding dues from the various government authorities is of more than Rs. 1.22 crores (rounded off) in a period like this, when the request is made for making payment, if in the past the petitioner could not make the same on account of the outstanding dues of the government authorities, which he could not recover due to pandemic, his request could have been considered sympathetically and bearing in mind all these surrounding circumstances. In absence of such consideration on the part of the respondent, the Court needs to intervene.
Issuance of show cause notice without pre-consultation notice - HELD THAT:- The CBEC Master Circular dated 10.03.2017 provides for the preconsultation as a mandatory requirement as can be traced to Section 83 of the Finance Act. The instructions issued by the CBEC as per Section 37(B) of the Central Excise Act would be binding on the authorities of the department. The statutory circulars would be binding upon the department so long as they are not inconsistent with statutory provisions nor mitigate the rigor of the law - In the instant case also, there is no adherence to the said circular by adapting the pre-consultation as contemplated under the circular. This itself is the reason for the Court to quash and set aside the show cause notices. Thus, not only on the ground of absence of pre-consultation before issuance of the show cause notice but also from the discussion held hereinabove in respect of need for the intervention on nongrant of any installment for making payment, the Court is inclined to allow this petition.
The petitioner is permitted to make payment under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 within a period of six (6) weeks from the date of receipt of copy of this order with statutory interest at the rate prescribed thereon from the first date of his application which he has not abided by - petition allowed.
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2021 (12) TMI 1483
Refund of the amount deposited being 25% of the auction sale consideration - HELD THAT:- The High Court ought to have allowed the refund of the amount deposited being 25% of the auction sale consideration. Considering the fact that though initially the appellant deposited 25% of the auction sale consideration, however, subsequently she could not deposit balance 75% due to COVID-19 pandemic. It is required to be noted that subsequently the fresh auction has taken place and the property has been sold. It is not the case of the respondents that in the subsequent sale, lesser amount is received. Thus, as such, there is no loss caused to the respondents.
The order of forfeiture of 25% of the amount of auction sale consideration is set aside - the respondent Bank are directed to refund/return the amount earlier deposited by the appellant, deposited as the part auction sale consideration (minus 50,000/- towards the expenditure which were required to be incurred by the respondent Bank for conducting the fresh auction) within a period of four weeks from today - appeal allowed.
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2021 (12) TMI 1479
Pecuniary (monetary) Jurisdiction - future and pendente lite interest - whether interest claimed in the Statement of Claim can be taken into account for determining the “Specified Value” for the purposes of the pecuniary jurisdiction of the Court? - HELD THAT:- Merely because Section 12(1)(a) of the Commercial Courts Act specifically provides that the interest claimed till the date of filing of the suit is to be taken into account for determining the “Specified Value”, cannot detract from giving full effect to the “value of claim” in an arbitration for purposes of Section 12(2) of the Commercial Courts Act. It is settled principle of interpretation of statute that words of a statute are first understood in their natural and ordinary sense, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. In Section 12(2) of the Commercial Courts Act there are no reason to restrict the ambit and width of “value of claim” in arbitration from its natural meaning of including interest claimed till the date of invocation of arbitration.
The portion of interest claimed till the date of invocation of arbitration would therefore, have to be taken into consideration under Section 12(2) of the Commercial Courts Act for determining the “Aggregate Value” of the claim. There is no dispute, in the present case, that when such interest is added, the “Aggregate Value” of the claim would exceed ₹2,00,00,000/- (Rupees two crore) making the petition under Section 34 of the Act beyond the pecuniary jurisdiction of the learned District Court.
There are no infirmity in the Impugned Order - The appeal is, accordingly, dismissed.
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2021 (12) TMI 1476
Seeking an injunction and restraint order against the defendants from using, divulging, distributing, publishing, revealing or dealing with the proprietary information and trade secrets of the plaintiff - whether the period of limitation for fling of written statement, as contemplated under Order 8 Rule 1 of the CPC got automatically attended, since it is expired during the period of lockdown and to be precise on 09/05/2020?
