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Indian Laws - High Court - Case Laws
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2012 (4) TMI 821
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... ... ..... the money has gone out of the public treasuries and reached the hands of any one of the persons involved. Hence, so far as the offences under Section 13(1)(c) and Section 13(1)(d) are concerned the place where the offences were committed could easily be identified as the place where the treasury concerned was situated. It is an undisputed fact that in all these cases the treasuries were situated within the territories of Jharkhand State. 7. It would be thus evident that in the present case, the misappropriation, embezzlement and the offence under Section 13 PC Act were committed in the State of Uttar Pradesh. The offence having been committed in the State of Uttar Pradesh, in terms of Section 4(2) of the PC Act, the Special Judge, Gaziabad at Uttar Pradesh is competent to try the same and the learned Special Judge, Delhi has committed no error in dismissing the application of the Petitioner for anticipatory bail for want of territorial jurisdiction. 8. Petition is dismissed.
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2012 (4) TMI 814
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... ... ..... r was to remain unaffected by the failure of borrower. It further provides that borrower and guarantor are jointly and severally liable under Section 128 of the Indian Contract Act. 10. Where the guarantee is a continuous one, acknowledgment of debt made by the principal debtor is binding on the guarantor. Therefore, considering the terms in the agreement of guarantee (Ex. P.9) in the light of Section 128 of the Act of 1872, in my considered opinion, the acknowledgment of debt by the borrowers will be binding upon the guarantor, as such, the suit is also not barred by limitation against respondent No. 6. 11. In the result, the appeal is allowed. The judgment and decree impugned is set aside. Instead, the appellant/plaintiff-Bank is granted a decree of Rs. 27,086.14 ps. along with interest @ 6% per annum from the date of suit on the principal sum adjudged till its recovery. Cost of the suit as well as the appeal shall be borne by the respondents. A decree be drawn accordingly.
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2012 (4) TMI 810
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... ... ..... the respondent/accused as regards her signatures on the cheque. Further, admittedly, the Magistrate had also compared the signature of the accused as appearing on the cheque with her admitted signatures as per his power under section 73 of the Evidence Act and did not find variation in the signatures. The plea regarding the cheques not bearing her signature was taken by the respondent/accused only at the stage of defence evidence. 11. It is also noted that this Court on 19.03.2011 had directed the MM to dispose of the case expeditiously and vide order dated 10.08.2011 a specific direction was given for disposal of the case within a period of 8 months. From the above discussion I am of the view that since there was no infirmity or illegality in the order of the MM dated 11.07.2011, the learned ASJ erred in entertaining the revision petition and setting aside the said order of the MM. In view of all this the impugned order is set aside. The petition is disposed of accordingly.
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2012 (4) TMI 808
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... ... ..... ption to answer the same, is for the reasons given hereinbefore, misplaced and mistaken. 24. The Trial Judge is the best Judge to decide the relevancy of the questions put up by the defense counsel during cross-examination of a witness and this Court cannot in its extraordinary powers under Article 226 or Article 227 of the Constitution or inherent powers under Section 482 Cr.P.C. interfere in exercise of such discretion by the Trial Judge unless the same was manifestly illegal or perverse or has resulted in miscarriage of justice. 25. In view of the above observations, I am satisfied that the order of the learned Special Judge does not suffer from any illegality or infirmity and I find no infirmity in the order of the Ld. Special Judge in disallowing certain questions put up by the petitioner's counsel during cross-examination of PW12. 26. Petition stands dismissed. A copy of this order, preferably soft copy, be circulated amongst all the Judges of subordinate judiciary.
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2012 (4) TMI 799
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... ... ..... and well aware of the issue of the dishonoured cheques which can be construed to show that they were responsible for the conduct of the business of the accused company at the relevant time. 17. As held in the case of Rajesh Agarwal v. State & Anr 171 (Supra)and Rallis India Ltd (Supra) , this court ought not to interfere at the summoning stage in a case under 138 of the Act. However, this court may interfere under its inherent powers under Section 482 CrPC, if there is any apparent gross irregularity in the order of the Ld. MM which has caused miscarriage of justice or has caused undue harassment to the person. This power is however used cautiously and sparingly. 18. In view of the above observations, the summoning order qua petitioner no. 1 is quashed. Petitioner no. 2 and 3 shall be at liberty to lead their defence evidence before the Ld. MM and raise all such contentions there. 19. With the above observations, the petition is party allowed and disposed of accordingly.
