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2018 (5) TMI 2173
Seeking a direction in favour of the applicant for payment of dues under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 - priority of dues against the statutory as well non-statutory secured and non-secured debts including on assets subject to mortgage or pledge - HELD THAT:- In the present case, as already noted by this court, the OL invited claims on 23.01.2004. Thereafter the claims were processed and payments were released in favour of those whose claims were accepted by order dated 27.09.2005. Reference may be had to the said order dated 27.09.2005. The said order noted that there are 770 workmen who have lodged their claims before the OL. Total of these claims add up to Rs.5.04 crores. The court accepted that the claims of the worker would to the tune of Rs.3.40 crores. There were claims of three secured creditors, namely, Canara Bank, HFC and Essenda Finanze Pvt. Ltd. which were for Rs.374 lacs, Rs.120 lacs and Rs.4 lacs. Noting that the OL has Rs.3.86 crores, the court ordered distribution of the fund to the secured creditors and workers on pari passu basis in terms of Sections 529 and 529A of the Act.
In the rejoinder that was filed by the applicant to the reply of the OL, the applicant has attached a copy of a communication dated 18.06.2004 which was allegedly sent to the OL. Unfortunately this document has been filed alongwith the rejoinder and the OL has not been able to respond to the same. There is also nothing to show that this document was served on the OL. It is further stated in the letter that the dues are likely to the tune of Rs.50 lacs, which are pending and are not deposited by the respondent company. As already noted, this letter was not in response to claims invited by the OL. Even if such a letter had been received by the OL, it cannot be a substitute for the statutory procedure which exist for inviting claims from the creditors of the respondent company.
A liquidator has to give notice inviting creditors, who have not proved their debts. As per Rule 151, the affidavit proving a debt shall contain or refer to a statement of account and shall be in Form 66.
The applicant is only entitled to the amount that is now left with the OL, namely, a sum of Rs. 5,76,162/- or about. The applicant cannot be permitted to disturb the position/steps which have been taken by this court way back in 2005. The applicant has merrily taken five years to file its first application attempting to prove its dues. Thereafter, the applicant had withdrawn the said application and has now filed the present application in 2015. In view of the settled legal position, the applicant would be entitled to only the amount now remaining with the OL.
Application allowed.
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2018 (5) TMI 2172
Seeking grant of Regular Bail - misappropriation of money for illegal monetary gains after demonetization - Conspiracy with Ashish Kumar, Bank Manager of Kotak Mahindra Bank, one Chartered Accountant and one mediator who used to bring money to the bank to earn huge profits by converting black money in the form of old demonetized currency into new currency notes - HELD THAT:- From the statements of these two witnesses of the prosecution, it is evident that 10% commission of Yogesh Mittal was deposited in the various firms from where approximately INR 8 crores was transferred to the two firms of petitioner namely Shrinivas Enterprises and Jai Jinendra Sales Corporation over to the firms/companies of Govind Babu and Naveen Somani in discharge of the liability of Yogesh Mittal. Petitioner, if at all is a beneficiary for a sum of INR 2 lakhs the petitioner has no role in the deposit of cash in the accounts of Raj Kumar Goel or Yogesh Mittal from which demand drafts were made which were recovered from Kamal Jain, CA of Rohit Tandon.
Evidence is documentary in nature and the trial is likely to take some time. Hence, this Court deems it fit to grant bail to the petitioner. It is, therefore, directed that the petitioner be released on bail on his furnishing a personal bond in the sum of INR 1 lakhs with one surety of the like amount to the satisfaction of the learned Trial Court/CMM further subject to the condition that the petitioner will not leave the country without prior permission of the Court concerned and in case of change of residential address the same will be intimated to the Court concerned.
Petition disposed off.
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2018 (5) TMI 2160
Levy of Entertainment Tax - carriage of passengers on aerial ropeway to Naina Deviji Temple under the Himachal Pradesh Entertainment Duty Act, 1968, more particularly, under the amendment, which was carried vide H.P. Entertainments Duty (Second Amendment) Act, 1999 (Act No. 3 of 2000) - whether the State Government has the competence to issue notification imposing entertainment tax on ropeway? - invocation of principle of ejusdem generis.
HELD THAT:- The aerial ropeway of the petitioner is providing entertainment and, therefore, the only question that remains for consideration is whether in the absence of any provision in the H.P. Aerial Ropeway Act, the State by amending the Entertainments Duty Act can recover the same.
As observed by the Hon'ble Supreme Court, only Entries 45 to 66 of the Seventh Schedule are those that can be taxed. The Aerial ropeway Act was enacted to authorize, facilitate and regulate the construction and working of aerial ropeways in Himachal Pradesh without there being any provision of levying tax of the instant kind, whereas on the other hand, the Entertainments Duty Act was enacted to provide for levy on entertainment duty in respect of admission to public entertainments.
The mere fact that no amendment was made in the Aerial Ropeway Act and the amendment was made in the Entertainments Duty Act is inconsequential as the entertainment duty in respect to admission to public entertainment could only be taxed under the Entertainments Duty Act, as such, we find it expressly difficult to agree with the view of the learned Single Judge of High Court of Uttrakhand, who only on the basis that no amendment had been carried in the United Provinces Aerial Act, 1922 had quashed the amendment.
It is more than settled that as a general rule when two different words are used by a statute, prima facie one has to construe different words as carrying different meanings. Even though at sometime two different words are used in one and the same statute to convey the same but i.e. exception rather than the rule. The word "entertainment" has to be understood in the contest that was intended by the legislature with respect to the Entertainments Duty Act, keeping in mind the purpose for which the statute was enacted - there is no provision in the H.P. Aerial Ropeway Act to levy tax or duty as this Act only authorizes to facilitate and regulate the construction and working of aerial ropeways in Himachal Pradesh, whereas on the other hand, Entertainments Duty Act has been specially enacted by the State under Entry 62 of List-II for imposition of taxes and duties on entertainments.