HELD THAT:- A Similar argument was advanced before the Hon’ble Supreme Court in case of SAGUFA AHMED & ORS. VERSUS UPPER ASSAM PLYWOOD PRODUCTS PVT. LTD. & ORS. [2020 (9) TMI 713 - SUPREME COURT] qua the limitation for fling of an Appeal before the National Company Law Appellate Tribunal, on dismissal of the proceedings by the NCLT on 04/08/2020, Section 421 of the Companies Act, 2013 which provide an Appeal to the Tribunal, which shall be fled within a period of 45 days, from the date on which a copy of the order of Tribunal is made available. The proviso, however, permit the Tribunal to entertain an Appeal after expiry of the said period of 45 days, but within a further period not exceeding 45 days, on being satisfied that the appellant was prevented by sufficient cause from fling the Appeal within that period. In the said case, period of 45 days was over on 02/02/2020 and the attended period, which was the discretionary period, also expired on 18/03/2020, before which the Appeal was not fled, but the Appeal came to be fled only on 28/07/2020.
There are no other option is available to me in the facts of the given case. The statutory period of limitation within which the written statement could be fled in the present case came to be attended by the discretionary power of the Court and even the period of 120 days expired on 09/05/2020 and when the lockdown came to be imposed, ‘period of limitation’ having already expired, the benefit of the order of the Hon’ble Supreme Court cannot be attended to the defendants. The learned Judge has committed no error in refusing to accept the written statement on record, holding that the defendants have forfeited their right to file the written statement, on expiry of period of 120 days.
Finding no legal infirmity in the impugned order, the same is upheld - petition dismissed.
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2021 (12) TMI 1470
Time limitation - the case is that the time period for physically submitting the application for export benefits is getting time barred - HELD THAT:- Noticing that the time period for physically submitting the application for export benefits is getting time barred on 31.12.2021, the order passed in the earlier matter particularly in Stitchwell Garments [2022 (7) TMI 1449 - GUJARAT HIGH COURT] is followed and the respondents are directed to accept the manual application without prejudice to the rights and contentions raised by the either side. The authority concerned shall also look into the same and decide subject to the final outcome of these writ petitions. This may not create equity in favour of anyone.
Let the pleadings be completed on or before 12.01.2022 - Matters to appear on 12.01.2022.
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2021 (12) TMI 1465
Fraud/cheating - Impleadment as a party - Generation of funds through forgery and criminal offences - Locus standi to be heard - HELD THAT:- The applicants who have moved applications for impleadment were heard. However, it is a settled law that such persons cannot be made a party in misc. petition where the complainant seeks invoking of inherent powers of this court for directing firm investigation and for seeking supervision of a proper investigation in a case relating to fraud and cheating. The applicants although may not be necessary party but they have a right to be heard and recognizing their locus standi the counsels have been heard.
In the case of MADHU LIMAYE VERSUS STATE OF MAHARASHTRA [1977 (10) TMI 111 - SUPREME COURT] and in the case of SIMRANJIT SINGH MANN VERSUS UNION OF INDIA (UOI) AND ORS. [1992 (9) TMI 381 - SUPREME COURT], the principle has been recognized that even if a person may not be directly connected in a criminal case and any order passed in a criminal case affects his rights, he has a liberty to move appropriate applications for questioning the legality and validity or correctness of the order which has affected his rights.
Keeping the said principle in mind, this court finds that essentially all the applicants who have been named above are those who have purchased share/shares from BSE and NSE relating to the companies which have been mentioned by the complainant in his complaint to the Investigating Officer. The shares were purchased earlier they are liable to be unfreezed. However, if the same were purchased in between and if it is found that such shares were originally purchased by way of proceeds of crime, they would be liable to be confiscated.