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2012 (4) TMI 797
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... ... ..... ry of accused in the absence of the Company as a party, there is no impediment to prosecute the accused in the absence of the Company. 22. The cheque-Ex. P1 has been issued in favour of the complainant by name Ranga Karkera. It is not in the name of either the proprietorship concern or a firm. The evidence reveals that the complainant is doing the business in his own capacity and though the records disclose that YFT is either a partnership firm or a proprietorship concern, as the cheque has been issued in the name of the complainant and it is admitted by the accused that the complainant is doing business in his personal capacity, Hence, I do not find any impediment to hold the complaint is maintainable. So, in view of the material facts and the law laid down, this Court is of the view that the conviction ordered by the Courts below and the sentence has to be upheld. In that view of the matter, I proceed to pass the following ORDER The revision petition is dismissed. No costs.
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2012 (4) TMI 794
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... ... ..... . That would mean that when a petition is filed under Article 226/227 of the Constitution of India, orders that may be passed therein may have much wider ramifications and reach whereof may not just be confined to territory of the State. When Rule 315(h) of the Rajasthan High Court Rules has required the criminal writ petitions to be registered separately, there is no reason that the writ petitions filed by the petitioner should not be registered as criminal writ petitions, particularly when Rule 375 refers to the civil writ petitions of the other kind presented before this Court. The Registry therefore on its own could not have registered these writ petition as criminal misc. petitions under Section 482 Cr.P.C. when the petitioner presented them as criminal writ petitions. The objection in this behalf raised by the registry is overruled. The registry is directed to register these petitions separately as S.B. Criminal Writ Petitions and list them before the appropriate bench.
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2012 (4) TMI 788
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... ... ..... er, there cannot be any conversion of the subject premises from leasehold to freehold and therefore substitution of the Lessees of commercial plots like the instant one, clearly attracts the imposition of unearned increase, in view of a Division Bench decision of this Court in Indian Shaving Products (Supra). The single bench decision in Kiran Kohli (Supra) relied upon by the petitioners is distinguishable on facts and is not applicable to the instant matter, as it does not deal with the Instructions (Annexure P-23), which squarely governs the dispute raised herein. 11. Logically speaking, Respondent’s right to levy unearned increase cannot be defeated by first effecting de-merger and then to further assign, transfer etc. without previous consent of the respondent/lessor. Consequentially, impugned demand (Annexure P-17) and the Notice (Annexure P-20) are held to be valid and this writ petition is dismissed with costs of ₹ 50,000/, while vacating the interim order.
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2012 (4) TMI 786
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... ... ..... ince right to file a suit or proceedings stood extinguished, the SARFAESI Act would not revive this extinguished claim. Position would have been different if the bank had filed mortgage suit and such a suit was pending. In Ivee Injectaa Ltd. (supra), mortgage suit has already been filed and therefore, claim for enforcing mortgage rights was subsisting as it was pending adjudication. If the period of 12 years had not expired under Article 62 in the Schedule to the Limitation Act and there was still time to file the proceedings of mortgage suit, even that would have saved the right of the Bank to enforce the provision of SARFAESI. But even that action has become time barred. In the facts of this case, we hold that the claim is barred under Section 36 of SARFAESI Act and therefore, it was not open to the bank to proceed under this Act. We, thus, allow this appeal and quash the impugned notice under Section 13(2) and 13(4) of SARFAESI Act issued by the bank. No order as to costs.
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2012 (4) TMI 785
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... ... ..... see and because of the Act of 2003, the petitioners' status has not changed to assessee from non-assessee. (VII) Section-5 of the Jharkhand Electricity Duty(Amendment)Act, 2011 amending Section 4 of the Act of 1948 is declared to be arbitrary as it gives power to the State Government to choose and pick up either of seller or consumer of the electricity for payment of electricity duty and Section 5 of the Act of 2011 amending Section 4 of the Act of 1948 is wholly unworkable and may create chaotic situation, made against the public interest, therefore, declared to be ultravires and illegal. 64. The petitioners are not liable to pay surcharge to the Damodar Valley corporation. Challenge to the rest of the provisions of the Act of 2011 is left open. The writ petitions are allowed accordingly, in terms of the points mentioned above. However, none of the petitioners, if has paid electricity duty to the State, shall be entitled to recover it from the State. No order as to cost.