The aerial ropeway is providing entertainment and, therefore, in such circumstances, the doctrine of ejusdem generis cannot be pressed into service to defeat the dominant statutory purpose of the entertainment tax. Merely because it is the aerial ropeway, it does not mean that it can only be taxed under the Aerial Ropeway Act and not under the Entertainments Duty Act.
Even otherwise, the definition of "entertainment" as originally defined and even thereafter it was amended would show that the same deals with all different aspects of entertainments like exhibition, performance, amusement, game, sport or race or lastly aerial ropeway. Thus, once each one of the words carries a separate and distinct meaning then obviously, the principle of ejusdem generis cannot be invoked.
Petition dismissed.
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2018 (5) TMI 2157
Issuance of process under Section 204 Cr.P.C. and subsequent proceedings - accused persons residing at a place beyond the territorial jurisdiction of the learned Magistrate - nature of enquiry in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - Consequence of non-compliance with such requirement - Objection may be raised at the initial stage only or after much deliberation as well? - HELD THAT:- It is long standing settled principles of law relating to the mode of exercising a statutory power by a Court when such power is conferred for the first time upon it. Lord Jessel M.R. observed in Taylor v. Taylor, that when a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed it means that no other mode is to be adopted.
Under the provisions of Section 190 Cr.P.C. the competent Magistrate may take cognizance of any offence, subject to the provisions of Chapter XIV Cr.P.C., any Chief Judicial Magistrate is empowered under Section 192 Cr.P.C. to transfer the case for inquiry after taking cognizance to a competent Magistrate subordinate to him. Needless to point out that under the provisions of sub-section (2) of Section 12 Cr.P.C., an Additional Chief Judicial Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under Cr.P.C. or under any other law for the time being in force as the High Court may direct and the transferee Magistrate is under obligation to examine the complaint and his witnesses and only thereafter to issue the process - According to the settled principles of law, the amendment of sub-section (1) of Section 202 Cr.P.C. by virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005, is aimed to prevent innocent persons, who are residing outside the territorial jurisdiction of the Learned Magistrate concerned, from harassment by unscrupulous persons from false complaints. The use of expression "shall", looking to the intention of the legislature to the context, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.
Nature of enquiry to be undertaken by the learned Magistrate under sub-section (1) of Section 202 Cr.P.C. in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - HELD THAT:- Keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202 Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an inquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer.
Whether non-compliance of such enquiry in terms of Sub-Section (1) of Section 202 (as amended) under Section 19 of the Criminal Procedure (Amendment) Act, 2005 will invalidate or vitiate the order of process so issued? - HELD THAT:- It has already been settled that when an order of issuing summon is issued by a learned Magistrate against an accused who is residing at a place beyond the area in which he exercises his jurisdiction without conducting an enquiry under Section 202 Cr.P.C., the matter is required to be remitted to the learned Magistrate concerned for passing fresh orders uninfluenced by the prima facie conclusion reached by the Appellate Court.
Whether objections with regard to non-compliance of the amended provisions of sub-section (1) of Section 202 Cr.P.C. as incorporated by virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005 may be raised at the initial stage only or after much deliberation as well? - HELD THAT:- The satisfaction of the learned Magistrate concerned that there is a sufficient ground for proceeding with the complaint either by way of examination of complainant and the witnesses or by the enquiry contemplated under Section 202 Cr.P.C., is a condition precedent for issuing process under Section 204 Cr.P.C. It is a preliminary stage and the stage of hearing the accused would only arise at a subsequent stage provided for in the later provisions of the Cr.P.C., or in other words, up to the stage of complying with the provisions of Section 204 Cr.P.C. the accused has no role to play. The question of making an application by the accused before the Learned Magistrate concerned for dismissal of the complaint under Section 203 Cr.P.C. or a reconsideration of the material available on record is impermissible on receipt of summons approaching the Court for the reason that by then Section 203 is over and the learned Magistrate concerned has proceeded further to Section 204 Cr.P.C.
There are no hesitation to arrive at a conclusion that the first occasion for an aggrieved accused to raise objection for issuing summon against him comes after the provision of Section 204 is invoked. Since Cr.P.C. does not contemplate a review of an order passed by the learned Magistrate concerned taking cognizance of an offence issuing process without there being any allegation against accused or any material implicating the accused or any contravention of the provisions of Sections 200 and 202, the remedy lies in invoking Section 482 Cr.P.C.
The scope of application of the amended provision of Sub-Section (1) of Section 202 Cr.P.C. as enacted under Section 19 of the Criminal Procedure (Amendment) Act, 2005, in case of offences punishable under Sections 138/141 of the Negotiable Instruments Act, 1881 - HELD THAT:- Taking into consideration the non-obstante clauses used in Sections 142, 142 (a), 143, 144, 145 and 147 of the said Act, 1881, as also finding that the scheme framed by the legislature in initiating a proceeding under Section 138 is different from that of the Cr.P.C., we arrive at an irresistible conclusion that the legislature has taken care of the interest of the complainant and the accused by exempting the complainant from facing the general rigors of Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. as amended under Section 19 of the Criminal Procedure (Amendment) Act, 2005 and protecting the accused by insisting upon the complainant to produce best possible stage at the pre-summon stage.
Thus, in cases falling under Section 138 read with Section 141 of the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.
Application disposed off.