The petitioner as well as the applicants before this court can always submit their stand before the concerned SFIO who shall look into the entire case and reach to its own independent conclusion. If it is found that the shares as purchased by the applicants are in no manner connected, the SFIO shall be free to unfreeze the shares - petition disposed off.
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2021 (12) TMI 1462
Exercise of right of redemption of mortgage - Till what time or date can the right of redemption of the mortgage be exercised by the mortgagors/borrowers in the light of the amendment to Section 13(8) of the SARFAESI Act? - HELD THAT:- Admittedly, what is stated in page-13 was passed in the Lok Sabha and the Rajya Sabha and then it became the Act 44 of 2016 and came into effect on 01.09.2016 - But the important thing to note is that this Report does not indicate that the Committee had even considered Section 60 of the Transfer of Property Act, 1882, which provides the general law of right to redeem a mortgaged asset of a mortgager vis-a-vis the provisions of the SARFAESI Act.
It no where says that there was an intention to bring about a change with regard to the time before which a mortgagor can exercise his right to redeem the mortgage.
It is clear that the legislature did not have any intention to deal with the right of mortgagor to redeem the mortgage when they amended Sec. 13(8) or to modify it in any manner; and amendment cannot be said to have intended to modify the existing law which continued even when the un-amended Section 13(8) of the SARFAESI Act was in force. The amended Sec. 13(8) was intended to only deal with the date when the secured creditor's right to transfer the secured asset should stop and nothing more.
The amended Section 13(8) of the SARFAESI Act merely prohibits asecured creditor from proceeding further with the transfer of the secured asset by way of lease, assignment or sale; a restriction on the right of the mortgagee to deal with the property is not exactly the same as the equity of redemption available to the mortgagor; the payment of the amount mentioned in Section 13(8) of the SARFAESI Act ties the hands of the mortgagee (secured creditor) from exercising any of the powers conferred under the Act; that redemption comes later; extinction of the right of redemption comes much later than the sale notice; and the right of redemption is not lost immediately upon the highest bid made by a purchaser in an auction being accepted - It is held that such a right would continue till the execution of a conveyance i.e. issuance of sale certificate in favour of the mortgagee.
Whether the petitioners are entitled to any relief? - If so, to what relief? - HELD THAT:- In the instant case since the right of redemption of the petitioners has not got extinguished till date because of non-confirmation of sale and non-issuance of sale certificate to the respondents 2 and 3, and since thepetitioners have made substantial payments amounting to ₹ 80 Lacs out of the total dues of ₹ 2,28,81,882.00 as on 29.03.2019, and have shown a bona fide intention to pay the rest of the dues within a short time, the relief granted to the petitioners subject to what is mentioned below.
Subject to the petitioners paying the entire balance outstanding dues with applicable interest to the 1st respondent-Bank within four weeks from today, the 1st respondent-Bank shall close the loan account of the petitioners and restore possession of their residential property to them - If not, this Writ Petition shall stand dismissed with costs of ₹ 25,000/- without reference to this Court - petition allowed.
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2021 (12) TMI 1452
Murder - Acquitting two young men Accused of murdering a police officer, overturned by the High Court convicting them for life - HELD THAT:- On considering the evidence of PW-7, a shoe shop owner, it gives its cogent reasoning for its non-acceptance. The previous bill and the relevant bill had a difference of about 8 months in between and this witness has not seen who has purchased the chappals marked as M.O. 8 from his shop. Similarly, PW-20 who was running an STD booth could not convince the trial court as he could not say that the Accused had made calls from his booth. On motive, it was correctly analysed that there was nothing to implicate the Accused with motive to murder the deceased.
PW-1 was the sterling witness of the prosecution. Certainly, he had an axe to grind against the Accused who had given a complaint against him. He was facing a departmental enquiry and suspension. It is too strange that he could be a chance witness. His evidence was thoroughly analysed by the trial court including the distance between his place of work and his residence. He did not use his wireless which was not in operation and went to the police station to give an oral complaint the first time but the same was not registered. PW-25 was known to him and it is surprising as to why no attempt was made to save the deceased immediately by taking him to the nursing home which was 50 meters away as a normal human conduct. There are many contradictions between the statements made by PW-1 and PW-2.