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2012 (4) TMI 776
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... ... ..... re 'abated' at the end of that period. No application under Order XXII Rule 9 to set aside the abatement was filed. In any event, after the objections were rejected and the Award, with a slight modification as regards interest, was made rule of the court on 10th May 2010, the suit itself ceased. Even when the suit was pending, unless the abatement vis-a-vis GEC Inc was set aside, no application by its successor-in-interest GE Canada under Order XXII Rule 10 CPC could have been entertained. 40. Neither applicant has any explanation to offer for their abject failure, over several years, to bring to the notice of the Tribunal, and later the court, the fundamental changes in the constitution of the original parties to the contract. It is not possible to condone such a serious lapse and overlook the irreversible legal consequences that have resulted. For the aforesaid reasons, both applications are dismissed but, in the circumstances of the case, with no order as to costs.
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2012 (4) TMI 775
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... ... ..... ge recorded took time, what has to be seen is the time of filing of the rectification proceeding which is in the year 2005. If the plaintiffs had in the year 2005 asserted upon the registered trade mark, then as per the observations of the Division Bench in order to invoke Section 124, the defendant ought to have approached this Court first by applying for the prima-facie satisfaction, which defendant did not prefer before approaching IPAB. Accordingly, the defendant's rectification and circumstances therein are squarely covered within the ambit of judgment of Division Bench and learned Single Judge and are no different from the ones which the learned Single Judge and Division Bench was earlier concerned with. The other contentions raised by the learned counsel for the applicant are equally unmeritorious and the same are rejected. Resultantly, the application is dismissed with the cost of ₹ 5,000/-. CS(OS) No. 1421/2005 List before the Joint Registrar on 29.05.2012.
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2012 (4) TMI 759
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... ... ..... on from the Income Tax Department. The petitioner has brought on record the letter dated 5.9.2011 of the Housing Development Finance Corporation, by which respondent no. 5 was informed that the Corporation has received a letter dated 24.8.2011 from the Tax Recovery Officer, Government of India. The Corporation has written to respondent no. 5 to proceed with the cancellation of allotment of flat. We, by order of the date passed in Civil Misc. Writ Petition (Tax) No. 1767 of 2011 (Jitendra Kumar Shaw alias Aditya Kumar v. Union of India & others), have already quashed the notice issued by the Tax Recovery Officer including the subsequent notices, summons and all consequential action. The ends of justice will be served if the petitioner is permitted to submit a detailed representation before respondent no. 4, who may look into the grievance of the petitioner and shall take appropriate action in accordance with law. Order accordingly. The writ petition is disposed of finally.
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2012 (4) TMI 738
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... ... ..... ) For redetermination of the seniority of Income Tax Inspectors, the respondent No. 3 shall circulate a tentative seniority list giving opportunity to file objection by affected persons including the petitioner and respondent Nos. 4 to 13. The exercise of redetermination of the seniority shall be completed within a period of four months from the date of filing of a certified copy of this judgment before the respondent No. 3. (5) The respondent Nos. 3 and 4 shall take all consequential actions as per re-determination of seniority in accordance with law. (B) Writ Petition No. 56072/2010 is allowed. The order dated 27.8.2010, of the Tribunal is partly set-aside insofar as it dismisses the O.A. No. 1084/ 2010. In view of the order passed in Writ Petition No. 23672/2006, no direction needs to be issued to the Tribunal to proceed to decide O.A. No. 1084 of 2010 afresh. The O.A. No. 1084/ 2010 having become infructuous is disposed of accordingly. Parties shall bear their own costs.
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2012 (4) TMI 737
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... ... ..... r for decision of the Petition on merits. 11. Thus, in conclusion we are not in agreement with the learned single Judge that the present arbitration Petition needs to be automatically allowed because the award of the arbitrator was passed after the period stipulated in the agreement had come to an end without looking into any other aspect. Having considered the facts narrated above, we find that the conduct of the respondent is such that a clear inference can be drawn that it had waived the time limit stipulated in the agreement and the objection regarding the jurisdiction of the arbitrator. In the result, the appeal is allowed. The order passed by the learned single Judge dated January 13, 2012 in Arbitration Petition No. 430 of 2008 is set aside and the matter is remanded back to the learned single Judge for consideration of the Petition on merits. We make it clear that we have not observed anything on the merits of the case of both the parties in the Arbitration Petition.