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2018 (5) TMI 2155
Suspension of petitioner - accepting illegal gratification - after the period of ninety day, petitioner’s suspension was not reviewed - HELD THAT:- In the facts and circumstances of this case, it is deemed appropriate to dispose of this petition with direction to first respondent to pass a speaking order on petitioner’s Representation of 28th March, 2018 (Annexure P-8 colly.) within a period of two weeks from today and to convey its fate to petitioner within a week thereafter, so that petitioner may avail of the remedies as available in law, if need be.
Petition disposed off.
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2018 (5) TMI 2149
Suit seeking declaration, partition, possession and injunction dismissed - dismissal on the ground that the same was barred by limitation - suit have not been properly appreciated and examined - principles of natural justice - HELD THAT:- The first and foremost argument of the learned counsel of the appellant is that the learned Single Judge ought to have followed the mandate of Section 26 of CPC and issued the summons to the respondents. By not doing so and dismissing the suit at the initial stage, he has acted in violation of the provisions of CPC and, therefore, the findings need to be set aside on this ground alone - There is no doubt that Section 26 of CPC requires that when a suit has been instituted on the presentation of a plaint, the summons be issued to the respondents in terms of Section 27 of CPC. The mandate of Section 26 of CPC is to issue summon when a plaint is presented, supported by an affidavit.
The stage for issuance of summons to the opposite party arises only when the Court is satisfied that the suit is 'duly instituted. A suit which is barred by limitation, or does not disclose any cause of action, i.e. if it is barred by provisions of Order VII Rule 11 of CPC or any other law cannot be said to be a suit which is duly instituted and Courts are not bound to issue summons in such cases and are within their power to dismiss the same in limine. The contention, therefore, that the learned Single Judge could not have dismissed the suit at the initial stage, has no merit - There is no dispute that while arriving at the conclusion under Order VII Rule 11 of CPC, the Court has to rely solely on the averments in the plaint and also the documents relied upon by the petitioner in support of his/her contentions in the plaint. It is a well settled principle of law.
The claim of the appellant that the period of limitation is to be reckoned from the date of cause of action i.e. when there arose "a need to challenge" the instrument, has no force in it. The period of limitation to challenge the instrument once start running does not stop. The plaint is bereft of any facts, showing as to why it should be reckoned from the date of alleged cause of action and not from the date of execution of the instrument.
There are no illegality or perversity in the impugned order. The impugned order needs no interference - appeal dismissed.
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2018 (5) TMI 2140
Monetary relief under Section 20 of the D.V. Act - proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings or not? - Whether or not the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- A proceeding in which the party asserts the existence of civil rights conferred by the civil law or by statute and claims a relief for breach thereof would be a proceeding of civil nature and the proceeding which upon conclusion results in the imposition of sentences, such as death, imprisonment, fine or forfeiture of property would be a proceeding of criminal nature.
The provision made for designating the Court of Judicial Magistrate or the Metropolitan Magistrate as the Court where application under Section 12 (1) of the D.V. Act can be made, appears to have been done only with a view to provide teeth to the powers of the Court - Making of criminal and civil courts simultaneously as appropriate fora to obtain the reliefs provided under the D.V. Act is a certain pointer to the fact that the character of the proceeding is not dependent upon the nature of the tribunal which is invested with the authority to grant relief, but upon the nature of the right violated and the kind of relief that may be had.
Applicability of provisions of the Cr.P.C. and providing of criminal consequences for breaches are only indicative of the intention of the Parliament to make various civil remedies available under the D.V. Act more effective and meaningful. Parliament thought in it's wisdom that mere giving of remedies of civil nature or an order of injunction or prohibition for that matter, may not be sufficient to enable the aggrieved person realise the benefits of civil remedies. It were the speed and fear of the criminal procedure generally and the penal consequences visiting the respondent for some of his indiscretions would what really make a disobedient respondent behave - keeping with the vision of Parliament which sees domestic violence as a human rights issue and a serious impediment to development. Unless a wide array of remedies is provided, and it is possible only in civil law and not in criminal law and the remedies are also made speedy and effective, which is possible by infusing them with criminality, the issues of human rights and development cannot be addressed properly. This is what seems to be the overall scheme and theme of the D.V. Act.
Proceedings under the Protection of Women from Domestic Violence Act, 2005 are predominantly of civil nature and it is only when there is a breach of the protection order as is contemplated under Section 31 and failure or refusal to discharge duty without any sufficient cause by the protection officer as contemplated under Section 33, the proceedings assume the character of criminality.
Whether or not the High Court can exercise its power under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- The literal rule of construction is about what the law says and means, as understood from the plain language of the law and not what the law should and ought to be, as understood by taking recourse to the external aids of construction. It is also well settled that literal construction should not be excluded only because the consequences lead to some undesirable results or penalty - In the case of TATA CONSULTANCY SERVICES VERSUS STATE OF ANDHRA PRADESH [2004 (11) TMI 11 - SUPREME COURT], the Hon'ble Supreme Court has cautioned the Courts by observing that the Court should not be overzealous in searching for ambiguities or obscurities in the words which are plain.
Sub-section (1) of Section 28 clearly lays down that all proceedings taken under Sections from 12 to 23 and in respect of offence under Section 31 shall be governed by the provisions of Cr.P.C. except as otherwise provided in the D.V. Act. It means that only such of the provisions of the Act as would lay down a particular procedure to be followed by the Magistrate, which would have prevalence over the provisions of the Cr.P.C. to the extent of their inconsistency with the specific provisions of the D.V. Act.
A plain reading of Section 482 of Cr.P.C., which saves inherent power of the High Court, indicates that the power is to be exercised by the High Court not just to quash the proceedings, rather it has to be exercised for specific as well as broader purposes. The exercise of the inherent power has been delimited to such purposes as giving effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice - This would show that this power is capable of being used by either of the parties and not just by the respondent seeking quashing of the proceedings under Section 12 of the D.V. Act. If this power is removed from Section 28 of the D.V. Act, the affected woman may as well or equally get adversely hit, and this is how, the very object of the D.V. Act may get defeated.