PW-2 was also seen along with PW-1. He was another eye witness. He was a duty constable. The trial court rightly doubted his presence as well. Once again, even this witness has not given any complaint. We are dealing with the deposition of a police officer who is expected to know his duty. While PW-2 did not make a complaint but went on to do his duty, PW-1 did not attend to his duty thereafter or informed the police station in which he was posted. Though, PW-2 has stated that Accused made an attempt to attack him by throwing one of the material objects, even the High Court has disbelieved that. The said material object was recovered from some other place as could be seen from the recovery memo, despite the fact that it was nobody's case that the Accused retrieved the same and kept it with them while being chased.
PW-25 is the doctor who is well known to PW-1. While PW-1 deposed that he did not actually accompany the deceased, PW-25 did make a statement that both the police and public admitted the deceased - On a reading of the evidence of PW-25, there was not found existence of dying declaration in it.
The defence also examined one witness. This witness is a Government doctor being an expert in the field of surgery. He had clearly deposed that it would be impossible for the deceased to be conscious after suffering injuries as mentioned in Exhibit P-38, which is intestines coming out. The trial court correctly considered this evidence.
Reasoning of the High Court - HELD THAT:- The dying declaration was put forth by the prosecution through the mouth of said three witnesses. As we find, that the evidence let in by them was found to not be trustworthy, there cannot be any dying declaration either in fact or in law. The High Court also did not consider the basis upon which the evidence of PWs 1, 2 and 25 could be accepted and as to how the various reasons given by the trial court are not acceptable especially when it did not consider the evidence of the other witnesses. It rendered a conviction on mere surmise, even though an inference can never be the basis of a conviction when the testimony of a witness is not believed on cogent reasoning - the alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic and even the evidence of PW-1 and PW-2 suggests that there were about 1000 persons. Except the evidence of PW-1 and PW-2, there was no other evidence relied upon by the prosecution.
The High Court did not undertake the exercise as mandated Under Section 378 read with Section 384 Code of Criminal Procedure in reversing the reasoned decision rendered by the trial court. Thus, the appeals are accordingly allowed.
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2021 (12) TMI 1451
Validity of Arbitral Award - disputes on the supplies made by the 3rd Respondent, the bill amount due was not paid immediately - It is submitted that only on the ground that the Appellant has not responded in the conciliation proceedings, straightaway the order was passed by the Council without giving proper opportunity - HELD THAT:- From a reading of Section 18(2) and 18(3) of the MSMED Act it is clear that the Council is obliged to conduct conciliation for which the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996 would apply, as if the conciliation was initiated under Part III of the said Act. Under Section 18(3), when conciliation fails and stands terminated, the dispute between the parties can be resolved by arbitration. The Council is empowered either to take up arbitration on its own or to refer the arbitration proceedings to any institution as specified in the said Section. It is open to the Council to arbitrate and pass an award, after following the procedure under the relevant provisions of the Arbitration and Conciliation Act, 1996, particularly Sections 20, 23, 24, 25.
There is a fundamental difference between conciliation and arbitration. In conciliation the conciliator assists the parties to arrive at an amicable settlement, in an impartial and independent manner. In arbitration, the Arbitral Tribunal/arbitrator adjudicates the disputes between the parties. The claim has to be proved before the arbitrator, if necessary, by adducing evidence, even though the Rules of the Code of Civil Procedure or the Indian Evidence Act may not apply. Unless otherwise agreed, oral hearings are to be held.