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2012 (4) TMI 735
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... ... ..... case has drawn attention of this court to a number of judgments 'M/s L.T. Overseas Ltd. v. M/s Guruji Trading Co. and Anr. CS (OS) No. 2711/1999; and Relaxo Rubber Limited and Anr. v. Selection Footwear and Anr., 1999 PTC 578. Counsel has also placed reliance on Time Incorporated v. Lokesh Srivastavaand Anr., 2005 (30) PTC 3 (Del) where apart from compensatory damages of ₹ 5 lakhs, punitive damages have also been awarded. Justice R.C. Chopra, has set out in Time Incorporated's case (supra) that punitive damages are founded on the philosophy of corrective justice. 37. For the reasons stated above, the plaintiff has made out a case for grant of decree as prayed in the plaint. Accordingly, the order dated 24.12.2010 is confirmed and the suit is decreed in favour of the plaintiff and against the defendant in terms of para 33 (i), (ii), (iii) & (v) of the plaint with costs and damages to the tune of ₹ 5.00 lakhs. Let a decree sheet be drawn up accordingly.
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2012 (4) TMI 726
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... ... ..... the property. In C.R.P.No. 1444 of 2011, the plea of the petitioner prima facie is well founded. The land in survey No. 266 of Manikonda lands was deleted and was included in the Nacharam Revenue Records correlated to survey Nos. 27/1, 27/2, 27/3 and 27/4. This was not adverted to by the Wakf Tribunal while passing a general order of injunction. As there is no serious dispute about this, we are of the considered opinion that the issue can be finally decided by the Wakf Tribunal in the suit. The petitioner, who entered into the development agreement with the land owners, may have to approach the Wakf Tribunal for necessary clarification in this regard, with reference to Section 52 of the Transfer of Property Act, 1882. In the result, for the above reasons, C.R.P.Nos. 4958, 5028 and 5314 of 2007 and 521, 1384 and 2304 of 2011 shall stand dismissed. C.R.P.No. 1444 of 2011 shall stand disposed of, subject to the observations made hereinabove. There shall be no order as to costs.
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2012 (4) TMI 723
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... ... ..... possession notice under Section 13(4), order of the Chief Metropolitan Magistrate/District Magistrate directing delivery of possession under Section 14, the auction/sale notice issued under Rules 8(1) and 8(6) of the Rules and confirmation of sale certificate. The cases on hand do not present any special circumstances or background to deviate from the dicta on exhaustion of alternative remedy. We therefore leave all questions open to be decided by the DRT/ DRAT, as the case may be, as and when the petitioners approached. We also observe that as the petitioners are pursuing their remedies, ex debito justitiae, the DRT/ DRAT may entertain the applications/appeals and decide them on merits, provided the measures initiated under Section 13(4) of the SARFAESI Act are not completed i.e., auction/sale is not completed, as yet. ( 28. ) In the result, for the above reasons, the writ petitions, as also all the miscellaneous applications shall stand dismissed with no order as to costs.
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2012 (4) TMI 717
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... ... ..... le of law enunciated in both M.V. Shankar Bhat (supra) and Mayawanti vs Kaushalya Devi (supra) is well taken; it is the applicability to the facts, which is questioned. Undoubtedly, the first case pertained to whether or not parties had arrived at a concluded contract, while the second case laid down the principle that specific performance can be sought of only a valid contract. We have come to a conclusion, though prima facie, that the MOU is a concluded legally enforceable agreement. The test evolved in these cases is fulfilled. In so far as the last judgment is concerned, which is a judgment of this court, in fact supports the case of the respondent. 10. Therefore, for the reasons given above, we are of the view that the appeal deserves to be dismissed with cost. It is ordered accordingly. The appellant shall pay a cost of ₹ 25,000/- to the respondent. 11. Needless to state, the observations made hereinabove will have no impact on the final adjudication in the case.
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2012 (4) TMI 716
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... ... ..... the loan taken by him but he utterly failed to substantiate the same by adducing legal and cogent evidence therefor, in the absence whereof, a registered sale-deed cannot be termed as nominal transaction. On the other hand, plaintiff had successfully proved his title by proving registered sale deed executed by appellant in his favour. When the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence, unless the defendant proves circumstances, showing the sale deed as fictitious one or colourable device, which cloaked something else, the plaintiff cannot be nonsuited. ( 10. ) For the reasons mentioned hereinabove, I do not find any infirmity in the approach of first Appellate Court in decreeing the plaintiff's suit. The substantial question of law formulated by this Court is answered accordingly in favour of respondent No.l/ plaintiff. In the result, the appeal fails and is dismissed. No order as to costs.
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