The reference is returned accordingly.
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2018 (5) TMI 2136
Cancellation of registered sale deed - authority of law to cancel the registered sale deed, after a sale deed has been registered, under the provisions of the Registration Act, 1908 even if allegation of impersonation/fraud are made - allegations of fraud are essentially, an allegation of fact which need examination of oral or documentary evidence and can be adjudicated on the basis of evidence to be led by the parties before competent civil court or not? - Whether the judgment in the case of RAJ KUMARI VERSUS STATE OF U.P. THR. PRIN. SECY. DEPTT. OF REVENUE, LUCKNOW & OTHERS [2014 (3) TMI 1206 - ALLAHABAD HIGH COURT] or the judgment in the case of RADHEY SHYAM ARORA VERSUS STATE OF U.P. AND 6 OTHERS [2013 (11) TMI 1802 - ALLAHABAD HIGH COURT] lays down the correct law?
HELD THAT:- On going through the Division Bench judgments in Raj Kumari and Radhey Shyam Arora, we do not find any conflict in the conclusions arrived. In Raj Kumari, a Division Bench while examining the issue that whether an administrative authority while acting upon the government order dated 13.08.2013 could have cancelled a registered sale deed by relying upon a Full Bench judgment of Andhra Pradesh High Court in Yanalla Malleswari Vs. Ananthalu Sayamma, [2006 (10) TMI 517 - ANDHRA PRADESH HIGH COURT] held that once incumbents who have proceeded to execute the sale deed, have no authority to execute sale deed then rightful order has been passed and accordingly in the facts of the case, there is no occasion for this Court to take a different or contrary view as any interference would subscribe void transactions.
Whether a sale deed registered under the Act, 1908 can be cancelled or set aside by registering authority or by any other authority invoking administrative powers, if the registration is questioned on the count of impersonation/fraud? - HELD THAT:- The Government Order dated 13.8.2013 confers unfettered and arbitrary powers upon the Registering Authority in violation of the express provisions of the Registration Act and such Government Order cannot be invoked to annul a document. The Government Order dated 13.8.2013 is not only arbitrary but is wholly without jurisdiction and cannot be sustained.
If this Court while undertaking the powers under Article 226 of the Constitution of India interferes with the orders challenged in this petition then that would result into restoration of an illegality. It is well settled that powers under Article 226 of the Constitution of India must not be exercised if that restores and perpetuates an illegal order. Hon'ble Supreme Court in G. Venkateswara Rao Versus Government of Andhra Pradesh and others, AIR 1966 SC 828 concluded that though the State Government had no power to review its earlier order but if quashing of order reviewed would lead to restoration of an illegal order then High Court must refuse to exercise its extraordinary discretionary power. It is also well settled that the discretionary power vested with this Court is supposed to be invoked by taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, the nature and extent of injury that is likely to ensue by such grant or refusal, etc. and further that no writ, order or direction is required to be given if that does not subscribe to justice or serves the cause of justice.
In the case in hand, as already stated, it is the position admitted even by the petitioner that the sale deed was registered in her favour subsequent to registration of sale deed in favour of respondent no. 4, Smt. Sheela Rai. In view of this admission, it would not be appropriate to invoke the powers under Article 226 of the Constitution of India in favour of the petitioner as that would restore an illegality. The writ petition, as such, deserves to be dismissed.
The writ petition, hence, is dismissed.
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2018 (5) TMI 2128
Scope of Judicial Review - Withdrawal of a Request of Proposal issued by the Union Ministry of Defence (MoD), for procurement of forty-five (45) Bird Detection and Monitoring Radar Systems - Accrual of enforceable rights - HELD THAT:- A long line of decisions of this Court settles the scope of judicial review in matters relating to award of contracts by the State and its instrumentalities. The Supreme Court, in TATA CELLULAR VERSUS UNION OF INDIA [1994 (7) TMI 307 - SUPREME COURT] reviewed the law on award of public contracts and held that The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free arbitrariness not affected by bias or actuated by mala fides.
Again, in Master Marine Services Pvt. Ltd. v. Metcalfe and Hodgkinson Pvt. Ltd., [2005 (4) TMI 579 - SUPREME COURT], it was stated that the role of the Court is not to review or oversee the award of contract, on the merits of the decision, but rather consider whether the decision making was regular, legal, procedurally fair and untainted by mala fides.
On reading of the above judgments, it is clear that the courts can review a tender process or tender stipulation, on grounds of proven procedural irregularity. In judicial review, a court under Article 226 of the Constitution reviews the decision-making process, its legality and procedural regularity and not the merits of the decision of the executive agency. The principal decision maker is the administrative or public agency - the uniform judicial view has been that public law review of tender matters ought to be exercised, judiciously. Such judicial review must be restrained to ensure that the choice or decision is made "lawfully" and not to exercise oversight over whether choice or decision is "sound". The state cannot be compelled to enter into a contract with any entity and ultimately even in tender related cases, commercial considerations ought to be paramount.
In the present case, the Petitioner’ petition premised on its contention that it is the lowest bidder and therefore the Union MoD, should be directed to enter into a contract with it. This court is of the view however, that it is a settled principle of law that no vested right accrues on the lowest bidder and the government has the right to withdraw the bid with valid reasons - the MoD’ contentions that the Petitioner’ bid, if allowed to stand would have resulted in unfairness to other Indian bidders, because all of them tendered in Indian currency, whereas the Petitioner tendered in a manner that allowed it to hedge in foreign currency. This, according to MoD resulted in an unequal playing field, which compelled it to cancel and withdraw the bid.