The order dated 06.08.2012 is a nullity and runs contrary not only to the provisions of MSMED Act but contrary to various mandatory provisions of Arbitration and Conciliation Act, 1996. The order dated 06.08.2012 is patently illegal. There is no arbitral award in the eye of law. It is true that under the scheme of the Arbitration and Conciliation Act, 1996 an arbitral award can only be questioned by way of application Under Section 34 of the Arbitration and Conciliation Act, 1996. At the same time when an order is passed without recourse to arbitration and in utter disregard to the provisions of Arbitration and Conciliation Act, 1996, Section 34 of the said Act will not apply.
The impugned judgment and order is set aside - this civil appeal is allowed.
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2021 (12) TMI 1450
Principles of natural justice - no opportunity of hearing was granted after the issuance of Show Cause Notice - appealable order - HELD THAT:- It is not deemed appropriate to non- suit the petitioner on the ground that there is an efficacious remedy of appeal, more so since, the order on merits are not set aside, but it is only directed that the Assessing Officer should pass a fresh order after affording an opportunity of hearing to the petitioner.
The Assessing Officer is directed to pass a fresh speaking order after hearing the petitioner in accordance with law. For this purpose, parties through counsel are directed to appear before the Assessing Officer on 30.12.2021 or on any other date when the Assessing Officer may require their presence - the petition is allowed and impugned order is set aside.
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2021 (12) TMI 1445
Seeking grant of anticipatory transit bail - offences punishable under Sections 66(C)/66(D) of the IT Act, 2000 which are contended to be bailable in terms of Section 77B of the IT Act, 2000 - HELD THAT:- Without any observations on the merits or demerits of the contentions that may be raised by the petitioners qua the grant of bail in relation to the allegations levelled in the FIR in question, taking into account the factum that the FIR No.435/2021, PS Model Town Panipat, Haryana apparently emanates from a matrimonial discord in relation to which the averments made in the petition indicate to the effect that there were mediation proceedings also pending and that the complainant and family members of the complainant are stated to be on interim protection till 04.12.2021 - it is considered appropriate that the applicants be not arrested till the date 06.12.2021 by which date they may move the requisite applications before the Court concerned subject to the conditions to the effect that they shall join the investigation of the case in relation to FIR No.435/2021, PS Model Town, Panipat, Haryana, shall keep their mobile phones on at all times and shall drop their PIN on the google map to ensure that their locations are available to the Investigating Officer.
The application is disposed of accordingly.
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2021 (12) TMI 1443
Levy of penalty under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 - issuance of memorandum of charges (charge memorandum) proposing to hold an inquiry against him - chargesheet or charge memorandum could be given ex-post facto approval or not - HELD THAT:- The main distinguishing feature between the case of the appellant and that decided in B.V. Gopinath [2013 (9) TMI 1219 - SUPREME COURT] is that in the facts of the latter judgment, the subject charge memorandum did not have the ex-post facto approval. Stand of the respondents is that there is no bar on giving ex-post facto approval by the Disciplinary Authority to a charge memorandum and so far as the present case is concerned, such approval cures the defect exposed in Gopinath’s case. On behalf of the appellant, the expression “non est” attributed to a charge memorandum lacking approval of the Disciplinary Authority has been emphasized to repel the argument of the respondent authorities.
The High Court sought to distinguish the case of B.V. Gopinath [2013 (9) TMI 1219 - SUPREME COURT] with the facts of the present case on the ground that in the case of the appellant, the Disciplinary Authority had not granted approval at any stage and in the present case, ex-post facto sanction of the charge memorandum or chargesheet was given when the departmental proceeding was pending. The High Court found such approach to be practical and pragmatic, having regard to the fact that the departmental proceeding had remained pending in the case of the appellant and evidences had been recorded. The High Court thus considered the fact that in the case of B.V. Gopinath, the proceeding stood concluded whereas in the appellant’s case, it was still running when ex-post facto approval was given. That was the point on which the ratio of B.V. Gopinath was distinguished by the High Court.
The absence of the expression “prior approval” in the aforesaid Rule would not have any impact so far as the present case is concerned as the same Rule has been construed by this Court in the case of B.V. Gopinath and it has been held that chargesheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of the law.