The decision to award a public contract is not based merely on factors such asfulfilment of technical qualifications and financial viability of the offer of a given bidder but much more. The vital public interest is a necessary condition, which invariably informs every decision of the executive authority or agency that is to award the contract - this Court is satisfied that the withdrawal of the RFP dated 30.04.2012 is not arbitrary and fresh RFP issued dated 31.08.2016 does not call for any interference - petition dismissed.
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2018 (5) TMI 2110
Seeking Injunction restraining the respondent authorities - breach on the part of the petitioners of the terms of the loan covenants entered with the State Bank of India - threatening to publish photographs, names and addresses of the petitioners in leading newspapers - HELD THAT:- From the documents annexed to the writ petition there is no doubt that the Company of which the petitioners are directors and guarantors (for the financial assistance availed of by the Company), have acknowledged and admitted their liability in respect of the credit facilities obtained from the respondent bank. The response of the Company to the notice under Section 13(2) of the SARFAESI does not dispute this liability. It is also clear from the impugned letter dated 19th November 2014, which is under challenge in this proceeding, that the Company had been advised to repay the loan amount by 10th December 2014 and that admittedly no steps have been taken by the Company thereafter to honour its financial obligations to the respondent bank. The company has instead filed a suit and an application before the Debts Recovery Tribunal in an attempt to push back their obligations to the bank.
The judgement of this Court provides a window of "Special Circumstances" when the bank can proceed with such coercive measures against borrowers who have committed deliberate default of the RBI Guidelines with mala-fide intention. This window cannot, however, be applied in the present case since, it cannot be from the material on record said that the Company has wilfully defaulted in its financial obligation to the respondents Bank or that the petitioner as Directors and Guarantors of the Company can be held liable for the conduct complained of on the part of the Company. The decisions relied on by the Bank with regard to the limited sphere of interference of a Court in relation to show-cause notices are not applicable since the impugned letter dated 19th November, 2014 cannot be construed as a show-cause notice per-se.
The interim order passed by this Court on 20th January, 2015 is confirmed.
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2018 (5) TMI 2097
Maintainability of writ appeal - Seeking police to register a crime and investigate it - Criminal breach of trust - misappropriation breaking out in the open - misdeeds amounting to cognizable offences - police refused to register an FIR - criminal jurisdiction - principle of issue estoppel, first and foremost, affect the writ petition or not? - Permission to do away with the statutory remedies and, instead, take a straight recourse to judicial review? - Ratio v. Obiter v. Holding - Lalita Kumari - Are there any issues sub silentio? - Can a complainant disregard the alternative remedies provided under, say, the Criminal Procedure Code and, instead, insist on a writ remedy? - Refusal to Register a Crime-the Alternative Remedies.
Is the writ appeal maintainable? - HELD THAT:- Section 5 of the Kerala High Court Act mandates that an appeal shall lie to a bench of two judges from "(i) a judgment or order of a Single Judge in exercise of original jurisdiction), and (ii) a judgment of a Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in exercise of original jurisdiction by a subordinate court." - there is no exclusion of the orders passed by a learned Single Judge in exercise of a criminal jurisdiction." - Given the emphatic enunciation of law by a co-equal Bench of this Court, it is held that the intra-court appeal is eminently maintainable.
Does the principle of issue estoppel, first and foremost, affect the writ petition? - HELD THAT:- The issue of estoppel stands merged, as observed by the Supreme Court, State of Jharkhand v. Lalu Prasad Yadav [2017 (5) TMI 490 - SUPREME COURT] in the principles of Autrefois acquit and Autrefois convict, both of which find enshrined in article 20(2) and section 300 Cr.P.C. Indeed, issue estoppel, a common law doctrine, has been well-entrenched and oft-applied to criminal proceedings. The courts in India, too, have applied this principle at all levels, Apex to trial courts - given the finding on maintainability in the next few paragraphs, this issue becomes academic. And academic issues need no adjudication. So we reckon that our finding on the threshold issue, alternative remedy, obviates an answer to this issue.
Does the Supreme Court in Lalita Kumari [2013 (11) TMI 1520 - SUPREME COURT] permit a complainant to do away with the statutory remedies and, instead, take a straight recourse to judicial review? - Pithily put, what is the holding of Lalitha Kumari? - HELD THAT:- The issue before the Supreme Court was this: is a police officer bound to register an FIR under section 154 of Cr.P.C., upon receiving any information relating to the commission of a cognizable offence or has he got the power to conduct a preliminary inquiry to test the veracity of such information before registering the crime? - Lalita Kumari's holding is simple and straight: If an aggrieved person approached the police complaining of a cognizable offence, they must register an FIR and promptly enquire into the crime, the arrest of the accused not being an essential step in that process.
Ratio v. Obiter v. Holding - HELD THAT:- Holding emerges when the ratio, the pure principle of law, is applied to the facts of a particular case. That is, a holding is what the court actually decides after combining the facts of a case with the legal principles it deduces in the context of that case - Ratio requires adherence to the extent possible, but the holding compels compliance fully. Stare decisis admits of no exception to a case-holding in the adjudicatory hierarchy.
Lalita Kumari - Are there any issues sub silentio? - HELD THAT:- Once an issue, though present by implication, has not been expressly dealt with and pronounced upon, the judgment on that issue remains sub silentio. Any issue, thus, rendered sub silentio cannot be treated as a precedent - Lalita Kumari, however, had no occasion to consider the issue we have now been confronted with: The alternative statutory remedies available to a complainant after the police's refusing to register an FIR. So we may safely conclude that Lalita Kumari does not obliterate, as it were, the alternative statutory remedies available to the aggrieved complainant.
Can a complainant disregard the alternative remedies provided under, say, the Criminal Procedure Code and, instead, insist on a writ remedy? - HELD THAT:- Despite the repeated attempts of some members failing to bring the police to the Church's door, Shine maintains that one complaint pending before the Magistrate does not affect his right to maintain another one on his own. In Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar [1961 (11) TMI 63 - SUPREME COURT], a three-Judge Bench of the Supreme Court has held that that there is nothing in the law prohibiting a second complaint on the same allegations when a previous complaint had been dismissed under s. 203 of the Code of Criminal Procedure. Indeed, Pramatha Nath deals with the second complaint by the same person upon having the first one dismissed. It does not apply here.
How Has the Impugned Judgment Proceeded? - HELD THAT:- We have already discussed Lalita Kumari and extracted its holding. We have also held that Lalita Kumari has not dealt with the remedies available to an aggrieved person on whose complaint about a cognizable offence the police have not acted. In fact, Lalita Kumari has only dealt with the issue whether the police could exercise their discretion and indulge in any preliminary enquiry before they register a crime. Therefore, the precedents speaking on a complainant's alternative remedies have not been set at naught. They still hold the field. That said, we must now examine the precedential position on that issue.
Refusal to Register a Crime-the Alternative Remedies - HELD THAT:- Clear and compelling are the judicial directions vis-à-vis an aggrieved person's approaching the High Court. But, disregarding the efficacious alternative-remedies under the Code, the complainants insisted that in Lalitha Kumari, a Constitution Bench has cleared the complainant's path of all statutory hurdles to approach the High Court, straight away.
Shine Varghese has faltered at the first hurdle-the alternative remedy, which he has on more than one count. That is, the impugned judgment suffers from legal infirmity and deserves to be set aside - writ appeal allowed.
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2018 (5) TMI 2048
Levy of Terminal Tax - Hindi version of the statutory provisions and that of English version has come before the Courts from time to time - Whether Hindi version or English version of The Terminal Tax (Assessment and Collection) on the Goods Exported from Madhya Pradesh Municipal Limits Rules, 1996, was ordered to be decided at the time of passing of the final order and if the Court finds contradictory position, then the matter would be referred to the High Court? - section 355 read with sections 127 and 129 of the Madhya Pradesh Municipalities Act, 1961 - HELD THAT:- As per section 4 of the Language Act, the bills introduced in the State Legislature; the Acts passed by each House of the State Legislature; all orders, rules, regulations and bye-laws are published in Hindi. The bills are introduced in Hindi, passed in Hindi and assented to by the Hon'ble Governor. The language of the bill is in Hindi. In terms of Article 348, the translation is required to be published in English language under the authority of the Hon'ble Governor in the official gazette, which is deemed to be an authoritative text in the English language. Thus, the authoritative text prepared in terms of sub-clause (3) of Article 348 is not an authoritative text discussed and resolved by the State Legislature, but is an action performed by the Executive in exercise of the administrative powers of the State. The English version is not discussed by the State Legislature. Therefore, the Act has been passed in Hindi which is a Legislative action whereas the authoritative text in English is an Executive action. Therefore, in case of conflict between the two, the Legislative enactment will prevail rather than an Executive action of translation though published under the authority of the Hon'ble Governor. Such is the view taken by the Himachal Pradesh High Court as well.
The language of the State being Hindi and the Act having been passed in Hindi, the English version of such text in Hindi is an act of the Executive, which will not prevail over the legislation enacted by the State Legislature in Hindi. Therefore, in case of conflict between Hindi version and the English version, the Legislative version would prevail rather than the authorized version published under the authority of the Hon'ble Governor as an Executive function - Petition dismissed.
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2018 (5) TMI 2036
Demand for liquidated damages after dissolution of AMC - plea of the petitioner is that the respondent suffered no damages due to delay in delivery of the handsets and hence the respondent is not entitled to any damages/penalty - fraud and unjust enrichment or not? - Whether the Claimant is entitled to claim no. 1? - HELD THAT:- It is clear that the same is absolutely without merits. It is a fact recorded by the learned Arbitrator based on the agreement and documents placed on record that a sum of ₹ 2,47,43,500/- became payable on account of the delays by the petitioner - the terms and conditions of the AMC clearly provides that if the petitioner fails to deliver the repaired handsets within the stipulated period of 14 days the petitioner shall be liable to pay a penalty @ ₹ 100/- per day per terminal. In view of the specific clause merely because there was a delay in raising of the bill would not do away the liability of the petitioner under the said clause.
Whether the claim no. 1 or any part thereof is barred by limitation? - HELD THAT:- Where a sum is named in a contract as liquidated amount payable by way of damages, the party complaining of a breach can receive such amount only if the amount is a genuine pre-estimate of damages fixed by both the parties and found to be such by the Court. In other cases where a sum is named in the contract as liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount, so stated. Reasonable compensation is to be fixed on well known principles that are applicable to the law of contract. Damage/loss caused is a sine qua non for applicability of the section.
A perusal of the cross-examination of Shri Ramesh Singh shows that he has clearly pointed out that the customers of the respondent had to suffer as there was delay in return of the handsets. It is manifest that the reputation of the respondent suffered. In an industry disgruntled customers do not help in expansion of business. It is quite clear that when a manufacturer of mobile telephones is unable to speedily repair defective telephones supplied to its customers it is bound to cause a loss of reputation/image. Such loss of reputation/image would lead to loss of revenue. Such damages/loss of revenue cannot easily be quantified as is sought to be argued - this was clearly a case where the respondent had suffered damages. The nature of damages suffered would be such where it would not be easy to lead evidence to assess the nature of damages suffered. The damages quantified in the contract can be said to be a genuine pre-estimate of the damages. The learned Arbitrator rightly concluded that award of the said damages as stipulated in the contract does not lead to unjust enrichment of the respondent.