Whether there would be any difference in the position of law in this case vis-à-vis the case of B.V. Gopinath? - HELD THAT:- In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum - What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage.
Considering the fact that the proceeding against the appellant relates to an incident which is alleged to have taken place in the year 1998 and the proceeding was initiated in the year 2002, we direct that in the event the department wants to continue with the matter, and on producing the material the Disciplinary Authority is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued not beyond a period of two months, and thereafter the proceeding shall take its own course.
The appeal is allowed.
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2021 (12) TMI 1442
Validity of grant of Bail - Siphoning of funds by respondent No.2 promoter, before they ceased to be in control over the complainant-company - HELD THAT:- List before a Bench in which one of us (Hon’ble Mr. Justice Sanjay Kishan Kaul) is not a Member.
Liberty is granted to mention to Hon’ble the Chief Justice of India in view of the urgency expressed.
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2021 (12) TMI 1439
Cancellation of allotment of Sites allotted in favour of Respondent Nos. 5 and 6 respectively in the layout known as Binnamangala 2nd Stage - enhancement of compensation pursuant to which Additional Land Acquisition Officer (Addl. LAO) referred the matter to the Civil Court Under Section 18 of the Land Acquisition Act, 1894 - HELD THAT:- The documents produced by the BDA would clearly disclose that the entire extent of 5 acres 9 guntas of land including 12 guntas of kharab-B land was notified for acquisition. M. Krishna Reddy, the father of the Appellants, claimed to be the owner of 1 acre 26 guntas of lands in the said survey number and it was further contended that 1 acre and 18 guntas have been acquired and 8 guntas was left out from the acquisition - The appeal filed against the said judgment of the trial court was also dismissed by the High Court. The Appellants have not disclosed the filing of the suit, its dismissal by the Civil Court and the confirmation of the said judgment by the High Court in the writ petition. It is clear that the Appellants have suppressed these material facts which are relevant for deciding the question involved in the writ petitions. Thus, the Appellants have not come to the court with clean hands.
It is well-settled that the jurisdiction exercised by the High Court Under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and it is imperative that the Petitioner approaching the writ court must come with clean hands and put forward all facts before the Court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.
This Court in PRESTIGE LIGHTS LTD. VERSUS STATE BANK OF INDIA [2007 (8) TMI 446 - SUPREME COURT] has held that a prerogative remedy is not available as a matter of course. In exercising extraordinary power, a writ court would indeed bear in mind the conduct of the party which is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter.
In UDYAMI EVAM KHADI GRAMODYOG WELFARE SANSTHA & ANR VERSUS STATE OF U.P. AND ORS [2007 (12) TMI 453 - SUPREME COURT], this Court has reiterated that the writ remedy is an equitable one and a person approaching a superior court must come with a pair of clean hands. Such person should not suppress any material fact but also should not take recourse to legal proceedings over and over again which amounts to abuse of the process of law.
In the instant case, since the Appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the Appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief.
Survey No. 13 measures 5 acres 9 guntas, out of which 12 guntas were kharab-B land. Notification in respect of the entire 5 acres 9 guntas had been issued and possession of the land had been taken long back. The contention of the Appellants is that their father, M. Krishna Reddy, was the owner of 1 acre 26 guntas of land in Survey Nos. 13/2 and 13/4. According to them, 08 guntas of land has not been acquired and compensation has not been paid in respect of this land. Records produced by the BDA would disclose that 08 guntas of land is kharab-B land - there is no question of payment of compensation in respect of this land, though, the same was included in the preliminary and final notification. The final notification was issued as early as in the year 1967. The Appellants have claimed enhanced compensation also for 1 acre 18 guntas of land and they have raised this issue at a highly belated stage after lapse of about 34 years.
This finding of the High Court has attained finality and the writ court cannot sit in an appeal over the judgment passed by the High Court in the appeal. The conclusions reached by the court in the appeal are binding on the Appellants.
There are no merit in these appeals and the same are accordingly dismissed.