It is not for this Court to reassess the evidence to negate the findings of fact recorded by the learned arbitrator - Further, the learned Arbitrator on account of the fact that part of the claim of the respondent was barred by limitation only awarded about 50% of the amount claimed by the respondent as damages for late repairing of the handsets. The above is in any case a reasonable compensation for damages suffered by the respondent and cannot be said to be contrary to Section 74 of the Contract Act.
Petition dismissed.
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2018 (5) TMI 2027
Dishonor of Cheque - insufficiency of funds - case of applicant is that the order is against the statutory provision of law and realization of fine ought to have been stayed by the Appellate Court during the pendency of the appeal specially when the bail has been granted to the applicant - HELD THAT:- It is evident that the Appellate Court may impose a condition while suspending the sentence, however, the power of imposing conditions is discretionary and the Court while suspending the sentence can always direct the applicant to deposit fine in the court but the amount of such condition must not be unreasonable, onerous and unjust so as to deprive the applicant from being released on bail.
Admittedly, in the present case, the applicant has been convicted under Section 138 of Negotiable Instruments Act and in the circumstances of the case, he would be ordinarily granted bail during the trial in view of the facts that the offence is bailable. Even during the course of trial, he has been on bail, therefore, while exercise of appellate power, a person must not be made to suffer by imposing such condition for being released on bail, which may be onerous - In the case in hand, although the applicant has been directed to be released on bail but a pre-condition has been imposed to deposit 1/4th of amount of the fine of ₹ 75,00,000/- for suspension of sentence, which appears to be onerous and harsh.
Pre-condition to deposit 1/4th of amount of the fine of ₹ 75,00,000/- for being released on bail being onerous and harsh is liable to be modified to the extent of only 10% of the fine of ₹ 75,00,000/- imposed by the appellate Court - Application allowed in part.
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2018 (5) TMI 1999
Leave to amend the plaint - Whether plaintiff is entitled to proceed against sister vessels after having filed a Suit for arrest of one of the sister vessels M.T. PRATIBHA NEERA and after having obtained an order of arrest? - HELD THAT:- As provided in Article 3 plaintiff can arrest either a particular ship in respect of which the maritime claim arose or any other ship which is owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship.
The position under the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, which came into force on 1st April, 2018, may also be noted. Section 5 of the said Act makes it clear that the High Court may order arrest of any vessel in respect of a maritime claim if the person who owned vessel is liable for the claim and is the owner of the vessel when arrested. This means the particular vessel in question. Section 5(2) provides that the High Court may also order arrest of any other vessel in lieu of the vessel against which a maritime claim has been made. Thus, under this Act too, plaintiff can arrest either the particular vessel or a sister vessel. Only one vessel can be arrested and not multiple vessels.
Considering the position under the Brussels Convention 1952, and also under the position under the Admiralty Act, 2017 it is clear that it is not open to plaintiff to arrest more than one vessel in respect of its claim. The plaintiff has already arrested the vessel MT PRATIBHA NEERA. Consequently, plaintiff is not entitled to arrest any of the other sister vessels. The purpose of impleadment is only to assert a claim against the sister vessels and seek a decree against the vessels and/or the sale proceeds. Consequently, if the relief of arrest of the sister ship cannot be granted then the sister ship or its sale proceeds cannot be proceeded against and a decree granted. Hence no question arises of impleadment of the sister vessels.
The submission that plaintiff would not be able to stake its claim against sale proceeds of other defendant is fallacious. Plaintiff cannot obtain decree against sister ship of the offending vessel at all. Question of other creditors being prejudiced or not do not arise in as much as that has no bearing on the additional defendant being impleaded. Once the company goes into liquidation, all the properties of the company including various vessels become the “properties available to all” other than such claimant who has executed warrant of arrest against any vessel prior to commencement of liquidation proceedings.
Chamber summons accordingly stands dismissed.
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2018 (5) TMI 1955
Denial of registration to the students who acquired qualification of ANM/GNM from the Singhania University - he Singhania University is established by law - HELD THAT:- Once the controversy has already been adjudicated by the Hon'ble Apex Court in the case of B.L. ASAWA VERSUS STATE OF RAJASTHAN AND ORS. [1982 (3) TMI 282 - SUPREME COURT] then there is no question to hold that any error has been committed by the learned Single Judge in directing the appellant RNC so as to deny the registration on the pretext that recognition is necessary from the appellant Rajasthan Nusing Council.
If any University is established by law and imparting the course in the form of diploma and degree or qualification, that cannot be questioned by the appellant RNC for the purpose of registration.
Appeal dismissed.
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2018 (5) TMI 1939
Condonation of delay of 65 of days in filing - Time limitation - grant of Arbitral award - Section 5 of the Limitation Act - HELD THAT:- A careful reading of the application would show that the application is highly casual in nature, it lacks material particulars and does not disclose sufficient cause for condoning the delay.
While considering the application seeking condonation of delay, the period of delay is not the criteria. A short delay may not be condoned in the absence of an acceptable explanation while a large delay may be condoned if the explanation is satisfactory. Courts cannot lose track of the fact that normally after the expiry of the period, the right to sue extinguishes and the other side acquires a right which should not be usually disturbed as it would cause injustice to the opposite party.
In this case, the application seeking condonation of delay is completely silent as to when the certified copy of the impugned judgment was received and the causes for the delay in filing the present appeal. Reading of the application would show that delay was caused on account of times spent in seeking opinion from some counsel - This in our view cannot be treated as sufficient grounds as no details have been provided and only a bald statement has been made. In the absence of any satisfactory explanation, it cannot be said that the delay was caused due to bonafide reasons and not on account of negligence or inaction. The Court cannot lose track of the fact that the appellant is not an illiterate litigant but a company which admittedly has its own legal department which is evident from reading para 2 of the application.
Application dismissed.
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2018 (5) TMI 1834
Decree for recovery - It was the case of the Plaintiff that it is only after complete satisfaction of the work carried out is done under Rules 65 to 69 of the Electricity Rules, that the fees for inspection by the electrical inspector is paid - Held that:- A perusal of the evidence and the pleadings on record clearly shows that the only justification being raised to withhold the payment was non-certification by REL, the obligation of which was not upon the Plaintiff. In the absence of any deficiencies being pointed out in the work executed by the Plaintiff, there can be no justification in withholding payments. The arrangement between the Defendant and its own Joint Venture Partner i.e. REL is an internal arrangement between them, and the Plaintiff cannot be saddled with outstanding amounts in this manner owing to their own internal issues. The Defendant having not led any evidence whatsoever to justify the withholding of the payment and having not pointed out any deficiencies in the work executed and further having deducted the TDS and deposit of the said tax with the government for the entire bill amount, there can be no justification in withholding the outstanding payments.
The witness of the Defendant categorically admits that this contract was not a part of the work order between the Plaintiff and the Defendant. Though the electrical inspector’s approval is required for all installations, Clause 1.1 (h) does not fix the burden of obtaining the inspector’s approval upon the Plaintiff/Contractor. As stated by the Plaintiff’s witness, it was the Defendant’s responsibility and in fact the Defendant had paid the fee required for obtaining the electrical inspector’s approval. It is clear that it was the Defendant’s responsibility to get the approval of the electrical inspector.
Appeal dismissed - decided against appellant.
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2018 (5) TMI 1806
Release on Bail - sections 109 read with section 120B IPC and 13(2) and 13[(1) (e) of Prevention of Corruption Act, 1988 - Held that:- Without expressing any opinion on the merits of the case and considering the facts and circumstances of the case as well as the sentence awardable to the applicants, the applicants Garima Bhushan and Karuna Singh are entitled to be released on bail.
As regards Sunny Yadav, we are not inclined to grant him bail, hence, his bail application is accordingly rejected.
Registrar General is directed to send a copy of this order to the trial court for necessary information and compliance forthwith.
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2018 (5) TMI 1762
Broadcasting services - Whether the impugned Regulations and the Tariff Order can exist and operate through the powers conferred to and under the TRAI Act, 1997?
Whether the impugned Regulations and the Tariff Order would impinge upon the provisions of Copyright Act, 1957?
Held that:- The jurisdiction of the enactments have already been dealt with in extenso. Suffice it is to state that TRAI Act involves regulation of airwaves and frequencies being public properties, touches upon various stakeholders with primacy to the public interest. To put it differently, the general public is the king, being the subscriber whose interest should be guarded and protected under the Act as a prime factor. TRAI is thus, obligated to take adequate measures as mandated by the statute. The Cable Television Networks (Regulation) Act, 1995 and the Indian Telegraph Act, 1885 go with the TRAI Act strengthening the hands of the authority. TRAI Act came into being on the need enough to have a better enactment than the Telegraph Act, 1885, supported and safeguarded by the Cable Television Networks (Regulation) Act, 1995. This Act deals with cable television network. That is the reason why, the authority is the same along with the definition of digital addressable system and introduction transmission of programmes through digital addressable system etc. Therefore, this enactment deals with the last part of the broadcast.
Section 2(k) of the TRAI Act merely explains a telecommunication service. Therefore, even assuming it can be divided into three parts as suggested by the learned counsel for the petitioners, the conclusion does not change. The TRAI Act does not deal with a mere means of transmission alone. Perhaps the petitioners do understand it rather well. That is the reason why they laid the challenge before the Division Bench of Delhi High Court to the very provision. The principle governing the noscitur a sociis cannot be applied as the petitioner suggested. There is no ambiguity on the definition provision.
The permission obtained from the Central Government would bring a broadcaster within the fold of a service provider. The petitioners themselves claimed and raised disputes as service providers. A finding was also rendered by the Court which reached finality. Thus, as a natural sequitor, the Regulations and Tariff Order would ipso facto apply to the petitioners' case.
While there is no BRR involved under the TRAI Act, no right has been given to a television channel under Section 37 of the Copyright Act. Merely because, the television channel becomes a broadcaster, no independent right can be placed as against the “broadcasting” which may involve any work or a programme coming under the Act's purview. In this connection, the definition of TV Channel as adumbrated in the impugned regulations will have to be seen. While the copyright does not make any reference to a TV Channel, it has been referred accordingly as such, only after obtaining permission for downlinking under the impugned regulations. Therefore, the TV channel has been understood in a very restrictive manner under the impugned regulations. Needless to state that the Cable Television Networks (Regulation) Act, 1995, also deals with the television channel as against the Copyright Act.
A party, who approbates and reprobates should not be shown any indulgence by the Court. Certainly, the law governing "issue estoppel" would also come into play. It also applies to the declaration made by the Court on the basis of the stand taken by the petitioners that it is a service provider under the TRAI Act.
Both the Cable Television Networks (Regulation) Act, 1995, and the TRAI Act are coming under entry 31 of List I of VII schedule. Therefore, if once competency is attributable to the Cable Television Networks (Regulation) Act, 1995, it is axiomatic that the same has to be extended to the TRAI Act as well. On the same analogy, a power conferred under the aforesaid Act cannot be imported into the Copyright Act through the amendments made. Merely because the petitioners are affected, the impugned regulation and the amendment would not partake the character of content. While there is no material to support the conclusion on content, as contended by the petitioners, the judgments inter se governing the field have not been taken note of.
Petition disposed off.
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