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2021 (12) TMI 1431
Seeking Restitution of Conjugal Rights against the appellant - primary argument of the appellant was that the accumulated evidence supports the finding that the Respondent was/is suffering from “F-20– Hebephrenia” - disease of respondent concealed at the time of marriage - determination of truth - Section 9 of the Hindu Marriage Act - HELD THAT:- The outright refusal of the respondent to undergo any medical examination, prevents the court arriving at the truth. It has been held by the Supreme Court in Kollam Chandra Sekhar v. Kollam Padma Latha [[2013 (9) TMI 1298 - SUPREME COURT]] by relying on the testimony of a doctor that Schizophrenia “is a treatable, manageable disease, which can be put on a par with hypertension and diabetes.” However, the same requires determination by a doctor, and in Dharam Pal [[2003 (3) TMI 739 - SUPREME COURT]] the court has observed that "but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the Court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified Psychiatrist.” Therefore, in such circumstance determination of truth is an important step for us to enable making of a fair decision.
Marriage is not made of only happy memories and good times, and two people in a marriage have to face challenges and weather the storm together. It is not easy to live with a partner who has mental health issues, and such ailments come with their own challenges for the person facing the problem, and even more so for the spouse. There needs to be an understanding of the problems in a marriage, and communication between the partners– especially when one of the two partners in a marriage is facing challenges of their own. Treatment of any mental ailment requires acceptance of the same, not only by the family members but, most importantly, by the person suffering therefrom.
A combined reading of the evidence as well as the admission of the respondent, even though, may not conclusively prove that the respondent was suffering from Schizophrenia/Hebephrenia- F-20 prior to her marriage, at the time of her marriage, and; subsequent to her marriage, but definitely raises a serious doubt about the mental health of the respondent, and points to the possibility of the appellant‟s allegations in that regard being true.
The Family Court fell in error in rejecting the appellant‟s application. The approach of the Family Court – that the appellant had to fend for himself, and he could not seek a direction from the Court for medical examination of the respondent was erroneous. It is not that this direction was sought by the appellant without any foundation or basis. The appellant had raised a plea that the respondent was suffering from Schizophrenia from day one. The appellant had shown the respondent to several specialists, and the medications prescribed show that they were relevant for treatment of Schizophrenia. The appellant also produced the medical doctors/ specialists and exhibited their prescriptions. The parties lived together for hardly any period, as the respondent was taken away by her father after about nine weeks of marriage from the matrimonial home. The evidence with regard to the respondent‟s medical condition – which related to her mental health, could possibly not have been garnered by the appellant without co-operation of the respondent. Only upon medical examination of the respondent, it could be established, with definiteness whether, or not, she is suffering from Schizophrenia, even though, there were pointers in that direction.
Pertinently, the Respondent could not establish any reason as to why, so early in the marriage, the parties separated, when according to the respondent, there were no serious issues in the relationship. The fact that she sought Restitution of Conjugal Rights itself shows that so far as she was concerned, she had no serious complaints with the appellant; or the relationship - the Family Court was duty bound to direct the medical examination of the respondent. The appellant could not have been left to gather evidence of the respondent‟s mental condition on his own.
The fact that the parties could not live together beyond nine weeks itself shows that the mental disorder suffered by the respondent is of a kind, and to such an extent as to be unfit for marriage and the procreation of children. It is not the case of the respondent that either of the conditions enumerated in Section 12(2)(a)(i), or (ii) exists in the present case, which would have debarred the appellant from seeking annulment of marriage on the ground contained in Section 12(1)(b) of the Hindu Marriage Act. That is not the defence set up by her, or established by her. The failure on the part of the respondent to disclose her mental disorder before her marriage with the appellant – as alleged by him, constituted a fraud perpetrated upon the appellant - the marriage between the appellant and the respondent is annulled on the ground contained in Section 12(1)(b) of the Hindu Marriage Act.
Appeal allowed.
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